Guess What? Obama’s Keystone Pipeline Decision Can Be Reversed

This conclusion opened the door for Obama to approve the pipeline based on the criterion he’d publicly stated.

Then came the drop in oil prices. Now it’s conceivable that some of the oil-sands crude won’t be exploited if it must be exported by a more expensive means than Keystone. The environmental impact report’s conclusion, in other words, may not be accurate — at least until prices rise again, past $65 a barrel according to an Environmental Protection Agency report. Even though Kerry said, “The reality is that this decision could not be made solely on the numbers,” this change provides some analytic support to Kerry’s reasoning and Obama’s decision.

Now imagine that a Republican is elected president. What procedural hurdles would have to be jumped to reverse the decision?

A strong case could be made that no new environmental impact study by the State Department is required. The president and secretary of state could simply rely on the previous one.

Such environmental reports are supposed to be free of partisan politics. No one entirely believes it, and complex forms of bias can enter into even the most objective kinds of cost-benefit analysis. Yet, in this case, a Republican president would be on strong grounds in relying on a report produced by a Democratic administration.

Once the environmental impact statement was accepted by the new president, he or she could simply declare that Obama was wrong about the effect the pipeline would have on U.S. leadership with respect to emissions. The Republican wouldn’t even have to deny the importance or reality of climate change. The president could just say that his or her political values and judgment are different from Obama’s.

The constitutional theory of executive power is supposed to allow the president to make value judgments and political decisions different from a predecessor’s. In contrast, the administrative process is supposed to involve logical reasoning based on facts and figures.

That’s why Obama has the power to ignore the positive recommendation of the environmental impact statement, although it would’ve been extremely difficult to ignore a negative environmental impact statement.

No doubt environmental groups would still challenge a Republican presidential reversal in court. Their best argument would be that the 2014 environmental impact statement was based on the faulty assumption that the price of oil would be above $65 a barrel, so that refusing to build the pipeline wouldn’t affect total oil-sands-crude production.

To that a Republican president could answer that oil prices might go up and, in historical terms, almost certainly will. A full environmental review from scratch shouldn’t be needed to make that point.

The upshot is that, most probably, Obama’s decision can be reversed with a relatively low legal risk. The Keystone pipeline story might not be over yet.