In a chapter reminiscent of Bleak House or the recent New York Times series on the Bronx court system,1 the U.S. Environmental Protection Agency (EPA) recently filed comments on the draft Environmental Impact Statement (EIS) for the Keystone XL pipeline project expressing its view that the EIS contained “insufficient information.” http://www.epa.gov/compliance/nepa/keystone-xl-project-epa-comment-letter-20130056.pdf (EPA Comments). The Keystone XL saga bodes ill for the efficient development of domestic energy supplies and strongly supports congressional calls for systematic reform of the permitting programs.
The National Environmental Policy Act (NEPA) and Section 309 of the Clean Air Act (CAA) authorize EPA to review and comment on the draft EIS prepared in conjunction with the application for a Presidential Permit submitted by TransCanada Keystone Pipeline, LP. EPA raised four issues in its comments:
- Analysis of lifecycle greenhouse gas emissions from development of the Canadian oil sands;
- Pipeline safety and spill prevention measures included as permit conditions;
- Analysis of alternative routes for the pipeline; and
- Analysis of environmental justice and community impacts.
EPA concluded by rating the draft EIS as “not contain[ing] sufficient information for EPA to fully assess environmental impacts that should be avoided to fully protect the environment . . . .” EPA Comments at 6 & Enclosure. The adverb “fully,” which appears twice in EPA’s conclusion, highlights the problem. From Webster's, to Random House, to American Heritage, the word “fully” means “totally or completely,” “to the greatest degree or extent,” “entirely or wholly.” In the context of such subjective goals as “environmental impact that should be avoided” and “protect the environment,” such a standard is either impossible to fulfill or is divorced from common understanding.
Since September 19, 2008, when TransCanada applied to the State Department for a Presidential Permit, the environmental impacts of the proposed Keystone XL Pipeline have been assessed, revised, supplemented and debated. This process has no doubt produced improvements in the protective measures required of TransCanada and reduced the potential for threats to human health and the environment. But, like all human endeavors, it cannot achieve perfection. Yet, a process that continuously seeks more and more information and study so that impacts are “fully” assessed and the environment “fully” protected, hastens the day on which TransCanada concludes that its resources are better invested in other projects.
The issues EPA raises in its comments involve legitimate practical considerations concerning the specific terms to be included in a final permit. The comments also acknowledge the uncertainty inherently involved in attempting to compare greenhouse gas impacts of the specific project under review with the virtually limitless alternatives means for developing the Alberta oil sands. None of the comments, however, identifies issues sufficient to alter the conclusions in the draft EIS. Further delay demonstrates only the need for Congress to seriously consider reform of the permitting process.