The Obama administration announced today they will reject the
permit on the controversial 1,700-mile oil sands pipeline project,
Keystone XL, because the US Congress forced an immediate decision
before the proposed route revision through Nebraska could be
studied. Transcanada will reapply, shifting the final
decision until after the fall election, just as President Obama
"The Department of State recommended to President Obama
that the presidential permit for the proposed Keystone XL pipeline
be denied and that at this time the TransCanada Keystone XL
pipeline be determined to not serve the national interest. The
President agreed with the Department's recommendation. This
recommendation was predicated on the fact that the Temporary
Payroll Tax Cut Continuation Act that was passed in December does
not provide sufficient time to obtain the information that we think
is necessary to assess whether the project, in its current state,
is in the national interest...."
When Transcanada reapplies, how much of the review process will
have to be repeated? The State Department said, not all of it, but
they wouldn't commit themselves:
"if TransCanada comes in with a new application, it will
trigger a new review process, a completely new review process. We
cannot state that anything would be expedited .... It would just
have to go through all of the requirements that are needed for this
kind of application review....
However, I could mention that we do have guidelines that would
allow us to use information .... from the process we've been
through, but we would also have to look at this as a completely new
application, and that's how it would be treated....The body of
information that was out there would inform a new application, but
there are certain specific guidelines that have to be used. And
beyond that, I can't comment, because it would be a completely
new application and a new review process...
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The Alberta Court of Appeal's decision in Bokenfohr v Pembina Pipeline Corporation, 2016 ABCA 382 provides an important reflection on admissibility of evidence in the permission stage of an appeal in the oil and gas context.
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