We Won Keystone XL Fight in Lame Duck Senate. What Happens When GOP Congress Approves It?

Native American march in Washington, DC to oppose the Keystone XL pipeline, photo by Resa Sunshine
Native Americans march in Washington, DC to oppose the Keystone XL pipeline, photo by Resa Sunshine

By Anne Meador

On November 18, the Senate effort to approve construction of the Keystone XL pipeline fell one vote short of the necessary supermajority. As the last votes were counted and Senator Mary Landrieu’s hopes of proving her undying fealty to Big Oil were dashed, a lone voice from the gallery burst out in song.

The Lakota singer proclaimed a warrior’s victory. At the same time, his wail lamented the craven, soulless spectacle of a body enthusiastic to build a “continent-spanning death-funnel.”

Outside the Chamber, in contrast to the noble song, cue the Imperial March played on a kazoo. Senator Mitch McConnell greeted the press, eager to say that Keystone XL will be “early on the agenda” of the next Congress.

A bill to approve construction of the Keystone XL pipeline is likely to pass both the House and Senate during the next session, bypassing the president’s authority to approve cross-border pipelines.  President Obama has made hints that he would veto it. But if Obama were to sign such a bill, or if Republican Senator Hoeven attaches Keystone to a bill he would find hard to veto, what would happen next?

Federal approval of KXL doesn’t clear the way for TransCanada to build its pipeline, at least not yet. In April, President Obama yet again put off the decision until a Nebraska lawsuit is resolved. And nothing has changed since last spring.

Thompson v. Heineman challenges a state law empowering the Nebraska governor with the authority to grant eminent domain to TransCanada. That authority properly resides with the Nebraska Public Service Commission. In April, a court ruled the law unconstitutional, leaving TransCanada with no legal route through the state for Keystone XL.

The Nebraska ruling happened to coincide with the end of the comment period on the State Department’s Environmental Impact Statement for Keystone XL and the imminent announcement of President Obama’s long-awaited decision on the pipeline. However, Obama punted once again, largely due to the lawsuit. Even with federal approval, there is currently no route for the pipeline through a crucial state. (It’s another good reason to kill the pipeline, but all along Obama has chosen ambiguity over the obvious.)

The Nebraska Supreme Court heard oral arguments for the appeal on September 5, and a ruling is expected between late November and early February. The case looks strong for the landowners opposing the governor’s eminent domain powers.

A victory in the lawsuit means that TransCanada has to apply to the Nebraska Public Service Commission for review of a pipeline route. Meanwhile, the Keystone XL permit in South Dakota expired in June, and TransCanada was forced to re-apply in September.

There are more factors which will affect the next twists and turns for Keystone XL: falling crude prices, how much delay costs TransCanada and tar sand mines in Alberta, and re-routing of bitumen to “Keystone XL clones” like the Alberta Clipper.

We know two things for sure: One is that anybody who cares about avoiding environmental disaster and climate catastrophe can’t rely on two political parties in thrall to Big Oil. And two, Keystone XL will continue to face resistance by landowners, activists, and Native American tribes at every level.

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