From Application to Revocation, the Thirteen-Year Saga of Keystone XL

Try this at the next dinner party. Ask a guest how long it takes America to approve a steel tube. Not to build it. To approve it. Then watch their face when you tell them that one oil pipeline, proposed in 2008, lived through four presidencies, a veto, two denials, a Congress that passed a bill approving it, and a trip through the federal courts, and then died in 2021 without ever losing a single up-or-down vote. It is the only thing in Washington that managed to be both approved and dead at the same time, which is a trick the Senate has never mastered.

That is the story of Keystone XL. I want to give it to you in order, with dates, because the dates are the argument. Nobody has to hate pipelines to see what happened here. All you have to do is read the calendar and ask who actually decided what, and when, and under which law.

What Keystone XL was supposed to be

The plan was simple enough to draw on a napkin. TransCanada, the Canadian company that later renamed itself TC Energy, wanted to build a large new oil pipeline from Hardisty, Alberta, down through Montana, South Dakota and Nebraska to Steele City, Nebraska, a distance of roughly twelve hundred miles. At Steele City it would join an existing pipeline network that carries crude on to refineries on the Gulf Coast. The oil came from the Canadian oil sands, which is heavy crude that Gulf Coast refineries are built to handle.

Hold that picture, because most of the fight was not about the oil. It was about the permission slip. The company needed state approvals along the route, it needed access to land from many owners, and, because the line crossed an international border, it needed something that a purely domestic pipeline does not need: a presidential permit. We will come back to why. First, the calendar.

The timeline

2008: the application

In September 2008 TransCanada applied to the State Department for a permit to cross the Canada-United States border. The first Keystone line, a separate and smaller project, had received its border permit earlier that year, so the company had every reason to expect a routine process. Border permits for oil lines had been issued before, and nobody thought this one would be different.

2010 and 2011: the environmental reviews pile up

The State Department produced a draft environmental review in 2010 and a final one in August 2011. Under the National Environmental Policy Act, the permit decision counted as a federal action, so the agency had to study the effects of the project and of alternatives. In November 2011 the administration said it wanted more study of an alternative route around the Sand Hills region of Nebraska, which is an ecologically sensitive area over the Ogallala aquifer. That was a fair concern, and the company eventually agreed to reroute. But the decision date slid again, and the project was now past three years old with no answer.

January 2012: the first denial

Congress then did something unusual. In a December 2011 law that extended a payroll tax cut, it set a deadline for a decision on the pipeline. In January 2012 President Obama denied the permit, and the administration said the deadline did not leave enough time to review the new route. The denial did not say the pipeline was a bad idea. It said the clock ran out. TransCanada reapplied in May 2012.

2014: the southern leg opens

Here is a detail that gets lost. The southern portion of the system, from Cushing, Oklahoma, down to the Texas Gulf Coast, did not cross a border. It did not need a presidential permit. It was built and went into service in January 2014. The part that needed no president's signature was finished in a matter of years. The part that needed one went nowhere. If you want the whole lesson in one sentence, that is it.

February 2015: Congress passes it, the president vetoes it

Congress passed a bill approving the Keystone XL pipeline, and on February 24, 2015, President Obama vetoed it. The Senate did not have the votes to override, and the matter went back to the executive branch. Think about that for a second. The legislative branch said yes, the executive said no, and the permit that was the entire hinge of the project was a creature of the executive branch alone. Congress was the bridesmaid at a wedding it was never invited to.

November 6, 2015: the second denial

On November 6, 2015, the administration announced that it had decided the project was not in the national interest, and it rejected the permit. The Secretary of State at the time explained that the project would not serve the national interest in the way its supporters claimed, and the president, speaking the same day, made the climate case. The company had asked the State Department to pause its review days earlier, and the administration declined to wait. Seven years in, the application was dead.

January and March 2017: the reversal

A new president took the opposite view. In January 2017 President Trump signed a memorandum inviting TransCanada to resubmit its application and told the agencies to speed up their reviews. On March 24, 2017, the State Department issued the presidential permit. Supporters cheered, and they believed the story was over.

It was not over, because the permit was only one of several approvals. Which brings us to the courts.

2018 to 2020: the court fights over environmental review

In November 2018 a federal district judge in Montana vacated the State Department's decision to issue the permit, finding that the agency's environmental analysis had not been adequate. In March 2019 the president responded by signing a new permit himself, a move meant to put the decision beyond the reach of the same arguments, and the litigation continued. In 2020 the project hit a different snag when the same court ruled against the Army Corps of Engineers' use of a nationwide permit for water crossings, a ruling the Supreme Court in July 2020 narrowed so that it applied to Keystone XL but not to every other pipeline that relied on the permit. Construction at the border had begun in 2020. The legal victories on one side kept being met by new claims on the other, and the project kept slipping.

January 20, 2021: the revocation

On his first day in office, President Biden signed an executive order that revoked the March 2019 permit. It did not require a vote, a hearing or a debate. A permit that took more than a decade to obtain was ended by a signature in the first hours of an administration.

June 2021: the cancellation

In June 2021, TC Energy and the Alberta government announced that they were terminating the project. After thirteen years, counted from the 2008 application to the 2021 end, there was no pipeline. Thirteen years is long enough for a child born the week of the application to finish middle school. This is the country that put up the Empire State Building in a little over a year, and it could not get a permit for a pipe in the time it takes to raise a teenager.

Why a border pipeline needs a president and a domestic one does not

This is the part I find most revealing, because it exposes how arbitrary the system is.

Start with what Congress has actually written. For natural gas pipelines that cross a border, there is a statute, the Natural Gas Act, which gives a federal agency authority over import and export facilities. For oil pipelines that cross a border, Congress never passed such a law. What exists instead is an executive order tradition. A 1968 order, Executive Order 11423, delegated to the State Department the president's authority to approve border-crossing facilities, and a 2004 order, Executive Order 13337, updated the process. The authority rests on the president's power over foreign affairs, not on any act of Congress.

Now compare a domestic oil pipeline, one that runs from one state to another inside the country. No federal agency has the power to approve its route. The Federal Energy Regulatory Commission regulates the rates that interstate oil lines may charge, but it does not decide whether the line gets built or where it goes. Eminent domain for an oil pipeline comes from state law, so the company must satisfy each state it crosses. A domestic natural gas pipeline is the opposite, because the Natural Gas Act gives it a federal certificate and the power of eminent domain.

That does not mean a domestic oil line is free of federal paperwork. If it crosses federal land it needs a right-of-way, if it crosses rivers and wetlands it may need an Army Corps permit, and any of those federal decisions triggers environmental review under NEPA. I have a longer explanation of that law in NEPA Explained, the 1970 Law Where Paperwork Outlasts the Project. But the hinge decision, whether the project as a whole is in the national interest, does not exist for a domestic oil line. It exists only at the border, and there it belongs to one person.

Let me state this as plainly as I can, in three numbered points.

1. Congress never created a statutory approval process for oil pipelines crossing the border. It left the field to presidential permits.
2. A presidential permit can be granted, withheld or revoked by the president, and a president can undo what a predecessor did with the stroke of a pen, as 2015, 2017 and 2021 all showed.
3. A project that costs billions and takes years of construction cannot plan around a permit that can disappear every four or eight years.

The strongest case against my view

Here is the strongest version of the other side's argument. Supporters of the old process say a pipeline that crosses an international border touches foreign policy and treaty relationships, and the executive branch is the right place to decide that, because the Constitution gives the president the lead on dealing with other nations. They say a decision on that scale should get a thorough environmental review, since a leak on a major river or aquifer is not a small thing, and since the route crossed the Sand Hills and the Ogallala aquifer. They say landowners and tribes deserved a hearing. And they say the oil sands carry a high carbon cost, so the climate question is legitimate.

Those are serious points, and I will not insult you by waving them away. Here is my answer, in three parts.

First, the foreign-policy case does not fit the facts. Canada is our closest ally and our largest trading partner, and the pipeline would carry the output of an allied country's oil industry to American refineries. If the national interest was in doubt, it was in doubt only because the process was run by people who wanted it to be.

Second, the environmental case argues for a clear, time-limited review, not a thirteen-year one. The route was changed to avoid the Sand Hills. The State Department wrote several environmental reviews, and by its own findings the pipeline would not substantially change the amount of oil sands crude that gets produced, since the oil would move by other means, including rail, if the pipe was not there. Moving oil by rail instead is not obviously safer. Judge a policy by what actually happens, not by the sign it posts.

Third, and most important, a process that can say no at any moment for any reason, with no deadline and no vote, is not a review. It is a veto with extra steps. Every investor in the country can read that calendar, and what they learn from it is that building energy infrastructure in America is a gamble on who wins the next election.

What the saga teaches

I could tell you this was a plot by one party or the other. It was not, quite. Both parties' presidents used the same permit as a lever. The difference is that one party wanted pipelines and the other did not, and the system let each one win by simply being in charge on the right Tuesday. A system built like that does not protect anyone. It rewards whoever holds the pen.

What a real fix looks like

The fix is not mysterious. If Congress wants cross-border oil pipelines treated like natural gas lines, with defined standards, a firm deadline and a decision that survives a change of administration, it can write that law. A bill could set a time limit, say what factors count, and let a court review the decision on a record. Congress has the power. It lacks the will, because the current arrangement lets members vote for a pipeline in the Senate while praising an administration that blocks it at home.

For the reader who owns a farm or a ranch along such a route, the practical lesson is just as sharp. A pipeline project means a survey crew, an easement offer, and a negotiation with a company that has a lot of lawyers. Know your rights before the knock, and read A Survey Crew Is on Your Land, So Here Is Your Pipeline Playbook and Who Owns the Oil Under Your Farm, and Why America Answers Differently before you sign. For the wider picture of how America found the oil in the first place, look at The Texas Wildcatter Who Spent Twenty Years Cracking the Shale Code, and for the claims made about the drilling itself, Seven Fracking Horror Stories, Tested Against the Actual Record is a fair test.

And when a court does stop a project over an environmental review, as happened in 2018, remember what the Supreme Court had to say about the reach of the Clean Air Act in The Court Did Not Ban Clean Air. It Told EPA to Ask Congress First.. The pattern is the same: agencies and judges fill the space that Congress leaves empty.

The bottom line

• Keystone XL was applied for in 2008 and cancelled in 2021, thirteen years, and was never defeated in a straight vote. The kill switch was a permit.
• A border-crossing oil line needs a presidential permit because Congress never wrote a statute for it, while a domestic oil line needs no federal siting approval at all. That gap, not the oil, was the heart of the fight.
• If you want certainty for energy projects, ask your senator and representative to write a law with a firm deadline and a stable standard for border oil pipelines, and stop leaving the decision to executive orders that flip every time the White House does.
• If a pipeline company comes to your land, get your own lawyer, read your easement terms carefully and do not sign anything under time pressure.