"If this were any other federal agency attempting to do this, there would be no question it would be illegal,” said Pat Parenteau, a Vermont Law School professor who closely follows oil pipeline issues. “It remains to be seen whether the State Department can get away with this. But it’s an obvious way to piecemeal the project and avoid considering the true impacts of the project.”
Murphy, the National Wildlife Federation lawyer, said Enbridge’s plan would make the environmental review “essentially meaningless.” He’s particularly concerned about how it will affect the climate analysis. Enbridge’s original application asked for a permitted capacity increase from 450,000 to 800,000 barrels per day. If the agency uses 570,000 barrels per day as the baseline for assessing the proposed changes, it would end up reviewing a smaller emissions increase that masks the project’s true carbon footprint, he said.
Given that President Obama has made climate impacts a key test of whether he will approve the Keystone XL, “it’s disappointing that the State Department continues to not take seriously the climate policy implications behind these pipelines,” Murphy said.