Congress Can Decide on Cross-Border Pipelines

First appeared on Yahoo! News
The Congress has the constitutional right to legislate permits for cross-border oil pipelines like TransCanada's Keystone XL, according to a new legal analysis released late on Friday.

The study by the nonpartisan Congressional Research Service could give a boost to Republicans drafting legislation to overturn a decision this week by President Barack Obama to put the $7 billion Alberta-to-Texas project on ice. A West Hollywood Environmental Lawyer has been watching the case.

Historically, U.S. presidents have made executive decisions on pipelines that cross borders. But Congress had the power all along to weigh in on the permits, said the study, done by four legislative attorneys with the CRS.

"If Congress chose to assert its authority in the area of border-crossing facilities, this would likely be considered within its Constitutionally enumerated authority to regulate foreign commerce," the study said.

Republicans in Congress have elevated the Canadian pipeline and the construction jobs it would create into an election-year issue, accusing Obama of caving in to environmental groups. They pushed to include a deadline for a permit approval in a payroll tax cut bill that Obama signed into law in December.

But this week, Obama and the State Department said an environmental review of a portion of the proposed pipeline could not be rushed, closing the door on a quick start to the project.

BACK IN THE DAY

The CRS study examined the history of decisions by presidents on thorny issues involving approval of cross-border projects such as bridges and power lines stretching back to 1869, when President Ulysses Grant ruled on a French transatlantic cable used to send telegrams.

The report also looked at more recent court cases involving oil and gas pipelines crossing the Canada-U.S. border.

While the U.S. president has authority over foreign affairs, the U.S. Constitution gives Congress the power to regulate foreign commerce, the report explains.

Until now, presidents have issued permits by executive order for pipelines, and Congress has stayed out of the matter. A Salt Lake City Environmental Lawyer is curious about the change.

The report did not comment on specific proposals floated by Republicans in the Senate and House of Representatives, but said that "legislation altering the pipeline border crossing approval process appears likely to be a legitimate exercise of Congress's constitutional authority to regulate foreign commerce,"
Legislation on cross-border "facilities" like pipelines "is unlikely to raise significant constitutional questions, despite the fact that such permits have traditional been handled by the executive branch alone," it said.

REPORT 'HELPS THE CONVERSATION'

Any "plan B" drafted by Republicans would still have to clear a very big political hurdle. While legislation could easily pass in the Republican-controlled House, the Democratic-led Senate is another matter.

"Regardless of whether the Republican legislation seeking to rubber-stamp Keystone XL would pass constitional muster, it would still need to pass the Senate and be signed by the president, and that is not going to happen," a Senate Democratic aide said on Friday.

But the CRS report "greatly helps the conversation" among Senate and House Republicans strategizing about how to keep the project alive, said Ryan Bernstein, an energy adviser to Senator John Hoeven of North Dakota, whose office requested the study.

"I think this confirms what we've been saying all along - Congress has the authority to approve the Keystone pipeline," said Bernstein, who is helping Hoeven draft legislation that would see Congress approve the project. A St. Louis Environmental Lawyer may agree.

Earlier on Friday, Republicans in the House of Representatives said they were considering using upcoming payroll tax cut or highway construction bills to force quick approval of the pipeline.

Representative Lee Terry, whose home state of Nebraska would host part of the pipeline, has drafted legislation to shift the Keystone decision-making process from the Obama administration to the independent Federal Energy Regulatory Commission, which regulates pipelines in the United States.

The House Energy and Commerce Committee will hold a hearing on Wednesday about Terry's bill and other Keystone measures.

Lawyer for disguised Man on Flight wants Media Ban

Associated Press

The lawyer for a Chinese asylum seeker who boarded a flight from Hong Kong to Canada disguised as an elderly white man requested Monday that the media be banned from covering his client's immigration hearings to protect his identity.

Lawyer Dan McLeod told Canada's Immigration and Refugee Board that the man from mainland China is very concerned that information disclosed at the hearing might become available to Chinese authorities.

"This is an extremely unusual case in that there has been an extremely serious and potentially dangerous leak about a refugee claimant by an unknown Canada Border Services official," McLeod told the adjudicator, referring to an intelligence alert about the man that was leaked to the media last week.

The man's name has not been released and McLeod said it should remain that way because disclosure could result in persecution or retribution from China.

Authorities have not suggested any terrorist link to the man who boarded the Air Canada flight in Hong Kong on Oct. 29 wearing a remarkably detailed silicone mask disguising him as an elderly white man. The internal intelligence alert from the Canadian Border Services Agency shows before-and-after photos of the man with and without the mask, saying he removed the disguise in a washroom mid-flight.

A Hong Kong official told the AP that the imposter is a mainland Chinese citizen who was transiting through Hong Kong. The official declined to be named because she is not authorized to release the information.

The official said the Chinese man likely escaped detection because he used his own travel documents and a genuine boarding pass when clearing immigration checkpoints in Hong Kong, and then swapped travel papers with a collaborator in the transit lounge just before boarding the flight to Vancouver, British Columbia.

A Canadian official, who provided the Border Services alert to The Associated Press, said a U.S. passport was involved.

Jim Murray, one of the top lawyers for Canada Border Services Agency, said the refugee claimant identified himself as a member of an organization in China and there is concern for the safety of some of the group's members. He did not specify the group involved.

Murray said the man has given "indications of what has happened to people in China who have been members of that organization."

McLeod argued the hearings should be held in the absence of the media, specifically singling out three Chinese media outlets -- Sing Tao, Ming Pao and World Journal. He expressed concern that even if the court barred publication of his client's name, Chinese media might reveal the information to authorities.

"Many Chinese media have relinquished their professional ethics," McLeod said.

Reporters from the newspapers named denied their news outlets were controlled by Beijing.

McLeod cited Canadian human rights lawyer David Matas as saying that Sing Tao had been sued by members of Falun Gong, a meditation sect that has been banned in China where its members have been labeled as terrorists by the government and risk arrest.

"Sing Tao had published an article saying that Falun Gong had advocated the destruction of the world and identified three Falun Gong practitioners," said McLeod. When reporters asked him outside the hearing room if his client was a member of Falun Gong, he said he couldn't discuss details of the case.