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AG Reyes & 21-State Coalition File Suit to Block Biden’s Illegitimate Keystone Cancellation

  • Power to regulate foreign and interstate commerce belongs to Congress, not executive
  • Biden does not have power to overturn permit granted by an Act of Congress
  • Pipeline would create thousands of jobs, bolster U.S. energy independence

SALT LAKE CITY (3/17/2021) — Utah Attorney General Sean D. Reyes joined 20 other state attorneys general in filing suit today, led by Montana and Texas, in United States District Court for the Southern District of Texas to block President Joe Biden’s unconstitutional and illegitimate attempt to cancel Keystone XL Pipeline (KXLP).

Despite several exhaustive studies undertaken by the Obama State Department that concluded the Keystone XL pipeline would boost the U.S economy, create American jobs, and safely transport oil throughout the country without increasing greenhouse gas emissions, Biden revoked the permit via executive order mere hours after reciting his oath of office. However, he did not have the power to do so.

Attorney General Reyes said: “President Biden’s decision to revoke the permit for the Keystone pipeline will harm Americans—increasing heating and fuel costs, as well as disrupting transportation that will lead to increased costs for agricultural products and consumer goods. Once again, President Biden ignores separation of powers by revoking the permit even though Congress specifically authorized it in 2011. His decision kills jobs and the significant investments that states and communities have already made”.

“The power to regulate foreign and interstate commerce belongs to Congress – not the President. This is another example of Joe Biden overstepping his constitutional role to the detriment of Montanans,” Montana Attorney General Knudsen said. “There is not even a perceived environmental benefit to his actions – his attempt to cancel the Keystone XL Pipeline is an empty virtue signal to his wealthy coastal elite donors. It shows Biden’s contempt for rural communities that would benefit from and support the project.”

The lawsuit states, “The decision to provide or withhold permission to construct and operate an oil pipeline across the international border with Canada is a regulation of international and interstate commerce. Under the Constitution, this power resides with Congress.” Therefore, “President Biden’s decision to revoke the Keystone XL permit exceeded the scope of his authority under Article II of the Constitution.”

The attempt to block the construction and operation of the pipeline is also “contrary to law and an affront to the Constitution’s separation of powers,” as Congress expressly permitted the project in the 2011 Temporary Payroll Tax Cut Continuation Act.

The Act required Obama to grant the application to construct and operate the cross-border facilities or report within 60 days to Congress why he thought the pipeline disserved the national interest. If he failed to grant the permit or make a negative national interest determination within that time, it provided that the KXLP permit “shall be in effect by operation of law Obama signed the bill into law, but then denied the permit because, he complained, Congress had not given him enough time to consider the matter.  He did not report to Congress why he thought the KXLP disserved the national interest—which means the pipeline was authorized by default rule.

Further, Biden’s permit revocation and the administration’s attempts to carry it out also do not comport with the Administrative Procedure Act, violate the non-delegation doctrine, and are arbitrary and capricious.

The lawsuit asks the court to declare the section of Executive Order 13990 cancelling KXPL’s cross-border permit unconstitutional and unlawful and seeks to prevent the Biden administration from taking any action to enforce the permit revocation.

In addition to Attorney General Reyes, Alabama, Arizona, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, West Virginia, and Wyoming, have joined the lawsuit as plaintiffs.

Injuries to Plaintiff States:

The Keystone XL pipeline would cross into the United States in northern Montana, proceed through South Dakota and terminate in Nebraska where it would connect to other existing Keystone pipelines that travel to state-of-the-art refining centers in predominantly along the Gulf Coast. Seventeen areas in the proposed project area were identified as minority and/or low-income populations.

If Biden’s unilateral decision is legally effective, the highly anticipated jobs, businesses, and investments will not materialize, and these communities will lose out on a once-in-a-generation economic opportunity. It will also have a ripple effect that adversely impacts the economy and environment in non-pipeline states.

Approximately 830,000 barrels of crude oil per day would be transported from where it is produced in Canada and Montana to a large refining hub near the Gulf Coast and supplement refining capacity in Illinois, ensuring a reliable domestic and global energy source, bolstering U.S. energy independence and global leadership.

An estimated 42,100 jobs with $2 billion in associated earnings throughout the United States would be created. Additionally, communities along its path would be infused with tens of millions of dollars in tax revenue.

The pipeline’s area covered by the previous authorization extends from the border about 1.2 miles to and including the first pipeline isolation valve in Montana. Although it is a tiny piece of the Keystone XL project, it is the fulcrum around which it and the larger 2,687-mile Keystone System turns – it is also already substantially complete.

See the lawsuit here

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