Government would not be involved. Washington would not know about it at all. But it is required that the state department pursue it not any statutory framework, but a series of order starting with president s, starting in the 1950s. Most recently executive order 10 42 three was amended by the executive order reference in the first hour, executive order 113 37. Those orders designate the secretary of state to receive all applications for president ial permits for the construction, operation, or maintenance at the borders of the United States for facilitating transportation of Petroleum Products to or from a foreign country. Just athe review is Border Crossing, the fact that the state department involved, allows the state department to review the environmental policy. A key to understanding the Legal Framework is to note that these are standing executive orders and they were not issued pursuant to a statutory grant and authority. Congress did not legislate to create this permitting framework we are on now. Instead, past president s created this permitting requirement pursuant to what they saw as Constitutional Authority. The constitution does not expressly accord the president or the state department the responsibility for reviewing permit applications. However the president s recognized authority in the era of Foreign Affairs permits them to take action in affairs of foreign commerce. That has been an issue of some controversy. Clintonlub versus challenged the secretary of states permission to authorize a pipeline from alberta, canada to wisconsin. It sounds familiar, i am sure. They argued that the president did not have legislative authority, as i just discussed. Court responded that it does not arise from a delegation of authority, but rather from the authority over matters of Foreign Affairs. And he District Court agreed. Similarly im going to mess this up so apologies in advance. A similar decision. The plaintiff tried to suspend or revoke a president ial permit issued under executive order 133 keystone pipeline, the predecessor to keystone xl. Violated theat it National Policy procedure act. Thecourt found that president would be free to disregard the courts judgment, as the case was considering the president s and eric Constitutional Authority to conduct foreign policy, as opposed to a Statutory Authority granted to the president by congress. Thus the decisionmaking process in that case not was not subject to challenge, as would be the case under normal administrative framework. However, the sluggishly does not mean the president s Constitutional Authority to isulate boarding crosses explicit. In both decisions the courts made a point to note that the executive branchs unilateral authority was in the absence of legislation permitting these Border Crossings. In seroquel, the court pointed out that congress has not attempted to exercise exclusive in sierra club, the court pointed out that congress is not attempted to exercise exclusive decision in this case. In the other decision, the court noted that the president s Soul Authority to permit Border Crossings is because congress has failed to create a regulatory scheme for the pipeline. That is what you see the piecemeal approach to permitting that caused robinson problems nebraska. Where does this lead us . We have the secretary of state reviewing Oil Pipelines, like this one here. We know the orders and decisions made to the executive Branch Pursuant to those orders have been found to be a legitimate exercise of the president s power to administer Foreign Affairs. However the courts have recognized that congress has the authority to enact legislation to supersede this framework if it so chooses. With that in mind, i will turn it over to my colleagues, who i think will ask us congressional efforts to do just that. Over to you, ben. Thank you. My name is ben lieberman. I work for the house energy and commerce department. I do not think it will surprise any of you to note that there will be a keystone bill in 2015. I should add a caveat. We have not lamed anything. Only we have not claimed anything. So i can only guess, but i think be a keystone bill fairly early in 2015. For one thing, there is no need for additional factfinding. Scaryf us see the at this point. And since this project is strongly supported by the American People and congress will reflect that support. We have seen all of the polls. It is worth noting, at this point all of the arguments that made,be made have been and have gotten a fair share of attention. The needle has not budged too much on the American Peoples support for the pipeline. What would a new keystone xl bill look like . I think it will look like our , northern approval act. It will probably eliminate the need for a president ial permit for keystone xl and deem the Environmental Impact statements sufficient for all legal purposes. It also take steps to take take on additional delays to read we would not want to support years of white house delays with years of judicial delays under various statutes. Rom antipipeline activists the goal of the statute would be to pass something that could get the pipeline built fairly early or it underway fairly soon. That it would be more bipartisan. The keystone bill has gotten some craddick support. But i think we have something of a breakthrough with another bill, hr six, the lng export bill, which was a somewhat controversial issue. On the republican side, we introduced a bill. And number of democrats said, we can agree with this in concept, but we want changes made. We worked through with this and came up with an amended bill that passed 46 and amended votes in favor. Continue thatcan bipartisan support approach into next year. Happen if the senate turns republican . N one sense, it did not change already, there is probably majority support for keystone xl, although not necessarily the 60 votes necessary, certainly. Ot the 67 to override a veto what changes it now . The senate would be able to bring a keystone bill to a vote, and that would also bring in a number of strategies. For example, could a keystone bill be attached to a must pass spending bill. That would be horrible to vote no one. All of these things can happen if the senate turns republican. If it stays democrat, i think we will see more of the same. Senatese voted and the disposes. That raises the question, what would president obama do if the keystone bill were to reach him . I think most people would presume he would vote no based on what he said about keystone. It is worth noting the president has never categorically said he would oppose keystone. He has always had a specific reason at the time for opposing keystone, for what ever that is worth. We see keystone xl as part of a larger trend. As we all know, there is tremendous growth in oil and Gas Production in the u. S. And north america and there is a tremendous need for infrastructure to keep up with that growth, including projects, including u. S. Mexican border projects. We can take a look at larger process reforms. Essentially, in a nutshell, what this bill does it removes the additional layers of steps triggered by a Border Crossing , the oil sands in north dakota. That is my hypothetical. Wouldve the oil sands were in sandsa what if the oil were in montana . It would still be subject to a environmental and safety reviews. But there would not be the added step of a president ial permit and the National Interest determination because the executive orders we discussed. We would streamline are possibly even eliminate the need for a president ial primary a president ial permit just because the project happens to crossing national border. Process billsse are a part for many keystone bill, but we also will probably be looking at these larger process changes that would help build the north American Energy infrastructure that we need. Thank you. Thank you. Stephen . I appreciate the opportunity to appear on this panel. I have spent most of my legal career representing pipeline companies, including on crossborder projects like keystone. Neither my firm nor i have had relationships with the se, so allpeline per of my comments will be from an outsider point of view. I do want to talk about the he tells of the process that ben was just talking about, how pipelines do get approved. I thought the journalist was showing you how interesting it could be. My job is to show you how tedious it can be. Hopefully we can rise above the tedium. We can do that by contrasting and comparing the processes you go through if you are trying to develop a gas pipeline, a domestic oil pipeline, and then third, what is different about having to build a crossborder oil pipeline like keystone . Tohink that will illuminate some extent why we are in the situation or why keystone is in the situation they are in. Lets start with national asked pipelines. National gas pipeline is regulated by the federal Energy Regulatory commission, an independent Agency Within the department of energy. Five commissioners appointed by the president. They operate on their own. It is basically a nonpartisan agency. Is very well defined. There are clear timetables. There is a clear process. Through theg application and approval process. Only considers Public Interest issues, but it is also the lead agency for the Environmental Review, meaning it takes the lead among all of the agencies are affected, and gathering information and determining the environmental a project. You come away with a certificate that basically allows you to build the pipeline. It overrides all of the state and local regulations that might have otherwise impeded getting it built. Rc also takes care of Eminent Domain. When you have a ferc certificate, you have an eminentmain domain pipeline certificate. It is basically onestop shopping. That is domestic. If it crosses International Borders, as a couple extra steps. One is you have to go to the department of energy for approval of the import of the natural gas itself. That is usually a pro forma process. And you are required to get a president ial permit for your pipeline. But the difference between gas alsoil is the ferc considers your president ial permit application as part of , andwhole review process they issue one decision that includes both the decision on an Environmental Impact and the decision on granting these certificate, the decision on granting the president ial permit. A pretty welldefined and smoothly functioning, by and large, process. Pipelines, aoil pipeline that carries liquid hydrocarbons as a core two natural gas, we have an entirely different regime. The first and most important hasg about that is the ferc no role in the approval and citing of an oil pipeline, whether it crosses an International Border or does not. That outly confirmed of a decision from a pipeline in north dakota. The Commission Said in its order, we have no authority to approve or disapprove these pipelines for sale. All we can do is rule on issues regarding what rates will be when he goes into service. Because there is no federal law requiring approval for the building of the pipeline, that is now open entirely to the states. The states play a fairly prominent role in the building of Oil Pipelines. Some states have very detailed procedures for approval of Oil Pipelines. Alaska, minnesota, california. They usually assign it to a regulatory Agency Within the state. They can hold hearings and gather evidence. It can be a fairly lengthy process. Some states have permits, but only if they pipeline exercises Eminent Domain in that state. Illinois isnt example of that. In order to have Eminent Domain in illinois you have to have a certificate from the illinois commerce commission. Most do not, either because there are no Oil Pipelines across the state, or in southwest states, they seem not to be concerned about building thenines, or other specific environmental permits required. There is some federal involvement, because to build a pipeline, you likely crossover federal lands, natural forests, that sort of thing, or navigable waterways. In either case, you are going to have to get her meds from various federal agencies to do that. Those, thessing federal agencies involved and not look at the entire pipeline project. I typically look at just where you are crossing the waterway or the federal lands. You look at the impact of that on its own and there is no overarching Environmental Review is what were seeing in the keystone case. And finally, there is safety regulation. The department of transportation it regulates pipeline safety, and if you are building a pipeline project, if it is more than 2. 5 billion, a require you to come in and seek prior approval for construction and design. If it is less than that, they still encourage you to do the same thing. There is no one federal agency like the ferc looking at this project. Piecemeal money basis. What changes if you take your pipeline in the u. S. And extended into canada and now it is crossing International Borders . Just like domestic violence, the federal energy wrigley jory commission is not involved at all. It is the department of state, as has been discussed many times, that leads this process. They act not only with respect to the finding of National Interest, which is a requirement to issue the president ial permit, but also the lead agency for the Environmental Review, which is a somewhat unusual role for the state department to have. Agencies like the ferc or the army corps of engineers go through hundreds of these reviews every year. The state department is probably done a handful in the last five or 10 years. It is somewhat an unusual role for state. Process, therc president ial permit process does not preempt state law. States still have citing and approval for the routing of pipelines, which we have seen with nebraska. And the president ial permit does not give the pipeline imminent domain authority. So, a pipeline being built across the border may get his president ial permit. It still has to go through all of the process of acquiring rightofway and permits along the route. It is somewhat the worst of both worlds. You get the full review process only it ferc would do, is being performed by the state department, and youre still subject to every hurdle in every would be locality that true of the domestic oil pipeline. Given that description, i think it is fairly clear why this is somewhat of a uniquely challenging process for pipelines that want to go across the border and why there are so many opportunities for pipelines to get derailed in that process. Having said that, the process can work. There are multiple pipelines that carry oil, actually in both directions. Have recently been permitted. It is not an impossible process. As some have pointed out, i think that keystone became a symbol much greater than the reality of the project and the process has really stretched out. Ok. What is the role of the public in any step of this . There have been public submissions, public hearings. Do you have to have them . What do have to do with the submissions when they come in . How can that affect the process question mark certainly the state department has public which areriods, required. They also get comments from other federal agencies. They are required to consult with other designated agencies. The department of defense, for example. They are required to get the views of the Environmental Protection agency. And in fact the environmental Reduction Agency has weighed in several times, criticizing the state department Environmental Impact statement, asking for more information, that kind of thing. I think one of the journalist commented later earlier. You look at the executive orders, they are two pages long. The state Department Regulations are not as detailed as the Environmental Review regulations that other agencies. A lot is left to discretion. To point outrtant the public can be heard on the local and state level, much more than they could write a natural gas pipeline. Gas pipeline. L that avenue is much more open in this case then it interstate gas pipe. Can the local people stop that . Today ies from state to stay. With nebraska, with the recent was previously to go for the Public Service commission. The Public Service commission would hear public comment, only there you would assume there would be a much more local first of all, there would be a localwer voices and focus. I do not know if it was explained in the first hour. The Nebraska Legislature decided to supersede the pscs jurisdiction and allow parties to go to the governor directly. That is what the litigation is about. Some states let the public voice be heard through elections. And there are some states would vary from state to state as far as what the processes for public input. Cindy . Wait for the microphon