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Volume XI, Number 169

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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.

© 2021 BARNES & THORNBURG LLPNational Law Review, Volume VII, Number 87
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Paul Drucker Environmental Attorney
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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.

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Michael Elam Environmental Energy Attorney
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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.

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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.

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