By Bree Black Horse
On Wednesday, U.S. District Judge Brian M. Morris allowed a lawsuit challenging the Keystone XL Pipeline to move forward.
The TransCanada Corporation applied for a Presidential Permit in 2008 and reapplied in 2012 for the Keystone XL Pipeline, which would run 875 miles from the Canadian border to connect to another pipeline in Nebraska. The Keystone XL Pipeline will transport up to 830,000 barrels per day or crude oil from Alberta and the Bakken in Montana to existing pipeline facilities in Nebraska and eventually to Oklahoma and the Gulf Coast region.
Secretary of State John Kerry denied TransCanada’s Presidential Permit application on November 6, 2017. Secretary Kerry determined that issuing a Presidential Permit for the Keystone XL Pipeline would not serve the national interest. Secretary Kerry’s denial did not, however, stop TransCanada and the Keystone XL Pipeline.
Republican Donald Trump was then elected President of the United States.
Just days after being sworn into office on January 20, 2017, President Trump issued a Presidential Memorandum Regarding Construction of the Keystone XL Pipeline on January 24. In this Memorandum, President Trump invited TransCanada “to resubmit its application to the Department of State for a Presidential permit for the construction and operation of the Keystone XL Pipeline.”
That same day, President Trump also issued an Executive Order on Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects. In this Executive Order, President Trump announced a new general Executive Branch policy “to streamline and expedite, in a manner consistent with law, environmental reviews and approvals for all infrastructure projects, especially projects that are a high priority for the Nation.” The Executive Order cites Keystone XL Pipeline as an example of such a high priority project.
Two days later, TransCanada resubmitted its Keystone XL Pipeline Presidential Permit application to the State Department—for the third time.
The State Department approved a Presidential Permit to TransCanada for the Keystone XL Pipeline on March 23, 2017, and issued the permit on April 4, 2017. The State Department relied on environmental reviews conducted in 2013 and 2014 in determining whether the issuance of the Presidential Permit would serve the national interest. The State Department did not supplement or revise either the 2013 or 2014 environmental review.
The Indigenous Environmental Network (“IEN”) and North Coast Rivers Alliance (“NCRA”) (collectively, “Plaintiffs”) filed a complaint for declaratory and injunctive relief in the U.S. District Court for the District of Montana on March 27, 2017, challenging that Presidential Permit. Indigenous Environmental Network v. U.S. Dep’t of State, No. 4:17-cv-00029-BMM (D. Mont.).
Plaintiffs sued the State Department, U.S. Fish and Wildlife Service, and various federal officials (collectively, “Federal Defendants”) for alleged violations of the National Environmental Policy Act (“NEPA”), the Endangered Species Act (“ESA”), the Migratory Bird Treaty Act (“MBTA”), the Bald Eagle and Golden Eagle Protection Act (“Eagle Act”) and the Administrative Procedures Act (“APA”) and corresponding federal regulations.
Plaintiffs ask the U.S. District Court to order the Federal Defendants to withdraw their environmental review and Keystone XL Pipeline approvals until the Federal Defendants have complied with NEPA, ESA and APA. Plaintiffs seek a declaration from the Court that Federal Defendants violated NEPA, ESA and APA and to issue permanent injunctive relief that would prevent Federal Defendants and TransCanada from initiating any activities in furtherance of the Keystone XL Pipeline.
The Court granted TransCanada’s motion to intervene as a defendant alongside the Federal Defendants in this litigation.
The Federal Defendants and TransCanada then together moved to dismiss Plaintiffs’ complaint for lack of jurisdiction.
U.S. District Court Judge Brian M. Morris denied those motions on November 22, 2017. To summarize that 33 page opinion:
o The Court rejected all of Federal Defendants’ and TransCanada’s challenges to Plaintiffs’ NEPA claims.
o The Court found that the issuance of the Presidential Permit for the Keystone XL Pipeline did not qualify as a “Presidential action” exempt from judicial review or NEPA compliance.
o The Court determined the Presidential Permit for the Keystone XL Pipeline is subject to judicial review and State Department must comply with NEPA in issuing a Presidential Permit for the Keystone XL Pipeline.
o The Court concluded that the Federal Defendants and TransCanada had failed to meet their burden to demonstrate that Congress has committed to agency discretion by the law the State Department’s decision to issue the Presidential Permit for the Keystone XL Pipeline.
o The Court also held that Plaintiffs’ had standing to bring their NEPA claims against the Federal Defendants.
· The Court rejected all of Federal Defendants’ and TransCanada’s challenges to Plaintiffs’ ESA claims.
o The Court found that Plaintiffs had properly alleged their ESA claims and possessed standing to bring their ESA claims.
o Plaintiffs’ ESA claims were not barred by sovereign immunity because the issuance of the Presidential Permit for the Keystone XL Pipeline did not qualify as a “Presidential action.”
NEPA Claims Against The Federal Defendants.
The Court first addressed the various challenges to Plaintiffs’ NEPA claims. Federal Defendants and TransCanada argued that the issuance of a Presidential Permit constitutes a presidential action that a court may not review under the APA. They also argued that even if the issuance of a Presidential Permit could be deemed an agency action, it represents an action committed to agency discretion by law thereby shielding it from judicial review under the APA. Federal Defendants and TransCanada further argued that Plaintiffs lack the ability to redress their alleged injuries
The Court looked to the actions of the State Department since 2008 regarding the Keystone XL Pipeline and observed that the State Department previously acknowledged that it needed to comply with NEPA and issue an EIS when TransCanada applied for the Presidential Permit in 2008 and again in 2012. “The logical conclusion to be drawn,” the Court determined, “is that the State Department intended for the publication of the ROD/NID and the issuance of the accompanying Presidential Permit to be reviewable as final agency action.” The Court admonished the Federal Defendants for “now attempt[ing] to recast the State Department’s original decision to comply with NEPA, as required for a major Federal action, into a policy choice, or ‘act of grace,’ to avoid judicial review.”
Federal Defendants and TransCanada claimed the State Department acted pursuant to the President’s inherent authority under the Constitution when it issued the ROD/NID and when it issued the accompanying Presidential Permit. Although the issuance of the Presidential Permit represents the kind of action from which legal consequences will flow, the Federal Defendants and TransCanada argued that Plaintiffs could not challenge this kind of Presidential action under the APA because Executive Order 13337 renders any decision on a cross-border project “Presidential action” that stands beyond judicial review. The Court rejected this argument.
The Court determined that no “Presidential action” preclusive of judicial review exists in this case. The Court concluded that “[t]he President waived any right in his Memorandum to review the State Department’s decision under Executive Order 13337 or to make any final decision regarding the issuance of the Presidential Permit.
Federal Defendants and TransCanada next argued that the issuance of the Presidential Permit is not subject to judicial review because Congress committed the State Department’s decision to issue the Presidential Permit “to agency discretion by law.” The Court held that Congress did not commit this decision to agency discretion because NEPA provides a meaningful standard against which to judge the State Department’s conduct.
Further, the Court cited the Ninth Circuit’s decision in ASSE International v. Kerry, 803 F.3d 1059 (9th Cir. 2015), which made clear that the State Department cannot avoid judicial review simply by invoking its consideration of “foreign policy” or “security factors,” as the Federal Defendants have attempted to do in this matter. The Court emphasized that the State Department’s own regulations require compliance with NEPA for projects like the Keystone XL Pipeline and that Congress enacted NEPA for just this purpose; to ensure full analysis of potential environmental impacts of pipeline projects like the Keystone XL Pipeline.
Federal Defendants next argued that a court order enjoining the Presidential Permit unconstitutionally would infringe on the President’s authority. The Court observed that Plaintiffs had alleged procedural injuries under NEPA similar to those alleged in Sierra Club v. Clinton, 689 F.Supp.2d 1147 (D. Minn. 2010), and that “[t]he Ninth Circuit has determined that a remedy ‘procedural in nature’ would redress a procedural NEPA injury” in Ocean Advocates v. U.S. Army Corps of Engineers, 402 F.3d 846 (9th Cir. 2005). The Court thus concluded, “Plaintiffs’ alleged procedural injuries could be redressed through the procedural remedy of adequate environmental review under NEPA.”
ESA and APA Claims Against U.S. Fish and Wildlife
Federal Defendants further argued that the Court should dismiss for lack of standing the alleged ESA and APA violations committed by FWS in preparing the 2013 BiOp.
The Court first addressed the standing issue. Plaintiffs allege that the Keystone XL Pipeline would affect a host of species and that its members highly value those species. The Court found that Plaintiffs had met the redressability requirement for the ESA and APA claims and the alleged harms confer standing on Plaintiffs based on the U.S. Supreme Court’s decision in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1991).
ESA and APA Claim Against the Federal Defendants
Federal Defendants and TransCanada argued that Plaintiffs’ alleged violations of the ESA and APA should be dismissed because no waiver of sovereign immunity for the ESA citizen-suit claim exists and Plaintiffs lack standing to bring the ESA citizen-suit claim.
Although the citizen-suit provision of the ESA represents a wavier of sovereign immunity, Federal Defendants and TransCanada claimed this waiver excludes the President. They again argued that the State Department’s issuance of the Presidential Permit qualify as a Presidential action. “They do not” the Court held, explaining “[t]hey represent agency actions by the State Department.”
The Court noted that at oral argument TransCanada dismissed FWS’s actions regarding the preparation of the 2013 BiOp as “acts of grace.” The Court squarely rejected this notion: “The State Department, or any other federal agency, rarely undertakes needless activities as acts of grace to our citizens.”
The Court concluded “[t]he State Department’s publication of the ROD/NID and its issuance of the accompanying Presidential Permit qualify as agency actions subject to review by this Court under the ESA citizen-suit provision.”
Finally, the Court rejected TransCanada’s argument that Plaintiffs’ lacked standing and found that Plaintiffs had properly alleged their ESA claims. “Plaintiffs’ injuries would be redressed,” the Court observed, “if the State Department were to set aside the Presidential Permit and engage in a more thorough analysis of the Keystone XL Pipeline’s impacts on the protected species and the protected habitat to ensure compliance with the ESA.”
The Federal Defendants have 60 days to appeal—by the end of January 2018—the denial of their motion to dismiss to the Ninth Circuit Court of Appeals.
Bree is an associate in the Seattle office of Galanda Broadman and an enrolled member of the Seminole Nation of Oklahoma. Her practice involves complex federal court litigation. She can be reached at (206) 735-0448 or bree@galandabroadman.com
