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Keystone XL Permit Approval Continues New Era of U.S. Pipeline Development

On March 24, the U.S. State Department’s Under Secretary of State for Political Affairs issued a Presidential cross-border permit to TransCanada Keystone Pipeline, L.P., pursuant to Executive Order 13337 of April 30, 2004, authorizing the company to construct and operate the Keystone XL pipeline. President Trump invited TransCanada to “promptly re-submit” its application to the State Department in a Jan. 24, 2017, Presidential Memorandum, which the company did on Jan. 26.

The Secretary of State is authorized by Executive Order 11423 of August 16, 1968, as amended, and Executive Order 13337 of April 30, 2004, to receive applications for Presidential permits for cross-border petroleum pipelines and issue permits for projects that “would serve the national interest.” The Obama Administration State Department issued a determination on Nov. 6, 2015, that Keystone XL would not serve the national interest because it “would significantly undermine [the U.S.’s] ability to continue leading the world in combatting climate change.” The Department of State Record of Decision and National Interest Determination that accompanied the March 24 permit notes that “there have been numerous developments related to global action to address climate change” and that “in this changed global context, a decision to approve [Keystone XL] at this time would not undermine U.S. objectives in this area.”

The State Department’s approval of the Keystone XL Presidential permit continues the brisk pace of decisive executive action on pipelines, such as the U.S. Army Corps of Engineers’ grant of the easement for the Dakota Access Pipeline in February after another Jan. 24, 2017 Presidential Memorandum directed the Corps to expedite the review process.

Various environmental groups, native tribes and other pipeline opponents have expressed their intent to challenge the March 24 Presidential permit. Meanwhile, TransCanada will still need to obtain approvals from multiple state public service commissions along the pipeline’s proposed route. For example, the company filed an application with the Nebraska Public Service Commission on Feb. 16, 2017, and multiple parties have petitioned to intervene in the process both in favor of and opposing the pipeline.

© 2020 BARNES & THORNBURG LLPNational Law Review, Volume VII, Number 87


About this Author

Paul Drucker Environmental Attorney

Clients call on Paul Drucker to handle high-profile litigation and appeals, complex internal investigations concerning environmental incidents, environmental due diligence for corporate and real estate transactions, and regulatory compliance matters and settlements.

Paul is adept at helping clients develop comprehensive legal strategies that take into account their business operations, their commercial interests and their desire to be in compliance with applicable statutes and regulations. Paul’s ability to analyze and streamline complex problems and develop understandable and...

Michael Elam Environmental Energy Attorney

Veteran attorney Michael Elam brings more than three decades of experience in environmental, energy, infrastructure and natural resource law in both the private and public sectors. He structures creative agreements and helps secure approvals and financing for complex national and international agreements involving the development, remediation and financing of environmentally challenged or controversial projects surrounding energy and sensitive water bodies or sources.

Michael represents businesses and other clients in complex projects and transactions, disputes and litigation. He is known for helping clients obtain creative and cutting-edge agreements, particularly with respect to infrastructure and energy-related international projects. Michael offers deep experience in investigations, risk avoidance, risk allocation and dispute resolution with a chess vs. checkers approach to clients’ long-term goals. He is effective in working with federal, state and international governments and representing private sector clients seeking to secure approvals and financing for sensitive development projects or to resolve significant, complex claims.

Michael advises on virtually all aspects of acquiring, selling, developing, financing and leasing of properties, businesses or projects. He is particularly capable in matters involving environmental, water or energy concerns or complicated funding and delicate public relations and political issues, including international projects in conflict zones and politically frangible areas. Michael has counseled clients and coordinated teams addressing the siting, permitting, construction, sale and financing of traditional and renewable facilities, transmission lines, storage, refineries, pipelines and transportation infrastructure projects in the U.S. and internationally.

Notably, Michael possesses a keen understanding of the inner workings of non-governmental organizations (NGOs), governmental agencies and capital markets and has facilitated siting approvals, multiparty agreements and financing for projects. This includes substantial infrastructure projects and business transactions in challenging countries, including Iraq, where he worked with the U.S. State Department and represented the Government of Iraq in negotiations with numerous corporations, countries and NGOs on multibillion-dollar energy and infrastructure matters.

Paul N. Garinger litigation lawyer Barnes Thornburg
Of Counsel

Paul N. Garinger is of counsel in Barnes & Thornburg's Columbus office and a member of the firm's Litigation Department and Pipeline Practice Team. He concentrates his practice on complex commercial litigation before state and federal trial and appellate courts.

Paul has focused his practice in the area of oil and gas law and pipeline related issues. Paul's commercial litigation clients have included a multinational energy company in a large-scale federally regulated pipeline project across the state of Ohio, oil and gas exploration and production companies,...

Jeffrey M. Peabody Corporate and Energy Law Attorney Barnes Thornburg Law Firm Indianapolis

Jeffrey M. Peabody is a partner in the Corporate and Government Services and Finance Departments in Barnes & Thornburg LLP’s Indianapolis office.

Mr. Peabody’s practice area is focused on electricity, natural gas, water and wastewater utilities. He represents a wide range of public utilities, including investor-owned utilities, not-for-profits, municipal utilities, and privately held companies. He represents utilities in rate cases, periodic rate adjustment (tracker) proceedings, environmental compliance matters and other filings before the Indiana Utility...

Douglas Everette Energy Telecomm & Utilities Attorney
Of Counsel

Douglas W. Everette is of counsel in Barnes & Thornburg's Indianapolis and Washington, D.C., offices and is a member of the Corporate Department and the Energy, Telecommunications and Utilities Practice Group.

Douglas concentrates his practice on the representation of investor-owned utilities, independent power producers, renewable resources, municipalities, cooperatives, power marketers, industrials and power project developers on the energy regulatory aspects for the financing, development, acquisition and disposition of energy assets. His practice also focuses on representing...