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Keystone Has Obama Trapped in His Own 5 Percent

Photographer: Charles Dharapak/AP Photo

In this Sept. 21, 2005 file photo, then-Supreme Court Chief Justice nominee John Roberts, left, meets with then-Sen. Barack Obama, D-Ill., in Obama's office on Capitol Hill in Washington. Close

In this Sept. 21, 2005 file photo, then-Supreme Court Chief Justice nominee John... Read More

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Photographer: Charles Dharapak/AP Photo

In this Sept. 21, 2005 file photo, then-Supreme Court Chief Justice nominee John Roberts, left, meets with then-Sen. Barack Obama, D-Ill., in Obama's office on Capitol Hill in Washington.

President Obama has talked himself into a bind on the Keystone pipeline, which environmentalists turned into a litmus test for his commitment to fighting climate change. He might look for counsel to his own words, in 2005, arguing against the confirmation of John Roberts as chief justice of the Supreme Court.

Obama took the Senate floor on Sept. 22 to discuss President George W. Bush's nomination of Roberts. A senator for less than a year -- and looking more than eight years younger than he looks today -- Obama opened with his credentials: a decade as constitutional law professor at University of Chicago Law School and an active lawyer on the federal appeals circuit.

Based on that experience, he concluded that professionally he had no qualms about Roberts becoming chief justice. The man knows the law, and the law is what decides cases, Obama said. Statutes, rules and precedents will guide justices of any bent to the same decision in 95 percent cases, "so that both a Scalia and a Ginsburg will arrive at the same place most of the time."

Obama's concerns over Roberts had to do with that last five percent of cases, for which the law offers little guidance. In those cases, decisions "can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy," he said. In these cases, "the critical ingredient is supplied by what is in the judge's heart."

Today, the president faces an analogous situation over whether to issue a presidential permit enabling the Keystone XL pipeline to be built.

The State Department environmental review has concluded that the project wouldn't make climate change dramatically worse. The report finds that across the project's life cycle, transported oil sands crude would result in additional emissions between 1.3 million and 27.4 million metric tons of carbon dioxide equivalent, above what might be expected from non-oil sands crude. That range is equivalent to emissions from 270,833 to 5,708,333 cars for a year, according to the State Department.

That's a lot of cars, yet with this assessment the report "reaffirms the conclusion" of a previous draft "that approval or denial of any one crude oil transport project, including the proposed Project, remains unlikely to significantly impact the rate of extraction in the oil sands, or the continued demand for heavy crude oil at refineries in the United States."

Any one crude oil transport project is unlikely to significantly affect the rate of extraction of the oil sands and, by extension, the rate of warming. It’s true. But you could say the same thing for a gigawatt-scale coal-fired power plant, that humongous SUV you want or the entire greenhouse gas output of Estonia.

The State Department's conclusion is as fine an example as any of a major obstacle to action on climate change: Anything you can do about it is too incremental to consider doing, short of a systemic legislative fix. U.S. environmental laws are not equipped to deal with a problem in which any single project's incremental emissions are meaningless but every project's emissions are meaningful.

Obama's decision now is what to do about a problem never envisioned by the framers of the Constitution or, for that matter, by the authors of the 1970 National Environmental Policy Act. And to find his answer, he might not have much more than the "depth and breadth of one's empathy."

Senator Obama voted against that nomination in 2005, not because of Roberts's judicial street cred, but because he feared how the justice would rule in cases that fell into the five percent. Now, the president is alone in his very own five percent, trapped between allegiance to a legal environmental review process that misses the nature of the problem, and his own, repeatedly stated sympathy for climate change action. "The legal process alone will not lead you to a rule of decision," he said in 2005.

Where will it lead him in 2014?

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