On January 24, President Trump signed an executive memorandum inviting the Canadian firm TransCanada to resubmit its application to the Department of State for a presidential permit for the Keystone pipeline project, thus resurrecting a project that was, after much debate, shut down in 2015 by then-President Obama. First, what are the mechanics of approval for this second permit—can you walk us through the process?
The first step is for TransCanada to reapply for a permit, and the company has already announced that it is doing so. The new President will have the ultimate authority to approve a permit and could do so without much further evaluation because the environmental review has already been completed. But the President had indicated he wants to negotiate a commitment to use more American-made steel in the pipeline. Such negotiations could take time—or maybe the deal has already been struck. We don’t really know. In addition to federal approvals, state approvals in Nebraska and approvals in Canada, at the very least, are still necessary. And almost certainly we can expect lawsuits over all these approvals.
The proposed pipeline would carry approximately 800,000 barrels of Canadian “tar sands” oil from Canada to the Gulf Coast. What are the environmental concerns, if any? And are they significant enough to stop the project?
The two biggest environmental concerns are (1) the risk of leaks and spills, which exists for virtually all oil infrastructure, as we saw with the BP spill in the Gulf and the Exxon Valdez spill in Alaska, and (2) the increase in greenhouse gas emissions from Alberta tar sands, which have been estimated to be 17 percent greater than emissions associated with an equivalent amount of average crude oil. It was really the climate change impacts that drove President Obama’s denial of the project, but those concerns may not be a priority for the new President.
President Trump also signed an executive memorandum directing the Army to review and approve the Dakota Access pipeline in North Dakota. What are the mechanisms for approval of this controversial pipeline, which was the focus of protests by the Standing Rock Sioux Tribe?
Late last year, President Obama directed the Army Corps of Engineers to undertake further environmental review on alternative routes before making a final decision on granting an easement under the Mineral Leasing Act for the last segment of the Dakota Access Pipeline project, a segment that implicates the Standing Rock Sioux Tribe treaty right. Through his executive order, the new President directed the Army Corps to expedite this process and to “consider, to the extent permitted by law and as warranted” whether to rescind the Obama Administration’s notice of intent to undertake additional environmental review. So, under this directive, it is possible that the Army Corps would go forward and approve the necessary easement without any further environmental review. If that happens, there will surely be litigation by the Tribe and maybe others.
And what are the environmental concerns with the Dakota pipeline?
The Dakota Access Pipeline raises the same concerns as any other oil infrastructure—the risk of spills and the resulting potential for damage to drinking water and ecosystems.
Are either of these projects significant job producers? Supporters of both pipelines have held up the prospect of American jobs as a reason to approve them.
The Keystone Pipeline as originally proposed was estimated to produce something like 3,000 to 4,000 temporary construction jobs, for a year or two, and less than 50 permanent jobs to operate the pipeline, mostly in Canada. The use of American-made steel in the pipeline would have a multiplier effect in the steel industry, but even then, that effect would be temporary and short term. There are many other potential infrastructure projects—including badly needed upgrading of existing water, sewer, and gas pipelines in the states through which the pipeline would pass—that could create the same kind of jobs without the greenhouse gas emissions associated with burning tar sands.
Also, very little construction is left for the Dakota Access Pipeline—just the segment being protested by the Standing Rock Sioux Tribe—so the jobs argument is even more negligible there.
President Trump today spoke about cutting back on the time it takes for projects to undergo permitting reviews, including environmental review. He was referencing more than these two pipelines but also big construction projects throughout the country. Are federal permit reviews known to be onerous? Could they be streamlined?
This separate executive order directs agencies to prioritize infrastructure projects and to expedite environmental review for identified high priority projects. But these agencies must still fully comply with environmental laws, like the National Environmental Policy Act, before they can approve projects. So, if agencies take this order seriously, they presumably would prioritize the permitting process for important infrastructure projects over smaller private projects, but they cannot circumvent environmental review without a change in law by Congress.
Deborah A. Sivas is the Luke W. Cole Professor of Environmental Law at Stanford, the director its Environmental Law Clinic, and director of its Environmental and Natural Resources Law and Policy Program.