Keystone XL Pipeline -- Motion To Proceed

Floor Speech

BREAK IN TRANSCRIPT

Ms. CANTWELL. I thank the Senator from North Dakota. I know we are going to be going back and forth on this issue and that we have other people coming. Later this morning we are going to have time divided. But I appreciate the Senator from North Dakota allowing us to join in the debate this morning and make a few points.

I do want to say I appreciate the hard work of the Senator from North Dakota on the energy committee in general. I look forward to working with him on many energy policies. He and I have worked together on a couple of different agricultural issues. I certainly appreciate his due diligence, but needless to say I do not agree with the process of moving forward with this motion to proceed to the Keystone XL Pipeline bill.

Many of my colleagues are going to be coming down and talking about the issues. Two of my colleagues, including the Senators from Utah and Arkansas, along with the Senator from North Dakota, brought up a couple of different points. But in my mind, they are talking about a 19th century energy policy and fossil fuel instead of us focusing on what should be a 21st century energy policy for our country.

It is unfortunate that S. 1 is a very narrow, specific, special interest measure for a pipeline that did not go through the proper channels of a permitting process and because of that is flawed. As people are heralding it as the new Congress.

This process continues today with people saying: Let's just give it more special interest attention and approve it. I believe America should be a leader in energy policy and that our job creation is dependent upon that energy policy for the future. We want to see America be a leader in this. I applaud the fact that the President reached a climate and clean energy agreement with China.

We are over 60 percent of the world's energy consumption. If the two countries can work together on a clean energy strategy, I guarantee that will be good business for the U.S. economy. In fact, I read a statistic that something like 50 percent of all energy is going to be consumed by the buildings in China--there is huge growth in building development, but they do not have good building standards so those buildings consume too much energy.

So there is a lot to do on energy efficiency that will grow U.S. jobs and help us. That is why we would rather see us focusing on some of the energy policies that we did in 2005 and 2007. Those things unleash huge opportunities for American jobs and huge opportunities for American consumers to get a better deal and not be subject to price spikes.

The 2007 bill had fuel efficiency standards in it and laid the foundation for the growth of the hybrid electric car industry and has added over 263,000 jobs in the last 5 years. That is the kind of smart policy we should be pursuing. We also have had energy bills that made investments in clean energy tax credits, something I was just talking about with my colleague from Utah, saying we needed to move forward on energy tax credits. If there is nothing else that we should be doing, we should be doing that as S. 1, because the predictability and certainty we would be giving to that industry would certainly unleash many jobs.

So the 2005 and 2007 energy bills that we did in a bipartisan fashion helped foster an energy-efficient economy and helped support 450,000 jobs according to a 2011 Brookings Institution report.

These are examples of the types of things we have done in the past that have unleashed investment, and have grown jobs in the United States of America. They are important milestones in the type of clarity Congress can give to the private sector to spur growth and development. I can guarantee this is the opposite of that. This is about a special interest deal and overriding a process, including the White House process and local government process, that is so essential.

Two examples of what we should be doing instead: As I said, the energy tax credits which have been delayed. As my colleagues from Oregon pointed out at the end of last year, we basically authorized them for about 2 more weeks in December. That was about all the certainty we gave the industry. A McKinsey report has estimated that providing the right incentives for retrofitting buildings and energy efficiency would help employ 900,000 people over the next decade; that the wind energy tax credit would employ 54,000 people, and there are other issues about modernizing our grid and new technology storage.

There is also very important work to be done in the manufacturing sector; that is, to help unleash innovation by making sure we set standards on improving efficiency and focusing on lightweight materials for both automobiles and aviation. We have seen huge job growth in the Pacific Northwest because we were able to transform aerospace into lighter weight materials. We are also working on a biojet fuel.

So all of these things mean we have to get the R&D right, we have to get the tax credits right, and we need to help protect consumers from spiking energy prices. This is the evolution. I do not think anybody in America thinks we are going to hold on to a 19th century fossil fuel economy forever. The question is, Whether Congress is going to spend its time moving forward on a 21st century plan that gives the predictability and certainty to unleash that leadership and capture the opportunities in developing markets around the globe or whether we are going to hold on to the last elements of fossil fuel forever and leave our constituents more at risk.

But I would like to take a few minutes and talk about this process my colleagues are trying to describe as to why we need to hurry. Because I can guarantee that is what people have been trying to do all along, hurry this along for a special interest. I do not believe that is good for the American people. I do not think it is good for this process.

If we think about where we have been, this process is about people who are trying to push a route through no matter what the circumstances. Every State, people are saying, has approved this process. I can guarantee there are a lot of people in Nebraska and a lot of people in South Dakota who do not agree with that. They are very concerned about the public interest.

Unfortunately, in the case of the Keystone XL project, landowners and ranchers in Nebraska affected by the pipeline did not feel they were afforded equal opportunity before the law. In their view the process was set up to benefit a special interest, the TransCanada Corporation. On three separate occasions, beginning in 2011, the Nebraska Legislature passed carve-outs to circumvent the role of the public service commission to approve the Keystone Pipeline.

If this was such a great deal, why can't it go through the normal process, as in every other State, with a transportation and utilities commission ruling on siting? Why do we have to take the public interest out of it? The first carve-out included the Major Oil Pipeline Siting Act of 2011. So this bill laid out the rule that the public service commission determined whether a new pipeline project was in the public interest. In making this decision, the legislature required that the commission consider eight criteria.

Among them: the environmental impact of water and wildlife and vegetation, the economic and social impact, the alternative route, the impact to future development in the pipeline's proposal, and the views of counties and cities. OK. That all sounds great, right? That is what the legislature says they should be considering. But the legislature also required the commission to hold public hearings and have public comment--OK, we are still on the right track--and importantly required the commission to establish a process for appealing the decision, so that any aggrieved party could have due process rights under the Administrative Procedures Act.

Here is the punch line. Tucked away in that Nebraska legislation was a special interest carve-out that exempted TransCanada--Keystone XL--from having to comply with the public service commission process. Specifically, the legislation stated, ``..... shall not apply to any major oil pipeline that has submitted an application to the US Department of State pursuant to Executive Order 13337 prior to the effective date of this act.''

There was only one company that qualified for this special interest exemption at the time of that legislation; that was TransCanada. So you got it. The legislature basically exempted them from that process, even though they were stating that these are the processes that you should go through. So at the very time the legislature created new rules for due process on the pipeline, it exempted them from those rules. I do not understand why TransCanada cannot play by the rules, but I guarantee you Congress does not have to join in and make S. 1 a special interest bill. They should make sure everyone plays by the rules.

In this same legislative session, the Nebraska legislature also passed the Oil Pipeline Route Certification Act. This bill provided Keystone XL with an expedited review process by the Nebraska Department of Environmental Quality and gave the sole authority to approve the project to the Governor. Unfortunately, for the legislature and for TransCanada, these carve-outs quickly became irrelevant because President Obama denied the application in 2012. That is in part due to the fact that Congress had decided to try to intervene in the matter. That is when Congress said this is important and we should go ahead and do this.

I am going to get into more detail on that in a second. This is important to understand because the initial Nebraska legislation was so narrowly tailored, it was designed to benefit the TransCanada pipeline and its pending date of enactment. What happened next? The legislature went back to the drawing board and created a third new special carve-out for the Keystone XL Pipeline.

The day following the President's denial of TransCanada's application, a new bill was introduced in the Nebraska Legislature. This bill was yet another path around the existing due process afforded to citizens in that State. The legislation allowed the company to choose whether to go through a formal process with the public service commission or seek expedited review with the Governor. I am sure a lot of U.S. companies would love to have that opportunity.

These are U.S. companies that have to pay lawyers, go through environmental processes, make sure all of the issues are addressed. I am sure American companies would love to know any day of the week they can just go past a utility commission and get the Governor to stamp ``approved'' on their project. Under this expedited approach, the legislature authorized the Nebraska Department of Environmental Quality to independently conduct an environmental impact report. However, unlike due process required by the public service commission, this process required only token outreach to the public.

There was just one public hearing in 2012. This special process provided no recourse for aggrieved parties. There was no formal appeals process. Other than the courts, there was no administrative process with the ability for stakeholders to challenge the facts as a matter of record to base their formal appeal on. These are fundamental differences between an expedited consideration within the Governor's office and a process requiring a public interest determination by relevant decisionmakers at a commission.

I know my colleagues here would like to argue that somehow this has been a long, drawn-out process. This has really been a process by one company constantly circumventing the rules on the books and trying to get a special deal for approval. We have to ask ourselves why. Why do they want to proceed this way?

I know my colleagues always like to talk about their neighbors. My neighbors in British Columbia are not so thrilled about tar sands pipeline activity. They are not interested in it. So maybe that is why TransCanada wants to hurry and get this process through in the United States.

I ask my colleagues, do you have confidence the public interest was really taken into consideration--that you run over the interests of private property owners on these issues? Was the department of environmental quality evaluation comprehensive?

I can say one Nebraska landowner described the report as ``an incomplete evaluation of a natural resource with the magnitude of the Ogallala Aquifer, and now it is left in the hands of TransCanada to do their own policing.''

Another family, who has been ranching for more than five generations in Nebraska, said the process left landowners with nowhere to turn with their concerns of erosion, water contamination or eminent domain.

Another landowner had this to say about circumventing the process in Nebraska:

I feel it is not in the best interest of Nebraska, nor the citizens of Nebraska, to have our legislators crafting special legislation to meet the specific demands of an individual corporation.

I couldn't agree with them more. That is exactly what we are trying to do today.

The same stakeholders in Nebraska have also questioned the appearance of conflict of interest associated with the Nebraska Department of Environmental Quality report since it was prepared by a contractor who also worked for TransCanada and Exxon on different joint pipeline projects.

Meanwhile, a majority of the State Supreme Court, 4 out of 7 justices, just last week ruled that the legislature and the Governor's actions were unconstitutional.

The PRESIDING OFFICER (Mr. Flake). The Senator has consumed 15 minutes.

Ms. CANTWELL. I ask unanimous consent that I be given an additional 2 minutes to wrap up.

The PRESIDING OFFICER. Without objection, it is so ordered.

Ms. CANTWELL. My colleague has already given me some time this morning--and I can certainly come back and add more to the debate--but what I am outlining is exactly how this process has circumvented the laws of this land. One more action by this body is exactly what this special interest company is seeking.

If Congress had succeeded in pushing the President of the United States into agreeing to the original route through Nebraska in 2011, the route would have been right through the Ogallala Aquifer. Even TransCanada had already agreed that it needed to change the route. I don't know why we are being asked to push something through when we really should allow the State Department to do its job.

I will have much more to say on this process of the circumventing of public interest; about the devastating spill in the Kalamazoo River, and the fact that we don't know all we need to know about tar sands cleanup in water; and the fact that Midwest gasoline prices could be affected if this pipeline is approved.

There are many issues. So I will gladly debate this with my colleagues throughout the rest of this week.

I yield the floor.

BREAK IN TRANSCRIPT

Ms. CANTWELL. Mr. President, as I said, I know we have other colleagues here, so I will wrap up my opening remarks on the debate, then turn it over to other colleagues who are wanting to speak on this subject and other matters this morning.

I want to respond to a couple of things, because I know our colleagues keep thinking this is something we have to do and we have to expedite. But the reason why this project hasn't been approved to date is because we haven't followed the process, and people keep bringing up objections to that process.

Along those lines, I want to turn back to congressional involvement in this matter during the back-and-forth with Nebraska on the pipeline route change in the Sandhills region.

During the time from 2008 until 2012, the U.S. State Department was reviewing TransCanada's initial pipeline application. This process requires a national interest determination by the President. It is worth reminding my colleagues this was a process laid out by President Bush. But in the review of that process, in their initial application, the State Department, in 2011, announced that an alternative route through Nebraska needed to be found to avoid the uniquely sensitive terrain of the Sandhills area.

The President and the State Department said we need to go a different route. So what happens next? One would think that most people would stop and listen and say: Oh, my gosh, there is a concern about this aquifer. But that is not what happened. That is not what happened. People came to Congress and said: We should get the old route approved in the aquifer that provides 30 percent of the groundwater for irrigation through the United States--where a spill would have been disastrous.

At the same time the State Department was telling the company, we have real concerns; you need to re-route the pipeline. The company was coming here to Congress trying to push the old route through at the same time the State Department was negotiating. So I would say to my colleagues, if you think you are helping this process, you are hurting it. You are trying to take away the negotiating power of the State Department to make sure that environmental and public interest issues are addressed here.

Now I know my colleague, whom I look forward to working with on the energy committee, thinks his legislation has protected something in the area of property rights, but let me be clear: This legislation ensures that the status quo in Nebraska under the Supreme Court decision last week will stand. It simply affirms that the use of eminent domain on behalf of TransCanada will be the law. So we are not doing anything in this legislation to protect them. Jamming Keystone XL onto the temporary payroll tax cut bill was a mistake, and the bill today is also a mistake. This bill says, ``Don't try to answer all of these questions that we think the State Department should decide in our national interest.'' The President should have the ability to say yes or no on this.

I would like the President to answer these questions as they relate to the tar sands oil in water, only because I had a chance to ask the Commandant of the Coast Guard a year ago about this issue. We are very concerned about the transport of tar sands out of the Pacific Northwest. The commandant at that time said we have no solution--no solution. So when my colleague from Michigan talked about the $1.2 billion that was spent on tar sands cleanup because it sank in the Kalamazoo River, I think these are issues that the State Department has every right to raise with the company to get answers on.

Just recently TransCanada has been redoing some of its pipeline in other areas because it has also found that the welds in the pipeline were not properly done. So in the State Department's Environmental Impact Statement, it required TransCanada to get a third-party validator to validate whether it was actually meeting the standards we want to see on the pipeline; but, no, our colleagues would like to interrupt that and say: We know best, just like we were ready to make it right with the Sandhills aquifer. We know best.

So I ask my colleagues not to rush a process that has been failed from the beginning, that did not allow for the public interest to be adequately afforded its right.

I don't understand what the hurry is. I do want to hurry on energy policy, but it has much more to do with getting the tax credits and clean energy incentives in place that will unleash thousands of more jobs and give predictability. That is the prerogative and the responsibility of Congress, to look at these tax incentives to establish economic incentives. It is not our job to site pipelines when the local process has not played out. At least don't stop the President from making sure these environmental issues are addressed.

My colleague from Massachusetts has been waiting, and I know he was a leader in the House of Representatives prior to his time in the Senate making sure that tar sands should pay into the oilspill liability trust fund, and I certainly appreciate his leadership on that.

Mr. President, I yield the floor.

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