The U.S. Department of State (DOS) has postponed its decision on TransCanada’s application for a Presidential Permit to build the Keystone XL pipeline until some undefined time in the future.  The DOS indicated last year that the decision would be made within the first quarter of 2014.  Now, the DOS says that it must give other U.S. agencies the opportunity to comment on potential changes to the pipeline’s proposed route, which may result from ongoing legal developments in Nebraska. 

State court decision

The Nebraska case involves several landowners who asked a Nebraska district court to overturn a state law (LBll61) that allowed Governor Dave Heineman to approve the route of the pipeline without the consent of the Nebraska Public Service Commission.  District Judge Stephanie Stacy ruled that the governor’s action violated the state constitution.  Heineman’s office is appealing Stacy’s decision to the state Supreme Court, which may not hear the case until September 2014.  TransCanada and U.S. supporters of the pipeline believe any delay is unnecessary.

“A notice of appeal was filed by Nebraska's Attorney General in February on the same day as the district court judge's decision regarding LB1161,” said TransCanada in a statement.  “This action 'stays' the lower court decision, meaning LB1161 is still valid and the Keystone XL re-route in Nebraska that was evaluated by the Nebraska Department of Environmental Quality and approved by the Governor remains in effect."

“After more than 2,000 days, five exhaustive environmental reviews and over 17,000 pages of scientific data Keystone XL continues to languish,” added TransCanada.

Agency reviews

An Executive Order (EO) from President Obama initially gave eight federal agencies 90 days to provide input on the impact of the pipeline and its route.  But, in announcing the delay, a DOS official said the EO also allows for extensions of the time frame “based on need.” 

“This is one of the cases where, in our discussions with agencies and the circumstances that have arisen, that need has become clear,” said the official.  “And it’s on that basis that we sent to those agencies a notice saying that we will indeed respond to the interests that they have for more time to be able to give us their assessments of the proposed project.”

The DOS official said the entire review process will not be rebooted based on the outcome of the Nebraska litigation.  “We are moving ahead very diligently with all other aspects of the review that are necessary for the national interest determination,” said the official.  However, the official did not dismiss the possibility that a new route may trigger the need for another detailed environmental review. 

In addition, the official said the DOS is still reviewing 2.5 million public comments on the proposed project and incorporating all “unique comments” into the consideration.  Usually, on some form of pipeline application there may be fewer than 100 comments, said the official.  The DOS has retained a contractor to categorize the public comments to expedite the review; but the official refused to say how many DOS staff are actually working on the TransCanada application and review. 

Democrats urge decision

U.S. lawmakers, including Democrats in states that would benefit from petroleum imports the pipeline would carry, are concerned that the administration will not decide on Keystone XL until after the November 2014 elections.  In an April 10, 2014, letter to President Obama, 11 Senate Democrats asked that the final decision on the permit application be made by May 31, 2014.  Responding to the letter, White House Press Secretary Jay Carney said the president’s position on the application review hasn’t changed and that the process “needs to run its appropriate course without interference from the White House or Congress.”