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                                                       Calendar No. 446
113th Congress                                                   Report
                                 SENATE
 2d Session                                                     113-200

====================================================================== 



 
                          KEYSTONE XL PIPELINE

                                _______
                                

                 June 26, 2014.--Ordered to be printed

                                _______
                                

   Ms. Landrieu, from the Committee on Energy and Natural Resources, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 2554]

    The Committee on Energy and Natural Resources, having 
considered the same, reports favorably an original bill (S. 
2554) to approve the Keystone XL Pipeline, and recommends that 
the bill do pass.
    The text of the bill is as follows:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Keystone XL Pipeline Approval 
Act''.

SEC. 2. KEYSTONE XL APPROVAL.

  (a) In General.--TransCanada Keystone Pipeline, L.P. may 
construct, connect, operate, and maintain the pipeline and 
cross-border facilities described in the application filed on 
May 4, 2012, by TransCanada Corporation to the Department of 
State (including any subsequent revision to the pipeline route 
within the State of Nebraska required or authorized by the 
State of Nebraska).
  (b) Environmental Impact Statement.--The Final Supplemental 
Environmental Impact Statement issued by the Secretary of State 
in January 2014, regarding the pipeline referred to in 
subsection (a), and the environmental analysis, consultation, 
and review described in that document (including appendices) 
shall be considered to fully satisfy--
          (1) all requirements of the National Environmental 
        Policy Act of 1969 (42 U.S.C. 4321 et seq.); and
          (2) any other provision of law that requires Federal 
        agency consultation or review (including the 
        consultation or review required under section 7(a) of 
        the Endangered Species Act of 1973 (16 U.S.C. 1536(a))) 
        with respect to the pipeline and facilities referred to 
        in subsection (a).
  (c) Permits.--Any Federal permit or authorization issued 
before the date of enactment of this Act for the pipeline and 
cross-border facilities referred to in subsection (a) shall 
remain in effect.
  (d) Judicial Review.--Except for review in the Supreme Court 
of the United States, the United States Court of Appeals for 
the District of Columbia Circuit shall have original and 
exclusive jurisdiction over any civil action for the review of 
an order or action of a Federal agency regarding the pipeline 
and cross-border facilities described in subsection (a), and 
the related facilities in the United States, that are approved 
by this Act (including any order granting a permit or right-of-
way, or any other agency action taken to construct or complete 
the project pursuant to Federal law).
  (e) Private Property Savings Clause.--Nothing in this Act 
alters any Federal, State, or local process or condition in 
effect on the date of enactment of this Act that is necessary 
to secure access from an owner of private property to construct 
the pipeline and cross-border facilities described in 
subsection (a).

                                Purpose

    The purpose of the measure is to approve the Keystone XL 
Pipeline.

                          Background and Need

    Although the Federal Government does not generally regulate 
the siting of oil pipelines, the President has, for more than a 
century, asserted authority to approve energy and 
telecommunication facilities that cross international borders 
pursuant to his constitutional authority over foreign affairs. 
See Sierra Club v. Clinton, 689 F. Supp. 2d 1147, 1163 (D. 
Minn. 2010). In 1968, President Johnson delegated his authority 
to issue or deny applications for Presidential permits for 
cross-border oil pipelines to the Secretary of State, based 
upon the Secretary's determination of whether issuance of the 
permit would serve the national interest. Executive Order 
11423, 33 Fed. Reg. 11741 (Aug. 16, 1968). President George W. 
Bush affirmed President Johnson's delegation to the Secretary 
of State in 2004. Executive Order 13337, 69 Fed. Reg. 25299 
(May 5, 2004).
    TransCanada Keystone Pipeline, LP, (``TransCanada''), a 
Canadian company, proposes to build and operate an oil 
pipeline, known as the ``Keystone XL pipeline,'' to transport 
heavy crude oil across the border with Canada to the Gulf Coast 
area. In addition, the project will also provide transportation 
of light crude oil from the Bakken formation in North Dakota 
and Montana. TransCanada already operates another cross-border 
pipeline, known simply as the ``Keystone pipeline,'' which runs 
from Hardisty, Alberta, crosses the border in North Dakota, and 
ends in Patoka, Illinois. It received a Presidential permit in 
March 2008 and began operating in June 2010. In the case of the 
original Keystone pipeline, the Department of State determined 
that the pipeline was in the national interest because it 
increased market access to crude oil supplies from ``a stable 
and reliable trading partner, Canada, that is in close 
proximity to the United States.''
    In September 2008, TransCanada applied for a Presidential 
permit for the Keystone XL pipeline. This second pipeline will 
have the capacity to transport 830,000 barrels of oil per day, 
including 730,000 barrels per day from Canada, and 100,000 
barrels per day from the Bakken formation of North Dakota and 
Montana. It will provide both Canadian and American oil 
producers greater access to the large refining markets in the 
American Midwest and Gulf Coast. Like the earlier Keystone 
pipeline, the Keystone XL pipeline will strengthen North 
American energy ties and provide a safe, secure supply of oil 
from a reliable stable and reliable trading partner.
    The Department of State published a final environmental 
impact statement on the proposed project in August 2011. In 
November 2011, however, the Department determined that 
additional information was needed to act on the application.
    In December 2011, Congress passed and the President signed 
into law the Temporary Payroll Tax Cut Continuation Act. 
Section 501 of that Act required the President, acting through 
the Secretary of State, to grant the Presidential permit for 
the Keystone XL pipeline ``not later than 60 days'' after 
December 23, 2011. Public Law 112-78, 501(a), 125 Stat. 1289. 
On January 18, 2012, the Secretary of State recommended that 
the President deny the permit, ``based on the fact that the 
Department does not have sufficient time to obtain the 
information necessary to assess whether the project, in its 
current state, is in the national interest.'' The President 
accepted the Secretary of State's recommendation, stating that 
it was ``not a judgment on the merits of the pipeline, but the 
arbitrary nature of a deadline that prevented the State 
Department from gathering the information necessary to approve 
the project . . . .''
    In February 2012, TransCanada announced that it would 
proceed with the construction of the pipeline from Cushing, 
Oklahoma, to the Gulf Coast, for which a Presidential permit 
was not required (since it did not cross the border with 
Canada). Construction of that portion of the pipeline is now 
complete. It began operating in January 2014.
    In May 2012, TransCanada filed a new application for a 
Presidential permit for the project. The new application 
proposed a modified route, which avoids the environmentally 
sensitive Sand Hills region in Nebraska and terminates near 
Steele City, Nebraska. From Steele City, oil would be 
transported through the so-called ``Cushing Extension,'' from 
Steele City, Nebraska, to Cushing, Oklahoma, which began 
operating in February 2011, and the ``Gulf Coast Project,'' 
from Cushing, Oklahoma, to Nederland, Texas, which began 
operating in January 2014.
    On January 31, 2014, the Department of State released a 
final supplemental environmental impact statement on the 
modified Keystone XL project. Pursuant to Executive Order 
13337, the Department is required to solicit the views of the 
Departments of Energy, Defense, Transportation, Homeland 
Security, Justice, theInterior, and Commerce, and the 
Environmental Protection Agency. On April 18, 2014, the Department of 
State notified the eight agencies that it would provide more time for 
them to submit their views on the project. It cited both ``the 
uncertainty created by the on-going litigation in the Nebraska Supreme 
Court which could ultimately affect the pipeline route in that state,'' 
and the ``unprecedented number of new public comments, approximately 
2.5 million, received during the public comment period that closed on 
March 7, 2014,'' for giving the agencies more time. The State 
Department stated that it was ``actively continuing'' its work on the 
permit application, but offered no target date for bringing its review 
to a close and making a final decision on TransCanada's permit 
application.
    Legislation is needed to bring to a close the review of the 
permit application, which is now in its fifth year, by 
authorizing the construction, connection, operation, and 
maintenance of the Keystone XL pipeline and cross-border 
facilities.

                          Legislative History

    Similar legislation (S. 582 and S. 2280) was introduced by 
Senator Hoeven on March 18, 2013 (S. 582) and on May 5, 2014 
(S. 2280). S. 582 is cosponsored by 27 Senators, and S. 2280 is 
cosponsored by 55 Senators. Both bills were placed directly on 
the Calendar pursuant to rule XIV.
    In addition, similar measures have been incorporated as 
part of more comprehensive bills that have been referred to the 
Committee on Energy and Natural Resources. See S. 17, Sec. 309 
(Mr. Vitter); S. 2170, Sec. 2012 (Mr. Cruz). See also S. Con. 
Res. 21 (Ms. Landrieu) (expressing the sense of the Senate that 
``completion of the Keystone XL pipeline is in the national 
interest of the United States'').
    Similar legislation (H.R. 3) was also passed by the House 
of Representatives on May 22, 2013, by a vote of 241-175, and 
was placed on the Senate Legislative Calendar under rule XIV.
    The Committee ordered the measure favorably reported as an 
original bill on June 18, 2014.

            Committee Recommendation and Tabulation of Votes

    The Committee on Energy and Natural Resources, in open 
business session on June 18, 2014, by a majority voice vote of 
a quorum present, recommends that the Senate pass an original 
bill, as described herein.
    The roll call vote on reporting the measure was 12 yeas, 10 
nays, as follows:
        YEAS                          NAYS
Ms. Landrieu                        Mr. Wyden*
Mr. Manchin                         Mr. Johnson*
Ms. Murkowski                       Ms. Cantwell
Mr. Barrasso                        Mr. Sanders
Mr. Risch                           Ms. Stabenow
Mr. Lee*                            Mr. Udall
Mr. Heller*                         Mr. Franken
Mr. Flake                           Mr. Schatz*
Mr. Scott                           Mr. Heinrich
Mr. Alexander*                      Ms. Baldwin*
Mr. Portman
Mr. Hoeven

    *Indicates vote by proxy.

                      Section-by-Section Analysis

    Section 1 provides a short title for the measure.
    Section 2(a) authorizes TransCanada to construct, connect, 
operate and maintain the Keystone XL pipeline and cross-border 
facilities described in the application TransCanada filed on 
May 4, 2012, including any subsequent revision to the pipeline 
rout within the State of Nebraska required or authorized by the 
State of Nebraska.
    Subsection (b) provides that the Final Supplemental 
Environmental Impact Statement on the Keystone XL Project 
issued by the Secretary of State in January 2014 shall be 
considered to satisfy the National Environmental Policy Act and 
any other provision of law that requires Federal agency 
consultation or review, including section 7(a) of the 
Endangered Species Act of 1973, with respect to the Keystone XL 
pipeline and cross-border facilities.
    Subsection (c) provides that any Federal permit or 
authorization for the Keystone XL pipeline and cross-border 
facilities issued before the date of enactment of the measure 
shall remain in effect.
    Subsection (d) gives the United States Court of Appeals for 
the District of Columbia Circuit original and exclusive 
jurisdiction, except for review in the Supreme Court of the 
United States, for the review of any order or action of a 
Federal agency regarding the Keystone XL pipeline and cross-
border facilities and related facilities in the United States 
that are approved by the measure (including any order granting 
a permit or right-of-way, or any other agency action taken to 
construct or complete the project pursuant to Federal law).
    Subsection (e) states that nothing in the measure alters 
any Federal, State, or local process or condition in effect on 
the date of enactment that is necessary to secure access from 
an owner of private property to construct the Keystone XL 
pipeline and cross-border facilities.

                   Cost and Budgetary Considerations

    The Congressional Budget Office estimate of the costs of 
this measure has been requested but was not received at the 
time the report was filed. When the Congressional Budget Office 
completes its cost estimate, it will be posted on the Internet 
at www.cbo.gov.

                      Regulatory Impact Evaluation

    In compliance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee makes the following 
evaluation of the regulatory impact which would be incurred in 
carrying out the bill.
    The bill is not a regulatory measure in the sense of 
imposing Government-established standards or significant 
economic responsibilities on private individuals and 
businesses.
    No personal information would be collected in administering 
the program. Therefore, there would be no impact on personal 
privacy.
    Little, if any, additional paperwork would result from the 
enactment of S. 363, as ordered reported.

                   Congressionally Directed Spending

    The bill, as reported, does not contain any congressionally 
directed spending items, limited tax benefits, or limited 
tariff benefits as defined in rule XLIV of the Standing Rules 
of the Senate.

                        Executive Communications

    The Committee did not request the views of the 
Administration on the measure.

                        Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee notes that no 
changes in existing law are made by the bill as ordered 
reported.