The State Department Releases Its Final EIS for the Keystone XL Pipeline. What’s Next?

The State Department Releases Its Final EIS for the Keystone XL Pipeline. What’s Next?

February 6, 2014
The State Department Releases Its Final EIS for the
Keystone XL Pipeline. What’s Next?

Overview
Figure 1. State Department Actions Evaluating the
On January 31, 2014, the U.S. Department of State released
Proposed Keystone XL Pipeline Project TPP
the Final Environmental Impact Statement (EIS) for the
Keystone XL Pipeline Project. Pursuant to the National
Environmental Policy Act (NEPA), the State Department
was required to prepare the EIS to assess the potential
impacts to the human and natural environment associated
with its decision to approve or deny TransCanada’s
application for a Presidential Permit.
The Keystone XL Pipeline Project would transport crude oil
across the U.S.-Canada border. In accordance with
Executive Order (E.O.) 13337, the construction, operation,
and maintenance of a pipeline that would transport crude oil
across the U.S. border requires a Presidential Permit from
the State Department. A number of such permits have been
issued in the past.

Source: Congressional Research Service.
In accordance with E.O. 13337, a decision to issue a permit
is predicated on the department’s determination that the
Does the Final EIS reflect a final decision on the
proposal would “serve the national interest.” With the
proposed pipeline? No. Analysis in an EIS is intended to
issuance of the Final EIS, the State Department said it will
inform the federal decision-making process, not document a
now focus on making that determination.
final decision. The NEPA process concludes when a federal
agency issues a final Record of Decision (ROD). A ROD
The Final EIS builds on a Draft EIS released in March
cannot be issued until the Final EIS is complete. Generally,
2013. These EISs were prepared for the Presidential Permit
a State Department decision on a Presidential Permit
application submitted by TransCanada in 2012. The 2013
application is issued in a single document that combines a
Draft EIS builds on a 2011 Final EIS for the Keystone XL
ROD and the National Interest Determination.
Pipeline Project that was first proposed by TransCanada in
a 2008 Presidential Permit application. That 2008
When will the State Department make a final decision?
application was subsequently denied in 2012. Milestones in
The State Department has not committed to a time frame to
the permitting process for both the 2008 and 2012 proposals
issue a final Record of Decision and National Interest
are illustrated in Figure 1. (Also see CRS Report R41668,
Determination. When asked about the potential timeline in
Keystone XL Pipeline Project: Key Issues.)
which Secretary Kerry may make a final decision, a State
Department representative stated that the only timeline
The release of the Final EIS represents one step in the State
given in E.O. 13337 pertains to a 90-day limit within which
Department’s process of deciding whether to issue a
outside agencies must provide comments on the proposal to
Presidential Permit for the Keystone XL Pipeline Project.
the State Department (discussed below). The E.O. specifies
The Final EIS is a technical assessment of the proposal’s
no timeline for reaching its determination.
impacts. It will be used to inform the national interest
determination, but does not make a recommendation to
What project impacts were evaluated in the EIS?
approve or deny the permit.
Among other details, an EIS must assess the potential
environmental impact of a proposed action. Since an EIS
FAQs Regarding the Final EIS
cannot simply document a decision that has already been
made, NEPA also requires federal agencies to identify
Various stakeholders have expressed interest in the analysis
reasonable alternatives to the proposed action, including a
included in the Final EIS and how its findings will affect
“no action” alternative. The Draft EIS, issued in March
the State Department’s decision on TransCanada’s
2013, analyzed impacts associated with the proposed
Presidential Permit application. Following are some of the
Keystone XL Pipeline Project and its alternatives with
questions that have been raised.
respect to their potential
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The State Department Releases Its Final EIS for the Keystone XL Pipeline. What’s Next?
 climate change impacts, including a life-cycle
significant discretion in deciding the factors it will examine
assessment of greenhouse gas (GHG) emissions
when making a national interest determination. With the
associated with the development, refining, and
release of the Final EIS, the department stated that it will
consumption of oil that would be transported;
consider many factors, including the proposal’s potential

effect on energy security; environmental and cultural
impacts to groundwater or surface water from oil spills
resources; the economy; and foreign policy.
or releases;
 socioeconomic impacts, including job and revenue
E.O. 13337 does, however, explicitly require the State
benefits, impacts to private property owners, and
Department to request input from certain federal agencies.
environmental justice issues; and
The E.O. requires that once all information needed to

process a permit has been received, the department must
effects on cultural, natural, or biological resources (e.g.,
request input from the Departments of Defense, Justice, the
wetlands, wildlife, threatened or endangered species and
Interior, Commerce, Transportation, Energy, and Homeland
their habitat) from pipeline construction and operation.
Security, and the Environmental Protection Agency. With
the release of the Final EIS, the State Department noted that
Changes in the Final EIS identified by the State Department
it will seek input from at least those eight agencies.
as “notable” include expanded analysis of impacts
 from potential oil spills or releases;
The E.O. specifies that the State Department may consult

with state, tribal, and local government officials and foreign
related to climate change; and
governments, as the department deems appropriate. Any
 associated with expanded rail transport (e.g., safety
agency consulted by the State Department is required to
issues and GHG emissions), if no action is taken.
provide its views on the project within 90 days.
The Final EIS also includes an updated oil Market Analysis
The E.O. does not explicitly require the State Department to
that incorporates new economic modeling.
seek public comments on a proposal. However, given the
level of interest expressed by various stakeholders in
Will the State Department deny the Presidential Permit
support of and opposition to the proposed Keystone XL
based on the proposal’s adverse environmental impacts?
Pipeline Project, the State Department announced a 30-day
Possibly, but not necessarily. The Final EIS identifies
public comment period that will end on March 7, 2014.
mitigation measures that would have to be implemented to
eliminate or minimize certain adverse environmental effects
Once all public and agency input is received, the State
of the proposed project (e.g., safety measures that must be
Department must consider that input, and any relevant
implemented to avoid an accidental release). All adverse
analysis (e.g., data provided in the Final EIS), to determine
impacts cannot be avoided or mitigated. As long as they are
whether the project would serve the national interest.
adequately evaluated, however, the State Department is not
constrained by NEPA from deciding that other benefits
If a Presidential Permit is issued, could construction of
outweigh the environmental costs of the action.
the Keystone XL Pipeline begin? Not immediately. Once
a final project alternative is selected, any applicable local,
Under E.O. 13337, a Presidential Permit may be issued if
state, tribal, or federal regulatory requirements (identified in
the State Department finds that the project would serve the
the Final EIS) would have to be met. Also, given the
national interest. The State Department could determine
opposition from various environmental groups and
that a project does not serve the national interest if the
stakeholders along the pipeline route, legal challenges to a
project’s benefits would not outweigh certain adverse
final State Department decision are a possibility. (For more
environmental impacts. For example, with regard to the
information, see CRS Report R41668, Keystone XL
Keystone XL Pipeline Project, President Obama stated that
Pipeline Project: Key Issues.)
the national interest will be served “only if this project does
not significantly exacerbate the problem of carbon
For additional information about environmental issues
pollution. The net effects of the pipeline’s impact on our
related to the Keystone XL Pipeline Proposal, see CRS
climate will be absolutely critical to determining whether
Report R43180, Keystone XL: Assessing the
this project is allowed to go forward.”1
Proposed Pipeline’s Impacts on Greenhouse Gas
Emissions, by Richard K. Lattanzio; and CRS Report
What factors will the State Department consider when it
R42611, Oil Sands and the Keystone XL Pipeline:
determines whether the Keystone XL Pipeline Project
Background and Selected Environmental Issues,
will serve the national interest? E.O. 13337 does not
coordinated by Jonathan L. Ramseur.
define terms relevant to the “national interest” or direct the
State Department to evaluate specific issues. In the past, the
Linda Luther, lluther@crs.loc.gov, 7-6852
department has asserted that, consistent with the President’s
IF00009
broad discretion in the conduct of foreign affairs, it has

1 White House, Office of the Press Secretary “Remarks by the
President on Climate Change,” Georgetown University,
Washington, DC, June 2013, http://www.whitehouse.gov/the-
press-office/2013/06/25/remarks-president-climate-change. 
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