Indigenous Environmental Network v. U.S. Department of State

In addition to dismissing claims brought in both this action and the related action, Indigenous Environmental Network v. U.S. Department of State, No. 4:17-cv-00029, the court decided to hold a NEPA claim against the Bureau of Land Management in abeyance until BLM issued a final decision.

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The federal district court for the District of Montana granted in part but largely denied a motion by the developers of the Keystone XL oil pipeline for a stay pending appeal of the injunction barring construction and preconstruction activities for the pipeline. The court enjoined work on the pipeline after finding that the Department of State violated the National Environmental Policy Act (NEPA) and Administrative Procedure Act when it reversed the Obama administration’s denial of a cross-border permit for the pipeline. In the stay motion, the developer sought permission to conduct three off-right-of-way activities. In its order on the motion, the court found that the developer was unlikely to prevail on appeal, including on its arguments that the Department of State sufficiently analyzed cumulative greenhouse gas impacts and adequately explained its decision to reverse course and approve the permit. With respect to the policy shift, the court said the Department’s “discretion to give more weight to energy security” did not excuse it from ignoring the Obama administration’s “factually-based determinations” regarding “Climate Change-Related Foreign Policy Considerations.” The court further found that both the developer and the plaintiffs had shown irreparable injury; that off-right-of-way activities in areas that had not been surveyed or were not part of the earlier supplemental environmental impact statement would further threaten irreparable injury to the plaintiffs; and that the public interest weighed in favor of a complete NEPA review. The court therefore allowed certain preconstruction activities to take place in already-surveyed areas but otherwise left the injunction on preconstruction activities in effect.

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Because President Trump issued a new permit for the Keystone XL pipeline project and revoked the previous permit, the Ninth Circuit Court of Appeals granted the federal government’s motion to dismiss as moot the appeal of a district court’s decisions finding lapses in the State Department’s initial approval of the project. The Ninth Circuit also vacated the district court judgments, dissolved the permanent injunction orders, and remanded the case with instructions to dismiss the district court actions as moot.

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