Nadler Opposes Keystone XL Pipeline Project, Supports Cohen Amendment to Ensure Full Judicial Review

May 16, 2013 Issues: Transportation, Energy and Environment

WASHINGTON, D.C. – Today, Congressman Jerrold Nadler (D-NY), the most senior member from the Northeast on the House Transportation and Infrastructure Committee, voiced his continued opposition to the Keystone XL Pipeline project and his support for the Cohen Amendment to require normal judicial review of environmental risks and private property rights within the project.  Citing severe environmental threats, a global warming ‘game changer,’ and private property rights under assault, Nadler spoke at a Transportation and Infrastructure Committee markup of H.R. 3, the Northern Route Approval Act.

“The Keystone XL Pipeline would cut through the United States to allow Canada to deliver 830,000 barrels per day of tar sand oil to Gulf Coast refineries,” said Nadler.  “Tar sand oil extraction is destructive and dangerous.  Producing one barrel of tar sand oil releases at least three times more global warming pollutants than conventional oil.  If we allow this expansion to occur, it will be virtually impossible to reduce global warming.  This is why the Keystone Pipeline has rightfully been called a ‘game-changer.’  And there is no guarantee that any of the oil extracted will be delivered to U.S. consumers.  We cannot allow such a gigantic and irreversible step backward in the fight against global warming.”

Nadler continued: “But H.R. 3 goes well beyond the merits of the pipeline itself.  This bill sets a dangerous precedent, undercutting our environmental laws and short circuiting the review process.”  

Below is the full text of Nadler’s statement, as prepared:

“Mr. Chairman, I move to strike the last word.

“Mr. Chairman, I support the amendment offered by the Gentleman from Tennessee [Mr. Cohen].

“The Keystone XL Pipeline would cut through the United States to allow Canada to deliver 830,000 barrels per day of tar sand oil to Gulf Coast refineries.  Tar sand oil extraction is destructive and dangerous.  Producing one barrel of tar sand oil releases at least three times more global warming pollutants than conventional oil.  If we allow this expansion to occur, it will be virtually impossible to reduce global warming.  This is why the Keystone Pipeline has rightfully been called a ‘game-changer.’  And there is no guarantee that any of the oil extracted will be delivered to U.S. consumers.  We cannot allow such a gigantic and irreversible step backward in the fight against global warming.

“I don’t know if my colleagues have been paying attention, but NOAA just measured 399ppm of atmospheric carbon dioxide, well beyond the 350ppm many scientists warn is the level we must not cross to avoid severe climate impacts.  We should be focusing on developing renewable energy sources, not shortcutting our environmental laws to mandate approval of this dirty pipeline.

“But H.R. 3 goes well beyond the merits of the pipeline itself.  This bill sets a dangerous precedent, undercutting our environmental laws and short circuiting the review process.  It deems the pipeline approved by Congressional mandate.  It locks in the administrative record as of a date certain, eliminates the requirement for a Presidential Permit normally required for cross-border pipelines, and it mandates the issuance of permits not just for construction of the pipeline, but for operation and maintenance as well.  Or in other words, in perpetuity.

“Mr. Chairman, not satisfied with short circuiting existing law, the authors of this bill also manage to undermine a citizen’s fair access to judicial review. 

“First, the idea that there is any meaningful court review under this bill is laughable.  Section 4 appears to grant the right of judicial review by giving the D.C. Circuit jurisdiction to hear any challenge to ‘the adequacy of any environmental impact statement prepared under the National Environmental Policy Act of 1969, or of any analysis under any other Act, with respect to any action taken, made, granted, or issued, or deemed to be taken, made, granted, or issued under this Act.’

“But, this appears pretty meaningless, because Section 3 states that the ‘environmental impact statement issued by the Secretary of State on August 26, 2011, coupled with the Final Evaluation Report described in the previous sentence, shall be considered to satisfy all requirements of the National Environmental Policy Act of 1973 ...’  So, the court is told what to find.

“Similarly, the bill simply states as a matter of law that Section 404 of the Clean Water Act, Section 10 of the Rivers and Harbors Act, the Mineral Leasing Act, the Federal Land Policy and Management Act of 1976, the Migratory Bird Treaty Act, and the Endangered Species Act are all satisfied. 

“I especially like the sponsors’ attempt to legislate science.  Section 5 states that ‘for purposes of [the Endangered Species Act], the Keystone XL pipeline project will not jeopardize the continued existence of the American burying beetle or destroy or adversely modify American burying beetle critical habitat.’

“The bill magnanimously preserves constitutional claims – claims that we cannot wipe away, so I suppose it’s not much of a concession.  So, the fix is in before you ever get to court.  I’d be interested to know what, if anything, the sponsors think would be left for a court to review. 

“The Gentleman’s amendment is necessary to preserve any semblance of judicial review.

“Also troubling is that all claims would have to go straight to the U.S. Court of Appeals in the District of Columbia.  No lower court review to establish a record, it forces citizens to travel thousands of miles from home to vindicate their rights, and it gives them a whopping 60 days to bring their cases.

“How much contempt do the authors of this legislation have for the people most directly affected by this pipeline? 

“I would also remind my friends who support this legislation that property owners all along the right of way are having their property taken by eminent domain – an extraordinary governmental power that is being given to a foreign energy company.

“It is surprising that many of the members who have objected most loudly to the Supreme Court’s decision in Kelo v. City of New London, which allows the use of eminent domain for economic development purposes, should so quickly forget about private property rights when it comes to oil industry profits.

“Just recently, the Constitution Subcommittee held a hearing on this very subject, and we heard from Julia Trigg Crawford, the third generation in her family to run their 600 acre farm in Direct, Texas.  TransCanada is taking their property, and threatening the future of the farm and its water supply, in order to secure a right of way for the pipeline.

“The Private Property Rights Protection Act, which many members of this Committee have supported, and which is supposed to protect Americans against eminent domain abuse, has a specific and very convenient exemption for these pipeline projects.

“It seems that private property rights are only sacrosanct when they don’t interfere with the profits of foreign oil companies.  I ask that Ms. Crawford’s testimony before the Constitution Subcommittee be included in the record.

“And now, the sponsors of this bill don’t even want Americans to have their day in court – or at least restrict it so greatly that it is virtually meaningless.

“So I hope that we won’t rig the system, but if members are determined to do so, at least let people go to the court near their homes, and let them have their fair day in court.  I urge the adoption of the Gentleman’s amendment.”

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