CRS report: Congress can require Keystone oil pipeline approval

Capitol Hill lawmakers probably have the Constitution at their back if they require a permit for the Keystone XL oil sands pipeline that President Obama rejected days ago, according to the nonpartisan Congressional Research Service.


Republicans are mulling bills that require approval of Keystone XL, which would bring oil sands crude from Alberta to Gulf Coast refineries.

The Jan. 20 CRS legal analysis notes that while the executive branch has historically handled the approval of border-crossing facilities, it doesn’t have to be that way. “[I]f Congress chose to assert its authority in the area of border crossing facilities, this would likely be considered within its Constitutionally enumerated authority to regulate foreign commerce,” the analysis states.

Republicans are highly unlikely to have enough political support to win Senate passage of bills that require a permit, let alone Obama’s signature. But the CRS analysis may buoy Republicans rallying around the bills to attack Obama’s Jan. 18 denial of TransCanada Corp.’s permit application.

The four CRS attorneys write that their review “suggests that legislation related to cross-border facility permitting is unlikely to raise significant constitutional questions, despite the fact that such permits have traditionally been handled by the executive branch alone pursuant to its constitutional ‘foreign affairs’ authority.”

A House Energy and Commerce Committee panel will hold a hearing next Wednesday on Rep. Lee Terry’s (R-Neb.) bill that takes review of the pipeline away from the State Department and instead requires the independent Federal Energy Regulatory Commission to issue a permit.

Sen. John Hoeven (R-N.D.), who is planning a separate bill to put approval in the hands of Congress, requested the study. 

“I think this confirms what we have been saying all along – Congress has the authority under the Constitution to approve the Keystone pipeline,” said Ryan Bernstein, Hoeven’s deputy chief of staff and legal counsel.

“It gives great weight to not only our bill but any bill Congress considers,” he added.

Advocates of the project say it will boost energy security, create 20,000 jobs and support hundreds of thousands of others indirectly.

Republican leaders, GOP White House candidates and major business groups are pushing for the pipeline’s approval, and using the administration’s rejection to launch election-year attacks against Obama.

But environmentalists, citing a study by the Cornell University Global Labor Institute, call the job estimates vastly overstated

Green groups oppose the project due to greenhouse gas emissions and other ecological damage from Alberta’s oil sands projects, and fear of spills along the pipeline route that could pollute groundwater.

The Obama administration rejected Keystone’s permit last Wednesday, ahead of a Feb. 21 decision deadline required under a GOP provision in December's payroll tax cut extension deal. 

The State Department and the White House said the timeline prevented adequate review of TransCanada’s application, which was first filed in 2008. The administration, before the payroll deal, had delayed a decision until after the 2012 election.