A Slick Argument Could Revive the Keystone XL Pipeline

By: Eric Sell

Grab some popcorn, your pocket Constitution, and get ready for a journey down memory lane—the Keystone XL Pipeline is back in the news.  And true to form, the latest debate surrounding the controversial project is bursting at the seams with some exciting (albeit esoteric) legal wrangling.  This time, over our old friends the Presentment Clause and Foreign Commerce Clause.[1]

Last month, twenty-one states filed suit against the Biden administration over the newly-minted President’s decision to rescind a key permit for the construction of the Keystone XL Pipeline.[2]  The project has been a cause célèbre for both fossil fuel advocates and environmentalists alike for well over a decade—a saga riveling the reign of Gilgamesh or the journey of Odysseus.  Well, maybe not THAT epic, but it’s at least in the same category as Seinfeld.[3]  Put simply, the oscillation of victories and defeats for both sides in this long-running conflict (coming up on almost 13 years!) is enough to give the most hardened warrior whiplash.[4]  And while we can always count on the next chapter being just as exciting as the last, the latest advance raises an interesting legal debate involving the President’s power over foreign commerce.  

Stretching from the tar sands of Alberta to the gulf coast in Texas, the nearly 2,700  mile Keystone XL Pipeline would have the capacity to transport 830,000 barrels of oil a day, making it one of the largest oil-transport pipelines in the world.[5] The economic and tax-base benefits are oft cited by proponents, with estimates suggesting the project would create “42,100 jobs” and generate “approximately $2 billion in earnings throughout the United States.” [6] Environmentalists opposed to continued reliance on fossil fuels predictably argue the environmental and climate impacts far outweigh the economic benefit.[7]

On January 20, 2021—mere hours after taking the oath of office—President Joe Biden issued the first executive order of his administration, titled “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.”[8] The order checked off a plethora of action items environmental advocates have been frothing over for decades; among them was the cancellation of the permit necessary for constructing the 1.2 mile section of the Keystone XL Pipeline crossing the U.S./Canadian border from Alberta into Montana.[9] The cancellation of the permit was intended to be the project’s death knell, but an army of Republican state attorneys general were ready for a fight.[10]

The States’ assert a variety of claims for why the President’s recission of the permit was unlawful, including the run-of-the-mill claims of arbitrary and capricious agency action by the State Department, the agency that issued the permit.  But the most interesting claims involves less-commonly referenced Constitutional provisions that are infrequently the subject of judicial analysis: The Presentment Clause and Foreign Commerce Clause.[11]

Some background is necessary to understand the states’ arguments. The Keystone XL Pipeline was first proposed in 2008 by TC Energy (then TransCanada).[12]  Following the company’s initial application for the requisite permits, the United States Department of State under the Obama administration spent three years studying the project’s potential environmental impact.[13] Ultimately, the State Department concluded “that the Keystone XL would not materially affect greenhouse gas emissions or alter the amount of extracted and combusted crude oil on the world market.”[14]  But in November 2011, the State Department “concluded it could not authorize the cross-border Keystone XL facilities without additional information.”[15]

Given the pipeline’s national profile and symbolic stature, the then-Republican-controlled Congress took it upon itself to give the Obama administration an ultimatum.  In December of 2011, Congress passed legislation directing the President to either approve or deny the project within 60 days, and if the latter, to explain why the project was not “in the national interest.” [16] If the President failed to provide within the prescribed timeframe an explanation for why Keystone XL was not “in the national interest,” the requisite cross-border permit would “be in effect by operation of law.”[17]  President Obama ultimately determined that 60 days was not an adequate time to reach the determination requested by Congress, and his administration denied the permit in January of 2012.[18]  After a series of failed efforts by TC Energy to convince the Obama administration to reconsider Keystone XL’s worth, the Pipeline appeared dead. But then Donald Trump became President.

Shortly after taking office in 2017, President Trump issued an executive order encouraging TC Energy to reapply for the previously rejected permits.[19] And on March 23, 2017, the State Department issued to TC Energy a permit “to construct, connect, operate, and maintain pipeline facilities at the international border of the United States and Canada at Morgan, Montana, for the import of crude oil from Canada to the United States.”[20]  By the end of 2020—before President Biden even took office— the 1.2 mile section of the Pipeline crossing from Canada into the United States was “substantially completed.”[21] 

The states’ argument go as follows: Congress’s action in 2011 required the Obama administration to make a specific finding as to why the Pipeline was not in the national interest. Because the President did not do so, instead saying the 60-day timeframe was insufficient, the cross-border permit became effective. And because Congress, not the President, has the sole constitutional authority to regulate foreign commerce, any action taken after February of 2011 by the President related to the cross-border permit is legally void.  So, while both sides have engaged in a heavy dose of political posturing and spilled much bellicosity over this project in the past decade, most of it was largely over questions Congress already settled.  

The Biden administration will launch its opening salvo in the latest round of the Keystone XL epic later this month. If the Republican states’ complaint makes it to the merits briefs, the arguments they raise will require the court to consider interesting, important, but infrequently-considered questions of constitutional law.  And if this is the last chapter in the Keystone XL saga, what a fitting final act it will be.  


[1] See U.S. Const. art. I, §§ 7-8.

[2] See Melissa Quinn, 21 states sue Biden for revoking Keystone XL pipeline permit, CBS News (Mar. 18, 2021), https://www.cbsnews.com/news/keystone-pipeline-21-states-sue-biden/; Complaint, Texas v. United States, No. 3:21-cv-00065 (S.D. Tex. Mar. 17, 2021).

[3] The American sitcom television show Seinfeld had 172 episodes, which aired on NBC from 1989 to 1998.  See Seinfeld, IMBD, https://www.imdb.com/title/tt0098904/ (last visited Apr. 4, 2021).

[4] See A look at the history of the Keystone XL pipeline expansion, CBC News (Jan. 17, 2021), https://www.cbc.ca/news/canada/timeline-keystone-xl-pipeline-1.5877117 [hereinafter Pipeline Expansion] (providing a detailed timeline of the Keystone XL project).

[5] See Complaint at ¶ 26, Texas v. United States, No. 3:21-cv-00065 (S.D. Tex. Mar. 17, 2021); NS Energy Staff Writer, Profiling the world’s major oil and gas pipeline projects, NS Energy (Oct. 31, 2019), https://www.nsenergybusiness.com/features/worlds-major-oil-and-gas-pipelines/.

[6] See Complaint at ¶ 37, Texas v. United States, No. 3:21-cv-00065 (S.D. Tex. Mar. 17, 2021).

[7] See, e.g., Stop the Keystone XL Pipeline, Nat. Res. Def. Council, https://www.nrdc.org/keystone-xl-pipeline (last visited Apr. 4, 2021).

[8] See Exec. Order No. 13990, 86 Fed. Reg. 7037 (Jan. 20, 2021).

[9] Id. (listing the action items contained in the executive order).

[10] Joseph Guzman, 21 states sue Biden for cancelling Keystone XL pipeline, The Hill (Mar. 18, 2021), https://thehill.com/changing-america/sustainability/energy/543913-21-states-sue-biden-for-cancelling-keystone-xl.

[11] See Anthony J. Colangelo, The Foreign Commerce Clause, 96 Va. L. Rev. 949 (Sept. 2010) (“[U]nlike its Article I, Section 8 sibling, the Interstate Commerce Clause . . . the Foreign Commerce Clause has received little sustained analytical attention.”).

[12] See Pipeline Expansion, supra note 4. 

[13] Id.

[14] Complaint at ¶ 29, Texas v. United States, No. 3:21-cv-00065 (S.D. Tex. Mar. 17, 2021).

[15] Id.

[16] See Temporary Payroll Tax Cut Continuation Act of 2011, Pub. L. No. 112-78, 125 Stat. 1280 (2011).

[17] Id.

[18] See Press Release, President Barack Obama, Statement by the President on the Keystone XL Pipeline (Jan. 18, 2012), https://obamawhitehouse.archives.gov/the-press-office/2012/01/18/statement-president-keystone-xl-pipeline.

[19] See Memorandum on Construction of the Keystone XL Pipeline (Jan. 30, 2017), https://www.govinfo.gov/content/pkg/FR-2017-01-30/pdf/2017-02035.pdf.

[20] See Notice of Issuance of a Presidential Permit to TransCanada Keystone Pipeline, L.P., 82 Fed. Reg. 16,467 (Apr. 4, 2017), https://www.federalregister.gov/documents/2017/04/04/2017-06646/notice-of-issuance-of-a-presidential-permit-to-transcanada-keystone-pipeline-lp.

[21] See Complaint at ¶47, Texas v. United States, No. 3:21-cv-00065 (S.D. Tex. Mar. 17, 2021).

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