Canadian flag.jpg

A Canadian flag.

(Creative Commons, Sam Howzit)

The newly Republican-dominated Congress has wasted no time resurrecting the Keystone XL pipeline, a politically controversial move that would connect Canadian crude oil to existing pipelines in the United States. Advocates of the pipeline argue that it will create jobs and energy independence; opponents question the economic benefits and fear the environmental risk. Add in a second-term president, a divided government, and an impending veto, and Keystone has all the makings of good political drama.

While the politics of the Keystone XL pipeline have taken center stage, almost no attention has been paid to the potential constitutional infirmity of the legislation. The bill passed by Congress is known as "special legislation" -- that is, legislation that singles out an individual person or company for special treatment that is not available to the rest of the population. The bill is special legislation because it singles out a particular company, TransCanada Keystone Pipeline L.P., and exempts it from laws that apply to all other companies.

The bill provides that TransCanada's application to build the pipeline is deemed "to fully satisfy" the requirements of "any ... provision of law that requires Federal agency consultation or review," including the Endangered Species Act and the National Environmental Policy Act.

In other words, the Keystone legislation creates a special benefit for a particular company by permitting it to construct the pipeline, simply by submitting an application, without having to comply with environmental and other applicable laws that would apply to any other person or company that applies for the same benefit.

When it enacts special legislation, like the Keystone pipeline measure, Congress impinges on the constitutional principle of separation of powers by assuming the power to interpret and apply the law in derogation of the responsibilities of the executive branch. Normally, when a company applies for a license, administrative agencies must review the pertinent facts and the applicable law and decide whether the company is entitled to the license. The agency decisions are reviewable by a court to ensure that the agencies complied with the law.

The Keystone XL pipeline bill upsets this balance by providing that TransCanada may construct and operate a pipeline without regard for this generally applicable administrative process. The Keystone XL bill usurps the executive's job by deeming, without any factual predicate, that TransCanada's application complies with federal laws and regulations.

Proponents of the bill argue that the administrative agencies have unreasonably -- even unlawfully -- delayed the decision about Keystone XL. That may well be the case; nevertheless, there are available remedies for this delay that do not impinge on the principle of separation of powers. For instance, TransCanada is entitled to challenge, in federal court, the delay or ultimate denial of its application. Moreover, Congress always can set national energy policy by changing the requirements for applicants going forward; for example, it may relax the substantive standards for approval or impose a firm deadline for the administration to make a decision.

But, the Keystone legislation does not set national energy policy; instead, it departs from previously established legal standards by granting approval without any factual findings. By so doing, this piece of special legislation encroaches on the prerogatives of a coequal branch of government.

Although advocates of the pipeline may discount the separation-of-powers concerns that are raised by the Keystone legislation, they do so at their peril. A healthy respect for the prerogatives of the different branches of government helps maintain a properly functioning government.

Congress' willingness to pass special legislation is both a symptom of governmental dysfunction and cause of concern for the future. The president has threatened to veto the Keystone legislation, which will send the bill back to Congress for reconsideration. As Congress considers whether to override the president's veto in the coming days, it should consider carefully not only whether the legislation is good policy, but also whether it violates the important constitutional principle of separation of powers.

Evan C. Zoldan is an assistant professor of law at the University of Toledo College of Law.