The saga of the Keystone XL pipeline seemed to come to an end earlier this month when U.S. President Barack Obama officially rejected TransCanada’s request by saying the oil pipeline from Canada to the Gulf Coast would “undercut” American leadership on climate change.
But the pipeline isn’t completely dead. Because of falling oil prices, it’s mostly a partisan issue. If Democrat Hillary Clinton is elected president in 2016, she won’t reverse Obama’s decision. But if a Republican is elected, he or she might well make the opposite call, and be supported by a Republican Congress.
So how much difference does Obama’s rejection make? How much harder would it be for a Republican to reverse the Obama decision than it would be to make a positive decision on a blank slate?
Politically, there might be some added cost to a Republican, because an official presidential kibosh stops the project’s momentum. Legally, however, the barrier to reversal probably isn’t very high.
The reason is that the administrative review process that led up to Obama’s decision initially came out in favor of the pipeline. The State Department’s environmental impact review concluded last year that the pipeline wouldn’t have a meaningful negative impact on carbon emissions.
Relying on this report, a Republican president could almost certainly reverse Obama’s decision by saying his or her political values and judgment dictated a different result. Secretary of State John Kerry, to whom the permit decision was delegated by executive order,concluded that the pipeline didn’t serve U.S. national interests. A future secretary of state could conclude the contrary.
If that happened, environmental groups would undoubtedly demand another environmental review process and argue that new circumstances demand it. But it seems likely that a court would reject that claim.
So if the State Department previously concluded that the pipeline wouldn’t have a negative environmental effect, how could the secretary of state and the president decide that the pipeline would be bad for climate change?
The answer reveals something significant about executive power and administrative decision-making.
Travel, if you will, back to the summer of 2013, when oil prices were high. Obama said then that he anticipated approving the pipeline if it wouldn’t “significantly exacerbate” emissions. This statement put a lot of weight on the State Department’s environmental analysis, which was then under way.
Issued in January 2014, the report acknowledged that the oil-sands crude that would be carried in the pipeline had higher greenhouse-gas emissions than the lighter, sweeter crude it might replace in the U.S. but it also said that “the proposed Project is not likely to impact the amount of crude oil produced from the oil sands,” because the Canadian oil would be exploited regardless of whether it went to market via the Keystone pipeline or by some other route.