February 6, 2014
The State Department Releases Its Final EIS for the
Keystone XL Pipeline. What’s Next?
On January 31, 2014, the U.S. Department of State released
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.
In accordance with E.O. 13337, a decision to issue a permit
is predicated on the department’s determination that the
proposal would “serve the national interest.” With the
issuance of the Final EIS, the State Department said it will
now focus on making that determination.
The Final EIS builds on a Draft EIS released in March
2013. These EISs were prepared for the Presidential Permit
application submitted by TransCanada in 2012. The 2013
Draft EIS builds on a 2011 Final EIS for the Keystone XL
Pipeline Project that was first proposed by TransCanada in
a 2008 Presidential Permit application. That 2008
application was subsequently denied in 2012. Milestones in
the permitting process for both the 2008 and 2012 proposals
are illustrated in Figure 1. (Also see CRS Report R41668,
Keystone XL Pipeline Project: Key Issues.)
The release of the Final EIS represents one step in the State
Department’s process of deciding whether to issue a
Presidential Permit for the Keystone XL Pipeline Project.
The Final EIS is a technical assessment of the proposal’s
impacts. It will be used to inform the national interest
determination, but does not make a recommendation to
approve or deny the permit.
FAQs Regarding the Final EIS
Various stakeholders have expressed interest in the analysis
included in the Final EIS and how its findings will affect
the State Department’s decision on TransCanada’s
Presidential Permit application. Following are some of the
questions that have been raised.
Figure 1. State Department Actions Evaluating the
Proposed Keystone XL Pipeline Project TPP
Source: Congressional Research Service.
Does the Final EIS reflect a final decision on the
proposed pipeline? No. Analysis in an EIS is intended to
inform the federal decision-making process, not document a
final decision. The NEPA process concludes when a federal
agency issues a final Record of Decision (ROD). A ROD
cannot be issued until the Final EIS is complete. Generally,
a State Department decision on a Presidential Permit
application is issued in a single document that combines a
ROD and the National Interest Determination.
When will the State Department make a final decision?
The State Department has not committed to a time frame to
issue a final Record of Decision and National Interest
Determination. When asked about the potential timeline in
which Secretary Kerry may make a final decision, a State
Department representative stated that the only timeline
given in E.O. 13337 pertains to a 90-day limit within which
outside agencies must provide comments on the proposal to
the State Department (discussed below). The E.O. specifies
no timeline for reaching its determination.
What project impacts were evaluated in the EIS?
Among other details, an EIS must assess the potential
environmental impact of a proposed action. Since an EIS
cannot simply document a decision that has already been
made, NEPA also requires federal agencies to identify
reasonable alternatives to the proposed action, including a
“no action” alternative. The Draft EIS, issued in March
2013, analyzed impacts associated with the proposed
Keystone XL Pipeline Project and its alternatives with
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
assessment of greenhouse gas (GHG) emissions
associated with the development, refining, and
consumption of oil that would be transported;
impacts to groundwater or surface water from oil spills
socioeconomic impacts, including job and revenue
benefits, impacts to private property owners, and
environmental justice issues; and
effects on cultural, natural, or biological resources (e.g.,
wetlands, wildlife, threatened or endangered species and
their habitat) from pipeline construction and operation.
Changes in the Final EIS identified by the State Department
as “notable” include expanded analysis of impacts
from potential oil spills or releases;
related to climate change; and
associated with expanded rail transport (e.g., safety
issues and GHG emissions), if no action is taken.
The Final EIS also includes an updated oil Market Analysis
that incorporates new economic modeling.
Will the State Department deny the Presidential Permit
based on the proposal’s adverse environmental impacts?
Possibly, but not necessarily. The Final EIS identifies
mitigation measures that would have to be implemented to
eliminate or minimize certain adverse environmental effects
of the proposed project (e.g., safety measures that must be
implemented to avoid an accidental release). All adverse
impacts cannot be avoided or mitigated. As long as they are
adequately evaluated, however, the State Department is not
constrained by NEPA from deciding that other benefits
outweigh the environmental costs of the action.
Under E.O. 13337, a Presidential Permit may be issued if
the State Department finds that the project would serve the
national interest. The State Department could determine
that a project does not serve the national interest if the
project’s benefits would not outweigh certain adverse
environmental impacts. For example, with regard to the
Keystone XL Pipeline Project, President Obama stated that
the national interest will be served “only if this project does
not significantly exacerbate the problem of carbon
pollution. The net effects of the pipeline’s impact on our
climate will be absolutely critical to determining whether
this project is allowed to go forward.”1
What factors will the State Department consider when it
determines whether the Keystone XL Pipeline Project
will serve the national interest? E.O. 13337 does not
define terms relevant to the “national interest” or direct the
State Department to evaluate specific issues. In the past, the
department has asserted that, consistent with the President’s
broad discretion in the conduct of foreign affairs, it has
significant discretion in deciding the factors it will examine
when making a national interest determination. With the
release of the Final EIS, the department stated that it will
consider many factors, including the proposal’s potential
effect on energy security; environmental and cultural
resources; the economy; and foreign policy.
E.O. 13337 does, however, explicitly require the State
Department to request input from certain federal agencies.
The E.O. requires that once all information needed to
process a permit has been received, the department must
request input from the Departments of Defense, Justice, the
Interior, Commerce, Transportation, Energy, and Homeland
Security, and the Environmental Protection Agency. With
the release of the Final EIS, the State Department noted that
it will seek input from at least those eight agencies.
The E.O. specifies that the State Department may consult
with state, tribal, and local government officials and foreign
governments, as the department deems appropriate. Any
agency consulted by the State Department is required to
provide its views on the project within 90 days.
The E.O. does not explicitly require the State Department to
seek public comments on a proposal. However, given the
level of interest expressed by various stakeholders in
support of and opposition to the proposed Keystone XL
Pipeline Project, the State Department announced a 30-day
public comment period that will end on March 7, 2014.
Once all public and agency input is received, the State
Department must consider that input, and any relevant
analysis (e.g., data provided in the Final EIS), to determine
whether the project would serve the national interest.
If a Presidential Permit is issued, could construction of
the Keystone XL Pipeline begin? Not immediately. Once
a final project alternative is selected, any applicable local,
state, tribal, or federal regulatory requirements (identified in
the Final EIS) would have to be met. Also, given the
opposition from various environmental groups and
stakeholders along the pipeline route, legal challenges to a
final State Department decision are a possibility. (For more
information, see CRS Report R41668, Keystone XL
Pipeline Project: Key Issues.)
For additional information about environmental issues
related to the Keystone XL Pipeline Proposal, see CRS
Report R43180, Keystone XL: Assessing the
Proposed Pipeline’s Impacts on Greenhouse Gas
Emissions, by Richard K. Lattanzio; and CRS Report
R42611, Oil Sands and the Keystone XL Pipeline:
Background and Selected Environmental Issues,
coordinated by Jonathan L. Ramseur.
Linda Luther, email@example.com, 7-6852
White House, Office of the Press Secretary “Remarks by the
President on Climate Change,” Georgetown University,
Washington, DC, June 2013, http://www.whitehouse.gov/thepress-office/2013/06/25/remarks-president-climate-change.
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