Keystone Report Skirts Climate Question Posed Under NEPA, Lawyers Say

WASHINGTON—The surprising message of the State Department's latest Keystone review—that the decision whether to approve the disputed pipeline won't have much effect on the environment—can be traced to the way the agency framed the report.

The study presents an analysis of how markets will adjust if the pipeline isn't built. But lawyers and pipeline opponents say that approach allowed the State Department to dodge the central question that the National Environmental Policy Act, or NEPA, presents about major federal decisions: What would it mean for the environment, including for climate change, if the project is built?

Instead, the report looked at what might happen if the pipeline is rejected and declared that any benefits to the global climate would be trivial. Canadian producers would continue to ship oil sands products to U.S. refineries by other means, such as rail, the report concluded, and greenhouse gas emissions from this unusually dirty oil would continue more or less unabated.

That approach "is not in keeping with the letter or the spirit of NEPA," said Pat Parenteau, an environmental lawyer at the Vermont Law School. "It stands the whole concept of examining the consequences of your actions on its head, it really does."

Calling the State Department's approach "highly suspect," "very questionable," and "very disingenuous," Parenteau predicted: "There is going to be litigation if this is approved."

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