BILLINGS – Montana and five other states say President Barack Obama overstepped his power by rejecting the Keystone XL pipeline, whose developers are now suing four presidential cabinet members.
The states along the pipeline’s route filed a friend-of-the-court brief this week arguing that Congress, not the executive, has the right to regulate interstate and international commerce. The pipeline, which would have crossed the Canadian border, was being developed by TransCanada, which is now suing the government.
“Because of the president’s representations to the rest of the world that America would lead in reducing its carbon footprint, that that was the sole reason for denying the permit,” Montana Attorney General Tim Fox said. “That’s ludicrous because it’s outside the authority granted to the president and it’s the first time in history of these trans-border applications that one was denied for any reason.”
TransCanada filed its lawsuit at the beginning of January, exactly two months after Secretary of State John Kerry announced that the U.S. would be best served by denying Keystone XL a permit. And Kerry did, according the Secretary of State documents, reference a need for the U.S. to practice what it preaches about climate change to other countries.
“The United States cannot ask other nations to make tough choices to address climate change if we are unwilling to make them ourselves,” Kerry said. “Denying the Keystone XL pipeline is one of those choices.”
However, leading by example wasn’t the only reason given. Kerry also concluded that the Keystone XL pipeline would have insignificant impact on U.S. security. He said that the pipeline wouldn’t lead to lower U.S. gas prices, and that Keystone’s long-term contribution to the U.S. economy would be marginal. The State Department concluded the Keystone XL pipeline raised concerns about water supplies in communities along its route and the preservation of cultural heritage sites. The department also objected to importing Canadian tar sands oil, “a particularly dirty source of fuel.”
The TransCanada lawsuit argues that by blocking Keystone’s pipeline construction, the United States violated the North American Free Trade Agreement. The company demands $15 billion in compensation.
Last month, the Obama administration asked the Texas federal court, in which the lawsuit was filed, to dismiss the case. The administration’s argument is that President Obama has the right to set foreign policy, the policy in this case being Obama’s fight against climate change.
The attorneys general are advising the court that the President’s decision does pose significant harm to the six states along the pipeline’s path. Jobs and tax revenue were lost when the pipeline was rejected, they argue. Approving the pipeline was a foreign commerce issue, they say. Congress calls the shots on foreign commerce, not the president.
“There are over a 100 trans-border oil pipelines, gas pipelines and transmission lines, either over the Mexico-U.S. border of the Canadian-U.S. border,” Fox said. “All have been approved over the years, none of which have received the scrutiny the Keystone XL pipeline received and none of which were denied.”
State attorneys general have proven they can influence a judicial debate, Fox said. Attorneys general have for now halted a federal government attempt to extend federal control on streams, ponds and tributaries feeding U.S. waterways. States have for now halted the Clean Power Plan, as well. The interest in both cases is states’ rights.
“It’s an extraordinary time to live in,” Fox said. “We’ve never seen this amount, if you will, and level of federal overreach.”
Kansas, Nebraska, Oklahoma, Texas and South Dakota are the other state’s involved in the amicus brief. The attorneys general are all Republican.
However in Montana, support for the Keystone XL pipeline has been bipartisan. Gov. Steve Bullock and former Gov. Brian Schweitzer, both supported Keystone XL. Schweitzer secured an onramp at Baker for loading Bakken oil into the pipeline. U.S. Sens. Steve Daines, a Republican, and Jon Tester both supported Keystone XL. Rep. Ryan Zinke, a Republican, joined the senators in opposing the State Department's decision last November.