Power to stonewall

Dec. 1, 2014
Presidential stonewalling of the Keystone XL pipeline is hurting the US. Congress should exercise its constitutional power and end the damage.

Presidential stonewalling of the Keystone XL pipeline is hurting the US. Congress should exercise its constitutional power and end the damage.

Legislation that died in the Senate on Nov. 18 didn't go far enough. It only would have called for approval of the Keystone XL border crossing, ending 6 years of Executive Branch temporizing. The Senate vote itself was a concession by outgoing Democratic leaders to Mary Landrieu of Louisiana, a project supporter needing to isolate herself from President Barack Obama in a difficult runoff election. For an important energy megaproject, this represents cavalier mistreatment.

Obama says he wants to be certain Keystone XL wouldn't aggravate climate change. Yet the State Department already has cleared the project on that and other grounds. The real consideration blocking approval is Obama's reluctance to aggravate pressure groups that have stigmatized Keystone XL because it would carry-along with other, lighter materials-blended bitumen and heavy oil from Canada. On the sole basis of environmentalist exaggeration, therefore, the US:

• Denies itself expanded linkage with an enormous, secure supply of the low-value feedstock many of its refineries are uniquely configured to process.

• Creates doubt that cross-border energy projects ever can be approved when activist minorities oppose them.

• Raises the political risk of investing in projects involving energy forms disfavored by environmentalists.

• Gives allies reason to question the value of American friendship by treating its relationship with Canada as a matter of inferior concern.

Fair-minded Americans should find the snub to Canada especially troubling. Because of their distance from markets and low quality, bitumen and heavy oil from Alberta and Saskatchewan naturally sell at discounts to lighter crude oils produced closer to refining centers. But a pipeline bottleneck, tightening as oil-sands output grows, is forcing producers to use costlier transport alternatives. The extra expense further lowers bitumen values at the mine and wellhead, costing Canadian producers and governments billions of dollars per year. In fact, transportation capacity soon might become a physical constraint on production. The US thus lets the demands of a relatively few extremists, with their wailing about "dirty oil," prevail over activities vitally important to the economy of a neighbor and heretofore great friend.

This precedent is dreadful. Congress must end it.

The goal should go beyond securing the overdue approval of the Keystone XL border crossing, important as that is. It should be to ensure no president ever again compromises American security and foreign relations in service to narrow obstructionism on questions of international pipelines.

Early in the next session, Congress should pass legislation claiming jurisdiction over pipelines that cross borders with Canada and Mexico. The current requirement for a presidential permit for cross-border crude oil and products pipelines stems from a 2004 executive order expanding on and amending a similar order of 1968. Separate executive orders cover gas pipelines. The orders invoke the president's authority as commander-in-chief of the military and Executive Branch responsibility for foreign policy.

But Congress, too, can argue for authority over cross-border pipelines on the basis of its constitutional power to regulate foreign commerce. Lawmakers have been content to leave permitting in this area to the Executive Branch. In cases questioning presidential decisions on cross-border pipelines other than Keystone XL-most brought by project opponents-courts have hinted presidential authority derives in part from congressional indifference. In a 2010 decision about a case brought by the Sierra Club, for example, the US District Court for the District of Minnesota validated the presidential permit for the Alberta Clipper pipeline, noting that many other such permits had been issued and that "Congress's inaction suggests that Congress has accepted the authority of the president to issue cross-border permits."

So now the president pursues favor from a minority constituency by exercising vague permitting authority so as to keep from issuing a permit overwhelmingly in the national interest and supported by most Americans. This is perverse. It's time for Congress to assert itself.