Professor David Driesen teaches at the Syracuse College of Law and at SUNY ESF.  He specializes in environmental law, international environmental law, and constitutional law.  He edited and contributed two chapters to the seminal Economic Thought and U.S. Climate Change Policy, published by MIT Press in 2009.  

This blog post originally appeared on March 7th, 2014, at the Center for Progressive Reform’s blog.  The original post can be found here.  It is reprinted here with the permission of both the author and the original host.

The media has reported, erroneously, that the Obama Administration’s environmental impact statement concluded that the Keystone Pipeline would have no impact on global climate disruption. The facts are a bit more complicated, and much more interesting. Basically, the final EIS concedes that Keystone would increase greenhouse gas emissions, but it uses a silent political judgment masquerading as scientific analysis to minimize its estimate of the increase’s magnitude. Accordingly, President Obama has ample grounds to reject the Keystone Pipeline application.

Let me explain. The EIS concedes that the construction project creating the Keystone Pipeline would produce .24 metric tons of carbon dioxide equivalents (MMTCO₂E) per year until TransCanada completes the pipeline. It also admits that operation of the pipeline after construction would produce 1.44 MMTCO₂E per year, about the emissions of 300,000 passenger vehicles.

Although this is a lot of emissions, the really huge emissions come not from the construction and operation of the pipeline, but from the extraction and use of tar sands oil. The EIS concludes that the tar sands oil transported through the pipeline would produce a whopping 147 to 168 MMTCO₂E per year in lifecycle emissions, approximating the annual emissions of more than 30 million cars. The huge emissions associated with tar sands oil has led James Hansen, a leading climate scientist, to conclude that exploiting tar sands oil means “game over” for climate change.

Now, here is where it gets interesting. In spite of the some 500 tons of annual emissions that the EIS concedes comes from the tar sands oil that the Keystone Pipeline would carry, the EIS concludes that this project would produce only 0 to 27.4 MMTCO₂E annually. Now the high end of that 0 to 27 estimate is a pretty high number. Indeed, at the high end, the rejection implies a savings of emissions comparable to that of proposed new standards for emissions from trucks. But even this “high end” estimate reduces the estimate of emissions tar sands oil associated with the Keystone by more than 80% from what it might be.

It’s not too surprising that the media has equated this minimization with denying emissions altogether, even though the combined high end estimated emissions from construction, operation, and added tar sands production exceed those of 6 million vehicles. Six million is a lot of cars, but not nearly as many as 30 million. Nor is it too surprising that the media has attributed this disappearing act to corruption, since the contractor that prepared the EIS, Environmental Resources Management (ERM), had Keystone as a client in the past. But there is a logic to this that has escaped media attention.

The logic is this: stopping Keystone’s construction would not necessarily stop the production of all of the oil the pipeline would carry. It is possible that some or even all of that oil would be produced anyway and shipped via other pipelines or rail. ERM, corrupt or not, estimates that a very large percentage would be produced anyway, perhaps all of it. This assumption does not change the concession about emissions from operation or construction, but it radically reduces the estimate of the pipeline’s impact on emissions from tar sands oil exploitation.

Several analysts and financial institutions disagree with ERM, finding that failing to build Keystone would significantly influence tar sands production. And ERM concedes that if no new pipelines are built and prices of oil range from $65 to $75 a barrel, denying this permit would have a big impact on production.

But all of these findings depend on economic analysis, whilst tar sands oil’s future depends, in large, part on political decisionmaking. There was some tacit acknowledgment of this political dimension in the Supplemental EIS, which considered, for the first time in this process, the possibility that citizens concerned about tar sands oil’s impact would succeed in blocking construction of new pipelines to carry tar sands oil altogether. But citizens’ goals go further than that. They want to shut down tar sands production. They argue vehemently against expansion of rail capacity to carry tar sands oil, since rail oil transport poses safety risks greater than those stemming from pipelines. An explosion last summer destroyed the town of Lac Mégantic, Quebec, killing 47 people. And, if it comes to that, environmentalists will oppose shipping tar sands oil by existing pipelines, although that’s a harder issue to win on. In short, it’s possible that stopping Keystone XL would ultimately eliminate the 500 tons of emissions associated with its capacity and add political momentum to stopping production of tar sands oil altogether.

So, what does all of this mean for President Obama? President Obama pledged to disapprove Keystone if it substantially increased greenhouse gas emissions. Even without entering the thicket of considering the pipeline’s impacts on tar sands production, Obama could disapprove the project simply based on the narrow technical ground that emissions associated with the pipeline’s construction and operation are significant. But he should also recognize that the view that construction of a new pipeline would have no impact on production at all seems extreme, and consider that even ERM’s projections suggest the possibility of significant remaining emissions from production.

But Obama is a President, not just an administrator. And he needs to consider this decision in the broader context of how he wants to contribute to shaping the arc of history. That is, he needs to consider this decision in the context of the broader political movement to stop tar sands production altogether in order to reverse the trajectory of ever increasing fossil fuel use and the dire consequences associated with that. Therefore, he should disapprove the Keystone pipeline and do everything in his power to shut down alternatives to it. Even if his leverage over these additional decisions is limited, his disapproval decision gives activists some time to work on efforts to shut down alternative transportation routes and ultimately production.

Nobody, certainly not the technocrats who prepared the EIS, knows whether the Keystone denial would only reduce the emissions that spell game over for climate disruption or constitute the first step in ending them altogether. But Obama needs to be one of the forces moving us toward shutting down a project that would have devastating consequences for America, the project of tar sands production.