The Grass Is Always Greener: Keystone XL, Transboundary Harms, and Guidelines for Cooperative Environmental-Impact Assessment

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ABSTRACT

While general understanding of environmental harms has become more geographically sophisticated, environmental-impact assessment (EIA) law has lagged behind. Although nations now understand complex environmental processes and relationships that extend well beyond their borders, EIA law remains trapped in a domestic structure that is ill-prepared to assess harms outside its jurisdiction. By looking at the U.S. environmental assessment of the Keystone XL pipeline, this Note recasts the problem of transboundary environmental harms in EIA using recent, remarkable events. Key assumptions made in the Keystone XL assessment illustrate that the typical domestic structure of EIA law does not allow adequate assessment of transboundary harms and, thus, undermines the entire purpose of the EIA process. After identifying this problem, this Note suggests a number of guidelines for developing binding, cooperative environmental-assessment agreements between states that would bridge that gap and bring transboundary harms into domestic EIA law.

TABLE OF CONTENTS

I.   INTRODUCTION
II.  THE DYNAMICS OF ENVIRONMENTAL-IMPACT
     ASSESSMENT (EIA)
     A. From U.S. Law to International Law
     B. From Substance to Procedure
     C. International Recognition of the
        Transboundary Problem
III. THE KEYSTONE XL PROBLEM
     A. Explanation of the Keystone XL Process
        1. Understanding the Procedure
        2. The Environmental Protection Agency's
           Transboundary Concerns
     B. The Department of State's Three
        Transboundary Assumptions
        1. The Oil-Demand Assumption
        2. The Extraction-Efficiency Assumption
        3. The Land-Use Governance Assumption
     C. Differentiating Structural Failures from
        Bad Faith Agency Actors
IV.  ELEMENTS OF COOPERATIVE INTERNATIONAL EIA
     A. Scope of the Agreement
     B. Structure of the Agreement
     C. Goals of the Agreement
     D. Content of the Cooperative Assessment
     E. Benefits of Adopting Cooperative EIA
        Agreements
V.   CONCLUSION

I. INTRODUCTION

When Professor Robert Socolow was describing major barriers to a sustainable energy future in the United States, he suggested that the country recognize a planetary identity. (1) Ever the provocative thinker, Professor Socolow assigned a daunting name to a relatively simple concept: that the United States should recognize the costs that its energy decisions impose outside its borders. (2) According to Professor Socolow, internalizing the international cost, particularly the environmental cost, of extracting, shipping, producing, and maintaining the immense energy resources necessary to power the United States is essential to realizing the true cost of the nation's energy decisions and to moving towards a sustainable future. (3) This Note is about how to internalize the transboundary costs of a country's energy decisions.

Internalizing the environmental cost of policy decisions has long been the mandate of environmental impact assessments (EIAs). (4) But nearly all EIA law is domestic law that is fundamentally limited by its jurisdiction's borders; at best the law is unprepared to address environmental costs on the other side of the border, and at worst it is incapable of addressing these costs. (5) International law has also been slow to fill the gap in EIA law between domestic jurisdictions. An international convention on the subject received only limited acceptances and achieved limited success. (7) And when EIA law cannot account for transboundary harms, environmental assessments do not reflect the true environmental cost of the decisions and fail to fully inform the decision maker. As such, the problem of transboundary harms remains a well-recognized and persistent problem in EIA law. (8)

This Note is the first to illustrate the transboundary problem using the U.S environmental assessment of the Presidential Permit for the Keystone XL pipeline, a decision that would permit the construction of an oil pipeline across Alberta, through the Midwest United States, and down to the Gulf Coast of Texas to increase the production of Canadian oil sands crude. …