Republicans in Congress held the payroll tax cut extension hostage specifically to force President Obama’s hand on the Keystone XL tar sands pipeline, looking for a “jobs versus the environment” talking point in the presidential election contest. I join the rest of the environmental community in applauding President Obama’s decision to reject the pipeline. Even apart from the localized environmental impacts and the risks to the Ogallala aquifer, anyone concerned about global warming must applaud any move that reduces the amount of fossil fuels we collectively pump out of the ground or raises the price for burning such fuels.
Reaction to the President’s decision has gone according to script, with environmentalists welcoming the decision, and the President Obama’s political opponents accusing him of destroying the prospects of thousands of construction jobs during a time of high unemployment.
One fascinating aspect of President Obama’s justification for rejecting the pipeline application has gone unremarked: the President attributed his rejection of the pipeline application to the lack of sufficient time to perform necessary environmental reviews of alternative pipeline routes. But the payroll tax legislation specifically exempted the Keystone XL pipeline, including any alternative routes, from further review under NEPA, so the need for environmental review the President relied on is not a statutory requirement. By Congressional fiat (with Presidential acquiesence), NEPA no longer applies.
Thanks to NEPA, environmental impact review of government actions has become a bedrock principle of environmental law, making it into the Rio Declaration (Principle 17) and widely adopted by governments and institutions around the world. President Obama’s rejection of the Keystone XL pipeline on the grounds of inadequate environmental review demonstrates that the principle of environmental impact assessment is a first order political principle, not just a legal requirement.
This being an election year, one has to assume that someone on the President’s political team made the assessment that “Environmental Impact Review” is an adequate political answer to “Jobs Jobs Jobs,” even during a recession.
In other words, NEPA applies, even when it does not apply. That’s quite an accomplishment for a middle-aged environmental statute once described as a “paper tiger.”