[House Report 112-140]
[From the U.S. Government Publishing Office]
112th Congress Rept. 112-140
HOUSE OF REPRESENTATIVES
1st Session Part 1
======================================================================
NORTH AMERICAN-MADE ENERGY SECURITY ACT
_______
July 8, 2011.--Ordered to be printed
_______
Mr. Upton, from the Committee on Energy and Commerce,
submitted the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 1938]
[Including cost estimate of the Congressional Budget Office]
The Committee on Energy and Commerce, to whom was referred
the bill (H.R. 1938) to direct the President to expedite the
consideration and approval of the construction and operation of
the Keystone XL oil pipeline, and for other purposes, having
considered the same, report favorably thereon with an amendment
and recommend that the bill as amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 3
Background and Need for Legislation.............................. 3
Hearings......................................................... 8
Committee Consideration.......................................... 8
Committee Votes.................................................. 9
Committee Oversight Findings..................................... 13
Statement of General Performance, Goals and Objectives........... 13
New Budget Authority, Entitlement Authority, and Tax Expenditures 13
Earmark.......................................................... 13
Committee Cost Estimate.......................................... 13
Congressional Budget Office Estimate............................. 13
Federal Mandates Statement....................................... 14
Advisory Committee Statement..................................... 14
Applicability to Legislative Branch.............................. 14
Section-by-Section Analysis of Legislation....................... 14
Changes in Existing Law Made by the Bill, as Reported............ 15
Dissenting Views................................................. 16
AMENDMENT
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``North American-Made Energy Security
Act''.
SEC. 2. FINDINGS.
Congress finds and declares the following:
(1) The United States currently imports more than half of the
oil it consumes, often from countries hostile to United States
interests or with political and economic instability that
compromises supply security.
(2) While a significant portion of imports are derived from
allies such as Canada and Mexico, the United States remains
vulnerable to substantial supply disruptions created by
geopolitical tumult in major producing nations.
(3) Strong increases in oil consumption in the developing
world outpace growth in conventional oil supplies, bringing
tight market conditions and higher oil prices in periods of
global economic expansion or when supplies are threatened.
(4) The development and delivery of oil and gas from Canada
to the United States is in the national interest of the United
States in order to secure oil supplies to fill needs that are
projected to otherwise be filled by increases in other foreign
supplies, notably from the Middle East.
(5) Continued development of North American energy resources,
including Canadian oil, increases domestic refiners' access to
stable and reliable sources of crude and improves certainty of
fuel supply for the Department of Defense, the largest consumer
of petroleum in the United States.
(6) Canada and the United States have the world's largest
two-way trading relationship. Therefore, for every United
States dollar spent on products from Canada, including oil, 90
cents is returned to the United States economy. When the same
metrics are applied to trading relationships with some other
major sources of United States crude oil imports, returns are
much lower.
(7) The principal choice for Canadian oil exporters is
between moving increasing crude oil volumes to the United
States or Asia, led by China. Increased Canadian oil exports to
China will result in increased United States crude oil imports
from other foreign sources, especially the Middle East.
(8) Increased Canadian crude oil imports into the United
States correspondingly reduce the scale of ``wealth transfers''
to other more distant foreign sources resulting from the
greater cost of importing crude oil from those sources.
(9) Not only are United States companies major investors in
Canadian oil sands, but many United States businesses
throughout the country benefit from supplying goods and
services required for ongoing Canadian oil sands operations and
expansion.
(10) There has been more than 2 years of consideration and a
coordinated review by more than a dozen Federal agencies of the
technical aspects and of the environmental, social, and
economic impacts of the proposed pipeline project known as the
Keystone XL from Hardisty, Alberta, to Steele City, Nebraska,
and then on to the United States Gulf Coast through Cushing,
Oklahoma.
(11) Keystone XL represents a high capacity pipeline supply
option that could meet early as well as long-term market demand
for crude oil to United States refineries, and could also
potentially bring over 100,000 barrels per day of United States
Bakken crudes to market.
(12) Completion of the Keystone XL pipeline would increase
total Keystone pipeline capacity by 700,000 barrels per day to
1,290,000 barrels per day.
(13) The Keystone XL pipeline would provide short-term and
long-term employment opportunities and related labor income
benefits, as well as government revenues associated with sales
and payroll taxes.
(14) The earliest possible construction of the Keystone XL
pipeline will make the extensive proven and potential reserves
of Canadian oil available for United States use and increase
United States jobs and will therefore serve the national
interest.
(15) Analysis using the Environmental Protection Agency
models shows that the Keystone XL pipeline will result in no
significant change in total United States or global greenhouse
gas emissions.
(16) The Keystone XL pipeline would be state-of-the-art and
have a degree of safety higher than any other typically
constructed domestic oil pipeline system.
(17) Because of the extensive governmental studies already
made with respect to the Keystone XL project and the national
interest in early delivery of Canadian oil to United States
markets, a decision with respect to a Presidential Permit for
the Keystone XL pipeline should be promptly issued without
further administrative delay or impediment.
SEC. 3. EXPEDITED APPROVAL PROCESS.
(a) In General.--The President, acting through the Secretary of
Energy, shall coordinate with each Federal agency responsible for
coordinating or considering an aspect of the President's National
Interest Determination and Presidential Permit decision regarding
construction and operation of the Keystone XL pipeline, to ensure that
all necessary actions with respect to such decision are taken on an
expedited schedule.
(b) Agency Cooperation With Secretary of Energy.--Each Federal agency
described in subsection (a) shall comply with any deadline established
by the Secretary of Energy pursuant to subsection (a).
(c) Final Order.--Not later than 30 days after the issuance of the
final environmental impact statement, the President shall issue a final
order granting or denying the Presidential Permit for the Keystone XL
pipeline, but in no event shall such decision be made later than
November 1, 2011.
(d) Environmental Review.--No action by the Secretary of Energy
pursuant to this section shall affect any duty or responsibility to
comply with any requirement to conduct environmental review.
PURPOSE AND SUMMARY
H.R. 1938, the ``North American-Made Energy Security Act of
2011'', was introduced by Rep. Lee Terry (together with Reps.
Gardner, Green, McKinley, McMorris Rodgers, Murphy, Myrick,
Pitts, Ross, Scalise, Sullivan, Upton, Walden, and Whitfield)
on May 23, 2011. The legislation requires the President to
coordinate with the relevant federal agencies and reach a final
decision granting or denying the Presidential Permit for the
proposed Keystone XL pipeline project by no later than November
1, 2011.
BACKGROUND AND NEED FOR LEGISLATION
A Canadian pipeline company, TransCanada, has long sought
to increase the capacity of its Keystone pipeline system in
order to bring more Canadian crude oil to American refineries.
A permit application for its proposed expansion project,
Keystone XL, was submitted to the State Department in September
of 2008.
In the 33 months since--an unusually long period for such
permits--the nation has faced high gasoline prices as well as
soaring unemployment rates. Approval of Keystone XL would help
address both of these concerns, but the Obama administration
has yet to make a final decision about whether to allow the
project to move ahead. Most recently, the Environmental
Protection Agency raised several objections that may further
delay a final decision.
Despite the economic downturn, the nation's demand for
petroleum and motor fuels remains strong and is projected by
the Energy Information Administration to grow in the years
ahead. However, domestic oil production is limited by the
federal government. Many promising domestic onshore and
offshore areas are explicitly off-limits to energy leasing, and
even those that are not may be subject to permitting delays or
regulatory constraints that effectively make them so. Oil
imports are needed to fill the gap between consumption and
domestic production.
Unfortunately, many nations that serve as a source of these
imports continue to display substantial instability as well as
anti-American hostility. This raises serious concerns about the
risks--both economic and otherwise--of continued reliance upon
such nations.
The role of Canadian oil is critical to America's energy
future. In addition to being a very stable country, as well as
a strong ally and our largest trading partner, Canada is
America's single largest source of oil imports. Further,
Canadian oil production is on the rise, especially oil sands
production from the province of Alberta. The untapped potential
is vast--an estimated 175 billions barrels of recoverable oil
places Alberta second only to Saudi Arabia in proven reserves.
Canada currently produces more than enough oil for its own
needs and sends most of the rest South, via pipelines, to
American refineries.
Thus, Alberta oil sands production represents a nearly-
ideal source of supply for the American market that will likely
increase in the years ahead. However, the existing pipeline
system between the two nations is unable to keep up with the
growing volumes, necessitating the need for a major expansion
project such as Keystone XL.
Once completed, the Keystone XL project would add another
700,000 barrels per day to the capacity of 591,000 barrels per
day in the existing pipeline, more than enough to make a
difference in the price at the pump. It can do so for the long
term, as output from Alberta is expected to provide this
additional oil for decades to come. In addition to the energy
benefits, the construction of Keystone XL will create tens of
thousands of American jobs.
H.R. 1938, the North American-Made Energy Security Act of
2011, does not change the extensive environmental reviews and
other requirements necessary for Keystone XL to obtain its
federal permit. The bill is simply an acknowledgement that this
project has already been thoroughly studied and that all
legitimate concerns have been raised and addressed, and sets a
date certain--November 1, 2011--by which the Obama
administration must reach a final decision.
Keystone XL permitting timeline
Ordinarily, the U.S. government does not have permit
authority for oil pipelines, even interstate pipelines.
Generally, the primary siting authority for oil pipelines would
be established under applicable state law. However, the
construction, connection, operation and maintenance of a
pipeline that connects the United States with a foreign country
has historically required executive permission conveyed through
a Presidential Permit. Executive Order 13337 delegates to the
Secretary of State the President's authority to receive
applications for Presidential Permits.
TransCanada submitted an application for a Presidential
Permit with the U.S. Department of State (DOS) in September
2008. In November of 2008, TransCanada submitted a
comprehensive environmental report to DOS, thereby initiating
the National Environmental Policy Act review process.
On January 28, 2009, DOS issued its Notice of Intent to
Prepare an Environmental Impact Statement, which commenced a
public scoping period to identify significant environmental
issues. Among other things, this included public meetings held
in more than twenty impacted communities. On April 16th, DOS
issued a Draft Environmental Impact Statement (DEIS) and
extended the public comment period to 77 days.
On July 2, 2010, DOS closed the comment period on the DEIS.
The Environmental Protection Agency (EPA) determined that the
DEIS was inadequate, requiring DOS to perform additional review
in a Supplemental Draft Environmental Impact Statement (SDEIS).
The SDEIS was issued on April 29, 2011 and initiated an
additional 45-day comment period. DOS ultimately concluded that
``the information in this SDEIS does not alter the conclusions
reached in the [DEIS] regarding the need for and the potential
impacts of the proposed Project.''
On June 6, 2011, EPA again informed DOS that the SDEIS
contains insufficient information and requested additional
analysis be performed for the Final Environmental Impact
Statement (FEIS).
Assuming no further delays--an optimistic assumption--DOS
should release its FEIS in August, likely initiating an
additional 30-day public comment period. In addition, the
comment period will begin on the National Interest
Determination to solicit views from the Secretaries of Defense,
Commerce, Transportation, Energy, and Homeland Security, as
well as the Attorney General, Administrator of the EPA, and
others that the Secretary of State deems appropriate.
The ongoing permitting process for Keystone XL has thus far
taken 33 months, and has included multiple opportunities for
public input. By comparison, the original Keystone pipeline
project was permitted in less than 24 months. H.R. 1938 would
set November 1, 2011 as the date by which the administration
must act, more than three years after the application was
originally submitted.
Throughout the approval process, any and all environmental
and safety concerns have been addressed. The SDEIS concluded
that: ``[a]s a result of incorporation of the current PHMSA
regulations, current industry standards, and the set of 57
Project-specific Special Conditions developed by PHMSA and
agreed to by Keystone, the proposed Project would have a degree
of safety over any other typically constructed domestic oil
pipeline system under current code and a degree of safety along
the entire length of the pipeline system similar to that which
is required in [High Consequence Areas] as defined under [PHMSA
regulations].''
Moreover, claims of environmental damage attributable to
production of the oil sands in Alberta--including assertions of
substantially higher greenhouse gas emissions relative to
conventional oil--are particularly misplaced in the context of
the U.S. approval process for Keystone XL. For example, the on-
site impacts and emissions are the responsibility of the
Alberta government, and there is no need for a redundant
consideration of these matters. At a May 23, 2011 hearing
before the Subcommittee on Energy and Power, Dan McFayden,
Chairman of the Energy Resources Conservation Board of Alberta,
testified as to the rigor and thoroughness of its approval
process and the many safeguards that have been put in place.
``Every oil sands project is subjected to regulatory scrutiny
throughout its life cycle, from authorization and operational
compliance to end-of-life closure,'' he said.
More importantly, the Canadian and Alberta provincial
governments have made clear that they will allow oil sands
production to increase regardless of Keystone XL's fate. If the
President fails to approve Keystone XL, the same amount of
Canadian oil will very likely be produced and transported west
via pipelines to Pacific ports for export to China and other
Asian nations. Thus, approval or disapproval of the project
ultimately makes no difference regarding the environmental
impacts and emissions associated with the production of
Albertan oil sands.
These conclusions are further supported by Keystone XL
Assessment issued by the U.S. Department of Energy (DOE) Office
of Policy and International Affairs (the ``DOE KXL Report'').
In June 2010, Ensys Energy was contracted by DOE to conduct an
evaluation of the impacts on United States and global refining,
trade and oil markets of Keystone XL project to bring
additional Canadian crudes into the United States. The DOE KXL
Report is included as part of the SDEIS. The study includes an
assessment of global life-cycle GHG impacts of scenarios
evaluated in this study. That study concluded ``no significant
change . . . in global refinery CO2 and total life-
cycle GHG emissions whether KXL is built or not.'' Changes in
lifecycle emissions were calculated with models and methodology
used in deriving indirect impacts of petroleum consumption for
the EPA's renewable fuels standard program.
The energy benefits of Keystone XL
Once completed, the Keystone XL project would add another
700,000 barrels per day of pipeline capacity to the system's
existing 591,000 barrels per day, bringing this oil to
refineries in the Midwest and Gulf Coast. Subsequent upgrades
could boost additional throughput to over 800,000 barrels per
day. According to the DOE KXL Report, Keystone XL holds ``the
potential to very substantially reduce U.S. dependency on non-
Canadian foreign oil, including from the Middle East.''
Rapidly-growing production from Alberta's oil sands is the
reason the pipeline expansion is needed. America currently
imports approximately 2 million barrels per day (mbd) from
Canada, of which 1.1 mbd is from oil sands. However, oil sands
production is relatively new and its potential has only begun
to be realized. According to testimony at the May 23 hearing
from James Burkhard, Managing Director of IHS CERA, ``the oil
sands make Canada one of the very few countries in the world
that could substantially increase oil production for the next
several decades.'' He added that ``over the past decade
production growth picked up rapidly and supply more than
doubled to about 1.5 mbd in 2010. This is greater than the 1.2
mbd that Libya exported to the global market in 2010, before
the civil war.''
Oil sands production is expected to continue its rapid
growth. Murray Smith, former member of the Legislative Assembly
of Alberta and Minister of Energy, testified that ``Alberta's
production is expected to increase to over 3 million barrels a
day by the end of the decade.'' In other words, Canada has more
than enough oil to dramatically increase exports to the United
States and maintain them for the foreseeable future. The only
limiting factor is pipeline capacity.
By way of comparison, President Obama recently authorized
the release of 30 million barrels of oil from the Strategic
Petroleum Reserve (SPR) for a period of 30 days--an additional
million barrels per day. Keystone XL has the potential to add
70 percent as much oil per day as this recent SPR release, but
with two critical differences. First, the SPR is not a source
of newly-produced oil but rather a stockpile previously set
aside for emergency use, while the oil coming from Canada via
Keystone XL would represent a genuine addition to the nation's
supply. More importantly, while the SPR stockpile is available
for a short time span and then would need to be replenished,
Keystone XL could be supplying oil every day for several
decades--truly part of the long-term solution to the nation's
demand for all of its petroleum needs.
The economic benefits of Keystone XL
In addition to the benefits of a secure supply of
additional oil from a strong ally, approval of Keystone XL is
also projected to create a substantial number of jobs. Stephen
Kelly, Assistant General President of the United Association of
Plumbers and Pipe Fitters, testified in favor of H.R. 1938 at
the May 23rd hearing. According to estimates cited by Kelly,
the project is ``expected to create approximately 13,000 high-
quality, good-paying construction jobs.'' Kelly testified that
the wages and benefits for these jobs would be approximately
$50 per hour.
The benefits will go well beyond the direct jobs building
the pipeline. For example, most of the construction equipment,
pipe, and other supplies used to build Keystone XL would be
U.S.-sourced, as well as much of the technical expertise
associated with the project. Kelly testified that the indirect
jobs ``include 7,000 manufacturing jobs associated with the
production of materials and components for the pipeline, and
over 118,000 spin-off jobs in various sectors related to the
design, construction and operation of the pipeline.''
Even after the construction phase is complete, Keystone XL
would provide employment associated with its operation. Along
with Canadian oil, the pipeline would also alleviate potential
oil bottlenecks that might otherwise limit growing oil
production in North Dakota and Montana, ensuring continued job
growth there. In addition, Canadian oil can take the place of
declining Mexican and Venezuelan supplies reaching Gulf Coast
refineries, helping to maintain or expand jobs at those
facilities. Further, given the well-established inverse
relationship between energy costs and employment, the reduction
in oil and gasoline prices as a consequence of Keystone XL
would yield additional jobs throughout the economy.
Ironically, during the span in which the Keystone XL permit
has languished at DOS, the Obama administration and Congress
embarked on a $787 billion dollar stimulus package in an
attempt to reduce unemployment and jump-start the economy.
Keystone XL would have been a prime example of the ``shovel-
ready'' projects that proponents of the stimulus package had
hoped to initiate--one that creates a large number of well-
paying jobs and boosts economic activity. Furthermore, while
the stimulus package cost taxpayers a great deal of money (and
whether it actually created an appreciable number of jobs is a
matter of considerable debate), the $7 billion dollar Keystone
XL project would be financed privately. In fact, rather than
require tax dollars Keystone XL would generate substantial tax
revenues for state and local communities along its route as
well as the federal government.
The Trans-Alaska Pipeline precedent
There are many historical parallels between Keystone XL and
the debate over the Trans-Alaska Pipeline in the early 1970s.
Back then, a major discovery of oil on the North Slope of
Alaska in Prudhoe Bay--the largest on the continent prior to
development of the Alberta oil sands--necessitated a pipeline
to transport this oil to American refineries, hence the
proposed 700-mile Trans-Alaska Pipeline. The project was
thoroughly studied for several years during which all
legitimate environmental and safety concerns were addressed.
Nonetheless, federal approval became bogged down by NEPA-
related delays similar to those currently impeding Keystone XL.
However, Middle East turmoil and rising oil prices finally
sparked Congressional action. In 1973, Congress passed and
President Nixon signed the Trans-Alaska Pipeline Authorization
Act, which removed all federal roadblocks to the project.
Construction on the pipeline began in 1974 and was completed in
1977. It has been in operation ever since.
Since that time, the pipeline has delivered 16 billion
barrels of oil to the American market, and has contributed
substantially to the health of Alaska's economy while creating
jobs throughout the nation. And, notwithstanding the many dire
predictions at the time from anti-pipeline activist groups
(several of whom now oppose Keystone XL), the pipeline has
amassed an excellent environmental and safety record and did so
using technology far less sophisticated than what would be
required for Keystone XL.
The main difference between the Trans-Alaska Authorization
Act and the North American-Made Energy Security Act is that the
latter does not automatically approve the project, but merely
requires the President to make a decision on Keystone XL by a
date certain.
HEARINGS
The Subcommittee on Energy and Power on May 23, 2011 held a
legislative hearing on a discussion draft of the ``North
American-Made Energy Security Act of 2011'' and received
testimony from:
The Honorable Dan McFayden, Chairman, Alberta Energy
Resources Conservation Board;
Mr. Alex Pourbaix, President, Energy and Oil
Pipelines, TransCanada;
Mr. Stephen Kelly, Assistant General President,
United Association of Plumbers and Pipe Fitters;
Mr. James Burkhard, Managing Director, Global Oil,
IHS Cambridge Energy Research Associates;
Mr. Jeremy Symons, Sr. Vice President, Conservation &
Education, National Wildlife Federation; and,
Mr. Murray Smith, President, Murray Smith &
Associates.
COMMITTEE CONSIDERATION
On May 16, 2011, a discussion draft of H.R. ___, the North
American-Made Energy Security Act, was released.
On May 23, 2011, the Subcommittee on Energy and Power held
a legislative hearing on the discussion draft and
Representative Terry, together with Representatives Ross,
Upton, Whitfield, Sullivan, Green, McMorris Rodgers, Walden,
McKinley, Gardner, Scalise, Myrick, Pitts and Murphy introduced
the discussion draft as H.R. 1938, the North American-Made
Energy Security Act (the ``NAMES Act'').
On June 15, 2011, the Subcommittee on Energy and Power
favorably reported the NAMES Act to the full Committee by a
voice vote. During the markup, three amendments were offered
and defeated by voice vote.
On June 23, 2011, the full Committee on Energy and Commerce
met in open markup session. During the markup, six amendments
were offered, of which one was adopted, and the Committee
ordered H.R. 1938 favorably reported to the House.
COMMITTEE VOTES
Clause 3(b) of rule XII of the Rules of the House of
Representatives requires the Committee to list the record votes
on the motion to report legislation and amendments thereto. A
motion by Mr. Upton to order H.R. 1938, reported to the House,
as amended, was agreed to by a record vote of 33 yeas and 13
nays. The following reflects the recorded votes taken during
the Committee consideration, including the names of those
Members voting for and against.
COMMITTEE OVERSIGHT FINDINGS
Pursuant to clause 3(c)(1) of rule XIII of the Rules of the
House of Representatives, the Committee made findings that are
reflected in this report.
STATEMENT OF GENERAL PERFORMANCE, GOALS AND OBJECTIVES
H.R. 1938 directs the President to expedite consideration
and approval of the construction and operation of the Keystone
XL pipeline project.
NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY AND TAX EXPENDITURES
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the committee finds that H.R.
1938, the North American-Made Energy Security Act, would result
in no new or increased budget authority, entitlement authority,
or tax expenditures or revenues.
EARMARK
In compliance with clause 9(e), 9(f), and 9(g) of rule XXI,
the committee finds that H.R. 1938, the North American-Made
Energy Security Act, contains no earmarks, limited tax
benefits, or limited tariff benefits.
COMMITTEE COST ESTIMATE
Pursuant to clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives, the following is the cost estimate
provided by the Congressional Budget Office pursuant to section
402 of the Congressional Budget Act of 1974:
July 8, 2011.
Hon. Fred Upton,
Chairman, Committee on Energy and Commerce,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1938, the North
American-Made Energy Security Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Megan
Carroll.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
H.R. 1938--North American-Made Energy Security Act
In September 2008, a Canadian firm applied for a permit to
construct the proposed Keystone XL pipeline, which would carry
crude oil from Alberta, Canada, to destinations on the U.S.
Gulf Coast. Because the proposed pipeline would cross
international borders, it requires a Presidential Permit issued
by the Department of State. H.R. 1938 would direct the
President, acting through the Secretary of Energy, to
coordinate with federal agencies to complete all necessary
actions required to enable the Secretary. of State to issue a
final order to either grant or deny that Presidential Permit no
later than November 1, 2011.
CBO estimates that enacting H.R. 1938 would have no
significant impact on the federal budget. According to the
Department of State and the Department of Energy, the
regulatory activities related to the proposed Keystone XL
pipeline are already underway, and CBO expects that, under
current law, a final decision will be made during fiscal year
2012. Based on information from those agencies, CBO estimates
that any change in federal costs to comply with the accelerated
timeframe specified by H.R. 1938 would be insignificant.
Enacting H.R. 1938 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
H.R. 1938 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on state, local, or tribal governments.
The CBO staff contact for this estimate is Megan Carroll.
The estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
FEDERAL MANDATES STATEMENT
The Committee adopts as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act.
ADVISORY COMMITTEE STATEMENT
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
APPLICABILITY TO LEGISLATIVE BRANCH
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
SECTION-BY-SECTION ANALYSIS OF LEGISLATION
Section 1: Short title
Section 1 provides the short title for the legislation, the
``North American-Made Energy Security Act.''
Section 2: Findings
Section 2 offers numerous Congressional findings regarding
domestic and global oil markets, the national security and
economic benefits of Canadian oil imports, the parameters of
the Keystone XL's capacity and environmental impact, and the
process of permit approval thus far.
Section 3: Expedited approval process
Section 3 directs the President, acting through the
Secretary of Energy, to coordinate with all Federal agencies
responsible for an aspect of the President's National Interest
Determination and Presidential Permit decision regarding
construction and operation of Keystone XL, to ensure that all
necessary actions are taken on an expedited schedule. The
President must issue a final order granting or denying the
Presidential Permit for Keystone XL 30 days after the issuance
of the final environmental impact statement, but in no event
later than November 1, 2011. Section 3 makes also makes clear
that no action made by the Secretary of Energy pursuant to this
section shall affect any duty or responsibility to comply with
any requirement to conduct environmental review.
CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
This legislation does not amend any existing Federal
statute.
DISSENTING VIEWS ON H.R. 1938
The State Department is currently considering a permit
application for the Keystone XL pipeline, pursuant to the
Department's delegated authority to permit a transboundary
pipeline project if the Department finds that such a project is
in the national interest. Keystone XL is a highly controversial
$7 billion pipeline that would transport up to 830,000 barrels
per day (bpd) of tar sands crude oil almost 2,000 miles from
Alberta to refineries in the Gulf Coast.\1\ H.R. 1938, the
``North American-Made Energy Security Act of 2011,'' would
override the State Department's ongoing process. The bill would
set a November 1, 2011, deadline for the State Department to
act on the permit, direct the Department of Energy to establish
a schedule for other responsible agencies to participate in the
process, and make a series of findings that essentially
predetermine the outcome of the State Department's evaluation
of the pipeline.
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\1\TransCanada Keystone Pipeline, L.P., Application of TransCanada
Keystone Pipeline, L.P. for a Presidential Permit Authorizing the
Construction, Operation, and Maintenance of Pipeline Facilities for the
Importation of Crude Oil to be Located at the United States-Canada
Border, 7-9 (Sept. 19, 2008); U.S. Department of State, Supplemental
Draft Environmental Impact Statement, Keystone XL Project, Applicant
for Presidential Permit: TransCanada Keystone Pipeline, LP, 1-5 (Apr.
22, 2011).
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Transboundary pipeline projects require Presidential
approval to proceed. The President has delegated the authority
to permit transboundary pipeline projects to the State
Department under Executive Orders 11423 and 13337, which
require a finding that a project is in the national
interest.\2\ Pursuant to the National Environmental Policy Act,
in considering a project, the State Department must prepare an
environmental impact statement (EIS) assessing the project's
impacts on the environment and evaluating alternatives that
would avoid or minimize adverse environmental effects.\3\ E.O.
13337 recognizes that these complex decisions involve matters
within the expertise of multiple federal agencies, and it
provides specified federal agencies 90 days to comment on the
application.\4\
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\2\Exec. Order No. 11423, 33 Fed. Reg. 11741 (Aug. 16, 1968); Exec.
Order No. 13337, 69 Fed. Reg. 25299 (Apr. 30, 2004).
\3\National Environmental Policy Act of 1969, Pub. L. No. 94-83.
\4\Exec. Order No. 13337, Sec. 1(c), 69 Fed. Reg. 25299 (Apr. 30,
2004).
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The Department of State published a draft EIS on April 16,
2010, for public comment. In response to extensive criticism of
the draft, the State Department published a supplemental draft
EIS (SDEIS) on April 22, 2011, providing additional information
and analysis on various aspects of the project.\5\ The public
comment period on the SDEIS closed on June 6, 2011. The State
Department is currently evaluating comments on the SDEIS from
the public and other federal agencies and is preparing the
final EIS, which is expected to take several months.
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\5\U.S. Department of State, Notice of Availability of the Draft
Environmental Impact Statement for the Proposed TransCanada Keystone XL
Pipeline Project, 75 Fed. Reg. 20653 (Apr. 16, 2010); U.S. Department
of State, Notice of Availability of the Supplemental Draft
Environmental Impact Statement for the Proposed TransCanada Keystone XL
Pipeline Project, 76 Fed. Reg. 22744 (Apr. 22, 2011).
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After completing the analysis of the project's
environmental impacts, the State Department will proceed to
determine whether the project is in the national interest,
which requires consideration of other factors beyond the
environmental impacts. Pursuant to E.O. 13337, other federal
agencies including the Departments of Defense, Justice,
Interior, Commerce, Transportation, Energy and Homeland
Security, and EPA have 90 days to provide their views regarding
whether the proposed project is in the national interest. Also,
the State Department has pledged that it will provide 30 days
for the public to weigh in on the national interest
determination, concurrent with the other agencies' review
period. The State Department has stated that it intends to act
on the permit by the end of the year.
H.R. 1938 would short-circuit this process. It requires the
State Department to issue the permit decision within 30 days of
the issuance of the final EIS and no later than November 1,
2011. This would cut the time available for federal agencies to
consult on the State Department's national interest decision by
two-thirds and either substantially reduce or wholly eliminate
the public comment period. The bill also would make findings
related to the permit decision on matters currently being
evaluated by the State Department and other federal agencies.
I. PURPOSE OF H.R. 1938
Supporters of H.R. 1938 assert that the bill is necessary
to get the Keystone XL pipeline built, claiming that the Obama
administration has stonewalled on the project approval and
created unnecessary delays in the permitting process.\6\
TransCanada's president for energy and oil pipelines, Alex
Pourbaix, stated that TransCanada has waited 33 months for the
State Department's permit decision on Keystone XL, while prior
pipeline permit applications have taken 20 months.\7\
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\6\House Subcommittee on Energy and Power, Statement of
Subcommittee Chairman Ed Whitfield, Markup on H.R. 1938, 112th Cong.
(June 15, 2011) (available at http://republicans.
energycommerce.house.gov/Media/file/Markups/Energy/061511/
Whitfield.pdf).
\7\House Subcommittee on Energy and Power, Testimony of TransCanada
president for energy and oil pipelines Alex Pourbaix, Hearing on the
American Energy Initiative, 112th Cong. (2011) (preliminary transcript
available at http://democrats.energycommerce.house.gov/sites/default/
files/image_uploads/Transcript_Hearing_EP_05.23.11.pdf).
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However, there is reason to believe that the review process
has been appropriate given the scope and implications of the
project. When asked whether the length of the Keystone XL
review justified special legislation to truncate the review
process, TransCanada's Pourbaix declined to endorse H.R. 1938,
testifying that the company had ``no involvement in this
proposed legislation.'' Mr. Pourbaix stated that the review
process for Keystone XL was ``entirely appropriate, given the
magnitude of the project and ensuring that people and
stakeholders are heard in this process.''\8\
---------------------------------------------------------------------------
\8\Id.
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The review process has taken longer than other recent
pipelines, in part because Keystone XL is a larger and more
controversial project and because the initial environmental
review from the State Department was widely viewed as
inadequate.\9\ The comment period on the DEIS closed on May 31,
2010. Pursuant to NEPA, EPA, DOE, the Interior Department and
other federal agencies commented on the draft EIS, and there
were over 40,000 public comments as well.\10\ As required by
statute, EPA reviewed the adequacy of the draft EIS and rated
the draft as ``Category 3--Inadequate Information,'' which is
the lowest rating possible.\11\ In particular, EPA suggested
that the State Department provide additional analysis on
greenhouse gas emissions, air pollution from refineries,
pipeline safety, and potential environmental justice
concerns.\12\
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\9\See, e.g., Letter from Rep. Inslee et al. to Hillary Clinton,
Secretary of State (June 23, 2010) (conveying concerns of 50 members of
the House of Representatives); Letter from Henry A. Waxman, Chairman,
Energy and Commerce Committee, to Hillary Rodham Clinton, Secretary of
State (July 2, 2010) (online at: http://
democrats.energycommerce.house.gov/documents/20100706/
State.070210.Clinton.Keystone.XL.pdf); Letter from Henry A. Waxman,
Chairman, Energy and Commerce Committee, to Elizabeth Orlando, Keystone
XL Project Manager, Department of State (July 2, 2010) (online at:
http://democrats.energycommerce.house.gov/documents/20100706/
State.070210.Orlando.Keystone.XL.pdf).
\10\Department of State Keystone XL Pipeline Project, How to Get
Involved (available at http://www.keystonepipeline-xl.state.gov/
clientsite/keystonexl.nsf?Open) (accessed June 30, 2011).
\11\Letter from Cynthia Giles, Assistant Administrator for
Enforcement and Compliance Assurance, U.S. EPA, to Jose Fernandez and
Kern-Ann Jones, U.S. Department of State (Jul. 16, 2010).
\12\Id.
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One witness before the Committee raised concerns that the
Keystone XL pipeline would raise gas prices by facilitating oil
company market manipulation, hurt energy security by allowing
tar sands product to be exported from the Gulf Coast, and
jeopardize clean water supplies, among other concerns.\13\
Another invited witness submitted written testimony expressing
concerns of farmers and ranchers near the pipeline route whose
livelihood would be threatened by a spill.\14\
---------------------------------------------------------------------------
\13\House Subcommittee on Energy and Power, testimony of Jeremy
Symons, Hearing on the American Energy Initiative, 112th Cong. (2011)
(online at: http://democrats.energy commerce.house.gov/
index.php?q=hearing/hearing-on-theamerican-energy-initiative-day-8).
\14\House Subcommittee on Energy and Power, testimony of Randy
Thompson, Hearing on the American Energy Initiative, 112th Cong. (2011)
(online at: http://democrats.energy commerce.house.gov/
index.php?q=hearing/hearing-on-theamerican-energy-initiative-day-8).
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Also, no evidence has been presented to the Committee
suggesting that the State Department will fail to carry out its
stated plans to act on the permit application by the end of the
year, or that the project would be endangered by waiting until
then.\15\ While EPA filed additional comments on the SDEIS, EPA
noted that the State Department had agreed to address many of
the issues raised in the final EIS, and EPA's comments do not
threaten or delay the State Department's ability to move
forward with a final decision. With the close of the public
comment period on the SDEIS in early June, the State Department
has several months to complete the final EIS by September,
while still providing 90 days for agency consultations on the
national interest determination and a concurrent 30 days for
public comment on the determination prior to the end of the
year.
---------------------------------------------------------------------------
\15\U.S. Department of State, State Department Announces Next Steps
in Keystone XL Pipeline Permit Process (Mar. 15, 2011).
---------------------------------------------------------------------------
This bill would require the State Department to make a
decision within 30 days of the final EIS, or by November 1,
2011, at the latest. This cuts the period for interagency
consultation on the national interest determination by two-
thirds and drastically shortens or eliminates any opportunity
for public comment on the national interest determination.
Proponents of this bill also argue that the Keystone XL
pipeline will lower gas prices, enhance energy security, and
create jobs, and therefore the permit should be approved.
Although the majority views claim that the Keystone XL
pipeline will reduce gas prices, they provide no support for
that assertion. In fact, some analyses indicate that the
pipeline would actually raise gasoline prices in the United
States, particularly in the Midwest, which would see supplies
drop as oil is diverted to refineries on the Gulf Coast. In its
application for the Keystone XL pipeline, TransCanada told the
Canadian government that the Midwest market is
``oversupplied,'' resulting in ``price discounting'' for
Canadian heavy crude oil.\16\ TransCanada concluded that a
pipeline to the Gulf Coast will benefit all heavy crude
producers in Western Canada ``by increasing the price they
receive for their crude.''\17\ TransCanada also provided an
independent analysis predicting that the Keystone XL pipeline
would increase prices by $6.55 per barrel of crude oil in the
Midwest and $3 per barrel everywhere else.\18\ By 2013, this
will generate between $2 billion and $3.9 billion in additional
revenue for Canadian oil companies.\19\ Dr. Philip Verlerger, a
prominent oil market analyst, concluded after analyzing
Keystone XL that ``millions of Americans will spend 10 to 20
cents more per gallon for gasoline and diesel fuel'' if the
pipeline is built.\20\
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\16\TransCanada Keystone Pipeline Group Ltd., Keystone XL Pipeline
Section 52 Application, Section 3: Supply and Markets at 7.
\17\Id.
\18\Purvin & Gertz, Inc., Western Canadian Crude Supply and
Markets, Prepared for TransCanada Keystone Pipeline Group Ltd. (Feb.
12, 2009) at 27-28.
\19\Id. at 29. See also, Philip Verleger, If gas prices go up
further, blame Canada, Minnesota Star-Tribune (Mar. 13, 2011).
\20\Philip Verleger, If gas prices go up further, blame Canada,
Minnesota Star-Tribune (Mar. 13, 2011).
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Supporters of the Keystone XL pipeline also argue that it
will enhance energy security by reducing reliance on oil
imports from the Middle East and Venezuela. A report by EnSys,
which was contracted by DOE, finds that U.S. imports of
Venezuelan crudes are projected to drop in all scenarios and
are only minimally affected by building or not building
Keystone XL.\21\
---------------------------------------------------------------------------
\21\EnSys, Keystone XL Assessment--Final Report, 99 (Dec. 23,
2010).
---------------------------------------------------------------------------
The majority views also are misleading in providing a
partial quote from the EnSys report to claim that the report
found that ``Keystone XL holds `the potential to very
substantially reduce U.S. dependency on non-Canadian foreign
oil, including from the Middle East.'' The full quote from the
report is: ``Together, growing Canadian oil sands imports and
U.S. demand reduction have the potential to very substantially
reduce U.S. dependency on non-Canadian foreign oil, including
from the Middle East.''\22\ In fact, EnSys found that policies
to lower oil demand have a substantially larger impact on U.S.
imports of Middle Eastern crude than would increasing the
amount of Canadian oil sands imports.\23\ The majority's quote
also eliminates the distinction that EnSys makes between the
effects on Middle Eastern oil imports of increasing oil sands
imports (which has an effect) and building the Keystone XL
pipeline (which does not). After a news report containing a
similar mischaracterization of the EnSys results, EnSys
released a statement clarifying its findings:
\22\Id. at 6.
\23\EnSys, Keystone XL Assessment--Final Report, 103 (Dec. 23,
2010).
The EnSys report makes clear that it is the low
demand scenario, (which assumes strong policy actions
to reduce U.S. oil use), supported by potentially
increasing US imports of Canadian crudes, that ``could
essentially eliminate Middle East crude imports longer
term'', not the Keystone XL pipeline. As the EnSys
report clearly states in its executive summary, the
Keystone XL pipeline would not of itself have any
significant impact on U.S. oil imports.\24\
---------------------------------------------------------------------------
\24\EnSys, Response to the Reuters News item published February 1,
2011 10:10pm EST, by Timothy Gardner and Edited by Devid Gregorio
(undated) (online at: http://www.ensysenergy.com/files/
ResponsetoReutersonKeystoneXLassessmentreport.pdf).
---------------------------------------------------------------------------
Another analysis finds that the Keystone XL pipeline would
facilitate the export of Canadian crude to China rather than
the United States.\25\
---------------------------------------------------------------------------
\25\Philip K. Verleger, The Tar Sands Road to China (May 2011).
---------------------------------------------------------------------------
II. SECTION-BY-SECTION ANALYSIS
A. Section 2: Findings
Section 2 makes congressional findings on matters relevant
to the State Department's permit decision. Several findings
supplant the State Department's review process, directly
stating that Keystone XL is in the national interest. The
findings are broadly unbalanced, presenting only statements
that support approval of the Keystone XL project. Some findings
are even inaccurate and misleading. The cumulative effect of
the findings is to conclude that construction of the Keystone
XL project is in the national interest, and making it difficult
for the State Department to reach any other conclusion.
Several of the findings resolve key issues that the State
Department is currently considering in the permit decision.
Section 2(4) states that ``(t)he development and delivery of
oil and gas from Canada to the United States is in the national
interest of the United States in order to secure oil supplies
to fill needs that are projected to otherwise be filled by
increases in other foreign supplies, notably from the Middle
East.'' Another finding states that the earliest possible
construction of Keystone XL will make Canadian oil reserves
available for U.S. use and increase jobs and ``will therefore
serve the national interest.''\26\ These findings infringe on
the President's authority to decide whether the pipeline is in
the national interest of the United States.
---------------------------------------------------------------------------
\26\H.R. Sec. 1938 2(14).
---------------------------------------------------------------------------
The findings are also unbalanced. The bill presents reasons
to approve the Keystone XL pipeline while ignoring or denying
the many concerns about the project.
One of the central objections to the Keystone XL pipeline
is the effect on climate change. It is widely recognized that
tar sands crudes have higher life-cycle greenhouse gas
emissions than conventional crudes, and the SDEIS found that
the project could increase U.S. life-cycle greenhouse gas
emissions by up to an additional 23 million metric tons of
CO2-equivalent annually, although EPA commented that
this was an underestimate of the high-end amount.\27\ EnSys
project that, if other pipeline projects are not approved,
construction of Keystone XL would increase tar sands production
by 800,000 barrels per day and increase global CO2-
equivalent emission by 20 million metric tons per year by
2030.\28\ However, the findings fail to acknowledge any of
these projections. In fact, the only mention of global warming
is an inaccurate claim regarding the lack of impact on
greenhouse gas emissions, which is discussed further below.
---------------------------------------------------------------------------
\27\See, e.g., State Department, SDEIS at 3-199 (April 22, 2011).
\28\EnSys, Keystone XL Assessment--Final Report at 117 (Dec. 23,
2010); EnSys, Keystone XL Assessment--Final Report, Appendix, 40 (Dec.
23, 2010).
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The findings also make no mention of the other
environmental impacts of increased tar sands production,
including the destruction of Canada's boreal forests and
wetlands, and the degradation of water and air quality.\29\ EPA
has raised concerns about the health impacts on communities
that live near refineries from increased emissions from
refineries.\30\
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\29\See Woynillowicz et al., Oil Sands Fever, Pembina Institute,
36-52 (Nov. 2005).
\30\Letter from Cynthia Giles, U.S. EPA to Jose W. Fernandez,
Assistant Secretary, Economic, Energy and Business Affairs, U.S. Dept.
of State and Dr. Kern-Ann Jones, Assistant Secretary, Oceans and
International Environmental and Scientific Affairs, U.S. Dept. of State
(June 6, 2011).
---------------------------------------------------------------------------
The majority views dismiss the environmental concerns by
asserting that oil sands production will increase with or
without construction of Keystone XL. However, the International
Energy Agency disagrees, finding that as much as 1 million
barrels per day of production could fail to materialize if new
pipelines are delayed.\31\ Similarly, sources in the oil
industry and Albertan government indicate that access to
pipelines is key to industry's plans to more than double tar
sands production by 2020.\32\
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\31\Pipelines key to growth in North American crude output, IEA
says, Globe and Mail (June 17, 2011).
\32\Untimely pipeline spills: TransCanada, Enbridge buffected by
accidents; Alberta frets over landlocked bitumen, Petroleum News (June
19, 2011).
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The bill findings also downplay serious concerns about the
safety of diluted bitumen pipelines. Critics argue that tar
sands bitumen is more corrosive than conventional oil and may
exacerbate pipeline deterioration.\33\ These concerns are
heightened by the series of accidents along TransCanada's first
Keystone pipeline in the first year of operation. The
Administrator of the Pipeline and Hazardous Materials Safety
Administration testified in the Energy and Power Subcommittee
that PHMSA has not evaluated the risks associated with
transporting diluted bitumen.\34\ A breach of the Keystone XL
pipeline that contaminates the Ogallala Aquifer would be
calamitous. The findings also fail to address the concerns of
landowners who will see the pipeline cross their land.\35\
---------------------------------------------------------------------------
\33\Anthony Swift et al., Tar Sands Pipelines Safety Risks, a Joint
Report by the Natural Resources Defense Council, National Wildlife
Federation, Pipeline Safety Trust, and Sierra Club, 6 (Feb. 2011)
(online at www.nrdc.org/energy/files/tarsandssafetyrisks.pdf).
\34\House Subcommittee on Energy and Power, Testimony of Pipeline
and Hazardous Materials Safety Administration Administrator Cynthia L.
Quarterman Hearing on ``Pipeline Safety,'' 112th Cong. (Jun. 16, 2011).
\35\House Subcommittee on Energy and Power, Testimony of Randy
Thompson, Hearing on the American Energy Initiative, 112th Cong. (May
23, 2011) (online at http://democrats. energycommerce.house.gov/sites/
default/files/image_uploads/Testimony_EP_05.23.11_Thompson.pdf).
---------------------------------------------------------------------------
Several of the findings are inaccurate or misleading.
Contrary to Section 2(15), there has not been analysis using
EPA models showing that construction of the Keystone XL
pipeline will result in no significant change in United States
or global greenhouse gas emissions. EPA confirmed the
inaccuracy of this finding in a letter to Ranking Member
Rush.\36\ Section 2(7) suggests that Canadian oil would ship to
China if Keystone XL were not built. There is no existing
outlet for any meaningful quantity of tar sands oil to be sent
to China and there are significant barriers to constructing the
necessary pipeline(s).\37\ Once completed, however, Keystone XL
may provide a ready export corridor for the oil to Southeast
Asia.\38\ Section 2(14) implies that faster construction of
Keystone XL would speed the flow of Canadian oil to the U.S.,
but industry analyses show that spare pipeline capacity would
persist until 2024 even without the construction of Keystone
XL.\39\
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\36\Letter from Gina McCarthy, Assistant Administrator, U.S. EPA,
to Rep. Bobby L. Rush (Jun. 22, 2011).
\37\Green Party of Canada, Greens Defend BC North Coast Oil Tanker
Ban (Feb. 25, 2011) (online at http://greenparty.ca/media-release/2011-
02-25/greens-defends-bc-north-coast-oil-tanker-ban). See also The Tar
Sands Road to China.
\38\See The Tar Sands Road to China.
\39\Keystone XL Assessment--Final Report at 30-31.
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B: Section 3: Expedited approval process
Section 3 shortens the review process for the Keystone XL
permit application by requiring that the President issue a
final order granting or denying the Presidential Permit within
30 days of the issuance of the final environmental impact
statement, and no later than November 1, 2011. The expedited
approval process requires the Secretary of Energy to coordinate
the federal agencies involved in the national interest
determination to ensure that the agencies act on an expedited
schedule. The federal agencies must meet any deadline
established by the Secretary of Energy.
This language would substantially cut the time available
for federal agencies and the public to provide their views on
the national interest determination. Currently, after the State
Department issues a final EIS, there will be a 90-day period
for the Department to consult with other federal agencies to
determine if issuing a permit for the project is in the
national interest.\40\ The public would also be able to submit
comments on the national interest determination during the
first 30 days of this period. This bill eliminates two-thirds
of the time currently provided for federal agencies to consult
on the national interest determination. It also would require
reduction or elimination of the 30-day public comment period on
the national interest determination that the State Department
has committed to provide.
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\40\U.S. Department of State, Supplemental Draft Environmental
Impact Statement, Keystone XL Project, Applicant for Presidential
Permit: TransCanada Keystone Pipeline, LP at ES-4 (Apr. 22, 2011)
(hereinafter ``SDEIS'').
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For the reasons stated above, we dissent from the views
contained in the Committee's report.
Henry A. Waxman.
Bobby L. Rush.
Jay Inslee.
Lois Capps.
G.K. Butterfield.
Edward J. Markey.
Jan Schakowsky.
Donna M. Christensen.
Doris O. Matsui.
Anna G. Eshoo.
Diana DeGette.
Kathy Castor.
Edolphus Towns.