The Pipeline That Refuses to Die

by Sandra Zellmer

February 16, 2012

Last month, President Obama denied TransCanada’s permit application for the Keystone XL pipeline because a congressionally mandated deadline did not allow enough time to evaluate the project once Nebraska completed its analysis for re-routing of the pipeline around the Sand Hills.

A January 26-29 poll from Hart Research Associates found that, after hearing arguments for and against the pipeline, 47% of voters in four Presidential battleground states polled agree with President Obama’s decision while 36% disagree with it.  Yet just this week, the U.S. Senate is considering whether to add language to an unrelated highway authorization bill to force the President to approve the Keystone XL tar sands pipeline

The pipeline rider has the backing of 44 Republicans and one Democrat in the Senate.  Passing it is a bad idea on several levels.  For one thing, riders like this one short-circuit the congressional process.  By inserting an unrelated substantive provision like this into an authorization or appropriation package, the provision doesn’t receive the scrutiny that it would if it were forced to stand on its own, and Senators who are against the pipeline might feel compelled to vote in favor of the package because it includes other benefits for their constituents.  (For this reason, many state constitutions forbid appropriations riders, but the federal constitution does not.) For more on this see my article Sacrificing Legislative Integrity at the Altar of Appropriations Riders:  A Constitutional Crisis.

For another thing, this rider would effectively strip the decisionmaking authority away from the President and the Department of State, the latter of which has been considering the issue, and has developed expertise on it, over the course of the past several years now.  Finally, and most compellingly, this rider, if passed, would undermine if not defeat state prerogatives over the location and regulation of the pipeline.

If a majority of Congress wants to pass legislation to authorize this or any other pipeline, so be it.  But congressional leaders ought to subject any such provision to the full legislative process so that it can be considered fully on its own merits.

Also from Sandra Zellmer

Sandra Zellmer is the Robert B. Daugherty Professor of Law at the University of Nebraska College of Law, where she began teaching in 2003. She is also a co-director of the University's Water Resources Research Initiative, an interdisciplinary educational and research effort.

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