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Keystone XL pipeline: Could Congress bypass Obama to get it built?

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Danny Johnston/AP/File

(Read caption) Coated steel pipe is stored in Little Rock, Ark. Congress has previously tried to approve the Keystone XL pipeline by shifting permitting authority to the Federal Energy Regulatory Commission or Congress.

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The Keystone XL pipeline has idled in limbo since 2008 when TransCanada, a Canadian energy company, first sought presidential approval for the cross-border oil pipeline.

Now, some in the US House of Representatives are again hoping to move forward with the project, sans approval from either the White House or US State Department. The project requires a presidential permit because the proposed pipeline would straddle the US-Canada border.

The latest proposed workaround is the Northern Route Approval Act, which would mitigate potential legal challenges and effectively allow TransCanada to begin construction on the project without a presidential permit. The bill is a sign of continued frustration from Republicans who say the Obama Administration has dragged its feet on a job-creating, economy-stimulating infrastructure project.

While technically possible, such a bill faces significant obstacles. 

"In general Congress can override otherwise applicable permitting requirements," Jim McElfish, an attorney with the Environmental Law Institute in Washington, wrote in an email, "if it enacts legislation and the legislation is signed by the president." 

There's the rub. Legislation circumventing the need for presidential approval would, in the end, need the president's approval.

The instance may present further complexity, Mr. McElfish adds, because it involves diplomatic relations, an area where the executive tends to assert more inherent authority.

“We are wasting taxpayer dollars on a bill that is dead on arrival, will never make it in the Senate, and will never be signed by the president,” said Rep. Bobby Rush (D) of Illinois during a Energy and Commerce subcommittee hearing, one of two simultaneous House hearings on the bill Tuesday.

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It's not the first time Congress has tried to speed up permitting of the project. Previous attempts to shift the permitting authority to the Federal Energy Regulatory Commission or Congress have failed.

In December 2011, Congress gave President Obama a 60-day deadline to decide the fate of the project. The next month the president rejected TransCanada's application on environmental concerns.

TransCanada altered their proposal and reapplied in May 2012. The new application's environmental review is undergoing a public comment period with a decision from the White House expected sometime in the coming months.

“I have no doubt in my mind that the president wants to delay this to the point where people forget about it," said Rep. Lee Terry (R) of Nebraska, the sponsor of the Northern Route Approval Act, during Tuesday's Energy and Power Subcommittee hearing. "But I tell you what, our energy security is too important, our jobs are too important to delay this any longer."

Critics counter that such a bill would serve as a rubber stamp for a project with disastrous environmental consequences and scant economic benefit. The Keystone XL pipeline, they say, would merely give TransCanada a route to access global oil markets and do little to enhance US energy security. 

The full House Energy and Commerce Committee is scheduled to vote on the bill Wednesday.


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