Regulatory Déjà Vu: EPA Attacks State Department Review in a Last Ditch Effort to Derail Keystone Jobs and Energy Project

April 23, 2013

WASHINGTON, DC – The EPA yesterday filed comments on the State Department’s recently issued draft Supplemental Environmental Impact Statement for the proposed Keystone XL pipeline criticizing the extensive review of the project. EPA objected to the State Department’s draft statement citing “insufficient information” and asked for additional environmental analysis. This, despite the fact that the Department has issued over 15,500 pages in its NEPA review over the last four-and-a-half years.

Unfortunately, this is not the first time EPA has attempted to delay this landmark jobs and energy project. The agency filed essentially the same criticisms during the first Keystone XL application and NEPA review. On April 16, 2010, the State Department issued a draft EIS for public comment and on July 16, 2010, EPA rated the draft EIS as “inadequate,” causing the State Department to undertake a supplemental draft EIS that was finally issued on April 15, 2011. This process added months of additional review and achieved little change in outcome. Ultimately, the State Department ruled in its final EIS on August 26, 2011, that the pipeline would have limited adverse environmental impacts.

EPA is trying to further delay Keystone’s construction with a strategy that can best be described as paralysis by analysis. Additionally, the agency has argued - and the U.S. Court of Appeals for the D.C. Circuit ruled today - that EPA has post-permit veto authority under the Clean Water Act, which could apply to certain permits for Keystone XL. These actions are likely a harbinger of things to come: additional studies, more comment periods, followed by a series of never-ending lawsuits. To end these regulatory delays, Rep. Lee Terry has introduced H.R. 3, the Northern Route Approval Act, which will satisfy all NEPA requirements and address all necessary federal permits. The legislation specifically prohibits EPA from interfering with Clean Water Act permits. The legislation would also limit expensive and lengthy litigation that could doom the project.

"The Keystone XL Pipeline will be the most modern, highly-engineered pipeline built to date,” said Terry. “EPA's comments yesterday on the State Department's draft EIS are the perfect example of government run amok. It's unfortunate we have to legislate to keep government agencies from going rogue.”

The Energy and Commerce Committee approved H.R. 3 last week with a bipartisan vote of 30-18. The legislation is expected to be considered by the full House in the coming weeks.