- 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, generate millions of dollars for Montana communities
Montana Attorney General Austin Knudsen, Texas Attorney General Ken Paxton and 19 other state attorneys general filed suit today in United States District Court for the Southern District of Texas to block President Joe Biden’s unconstitutional and illegitimate attempt to cancel the 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.
“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,” 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 in Montana and other states along the pipeline’s path 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,” 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 Montana and Texas, attorneys general from Alabama, Arizona, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia, and Wyoming have joined the lawsuit as plaintiffs.
Injuries to Montana and Other States:
The Keystone XL pipeline would cross into the United States in northern Montana and pass through six counties – five of which are designated as high-poverty areas – before proceeding through South Dakota and terminating in Nebraska where it would connect to other existing Keystone pipelines that travel to state-of-the-art refining centers predominantly along the Gulf Coast. Seventeen areas in the proposed project area were identified as minority and/or low-income populations.
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.
Communities along its path would be infused with tens of millions of dollars in tax revenue, a transformative amount for low-population areas like McCone County, Montana. State and local tax collections in Montana were expected to exceed $65 million annually.
Additionally, an estimated 42,100 jobs with $2 billion in associated earnings throughout the United States would be created, including 3,700 direct construction jobs in Montana garnering approximately $127 million in employment earnings.
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.
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.
