Indigenous Environmental Network v. Biden

The federal district court for the District of Montana dismissed as moot a case brought by environmental groups to challenge President Trump’s issuance in 2019 of a Presidential Permit for the Keystone XL oil pipeline. President Biden revoked the Presidential Permit in January 2021. In May 2021, the court determined that the case was not moot because the court could still grant relief such as the removal of constructed portions of the project. Since that time, the project’s developer had removed the border-crossing segment of the pipeline at issue in this case and would relinquish a remaining right-of-way grant once reclamation measures were deemed successful. In addition, there was no longer a possibility that a federal court in Texas would reinstate the Presidential Permit because the Texas court had ruled that that the challenge to its revocation was moot and there was no appeal.

On July 30, 2021, the district court (which previously determined that the revocation of the permit did not render the case moot) denied the developers’ motion to dismiss. The court found that nothing in the developers’ announcement of the termination of the project altered its earlier decision on mootness. The court said the 2019 permit continued to present a live controversy, and that, even if it did not, it met the mootness exception for voluntary cessation of unlawful activity.

On June 24, 2021, the developers filed a notice reporting that the federal defendants agreed the case was moot but that the plaintiffs contended that the case still was not moot.

In the case challenging President Trump’s issuance of a presidential permit for the Keystone XL Pipeline project, the Keystone XL developers on June 9, 2021 notified the federal district court for the District of Montana of the project’s termination. The developers contended that the project’s termination was a material change of circumstances that warranted reconsideration of the court’s May 28 ruling that the case was not moot despite President Biden’s revocation of the permit. The developers said they would confer with the parties to determine whether they agreed the case was now moot and that if any party disagreed, the developers would file a motion to dismiss.

In the lawsuit challenging President Trump’s 2019 issuance of a presidential permit for the U.S.-Canada border segment of the Keystone XL pipeline, the federal district court for the District of Montana concluded that President Biden’s revocation of the permit did not render the plaintiffs’ claims moot. First, the court concluded that the case presented a live controversy because the court could order removal of the pipeline segment. In addition, the court found that the exception to mootness for voluntary cessation of unlawful activity would apply because the court could prevent President Biden or a future president from unilaterally issuing another permit. The court said it would issue an order on pending summary judgment motions “in due course.”

In Executive Order 13990, President Biden revoked the 2019 Presidential Permit for the Keystone XL pipeline. The federal district court for the District of Montana subsequently stayed two cases (this one and Rosebud Sioux Tribe v. U.S. Department of State) challenging the 2019 permit until April 5 and directed the parties to submit a status report before that date regarding whether the court should proceed with mootness briefing or continue the stay.

In a lawsuit challenging the 2019 Presidential Permit for the Keystone XL pipeline, the federal district court for the District of Montana denied requests to enjoin work on the pipeline. The court found that the plaintiffs failed to show “at this juncture” that they were likely to succeed on the merits of their claims and that they also failed to show they were likely to suffer irreparable injury. The court—which concluded that the Presidential Permit authorized only a 1.2-mile border-crossing segment of the pipeline and not, as the plaintiffs argued, the additional 875 miles of pipeline in the U.S.—found that alleged irreparable injuries outside the scope of what the permit authorized were “beyond the scope of the relief available.” Although the court found that each side had “valid arguments for their side in the balance of equities and public interest,” including the plaintiffs’ allegations of climate change harms caused by Keystone’s eventual operation, the court found that the “weight of these factors remains unclear and fails to compel the granting of preliminary relief.” The court also denied motions to amend the complaint to add President Trump’s executive order concerning permitting of facilities at international boundaries and to add a claim challenging a right-of-way permit from the U.S. Bureau of Land Management (BLM). The court rejected the former set of amendments on the grounds of futility, undue delay, and the plaintiffs’ previous opportunity to amend, and the latter on the grounds of undue delay, unfair prejudice to the defendants and defendant-intervenors, and judicial economy. The court asked for supplemental briefing on the remaining constitutional issues, focused on separation of powers issues related to border-crossing pipeline permits.

Briefing on the renewed motion for a preliminary injunction is scheduled to be completed on February 18, and the developer indicated it would not begin pre-construction activities before February 24. Briefing on summary judgment motions is to be completed by March 23, with a hearing scheduled for March 25 on any pending motions.

After the developer filed a status report on January 14, 2020 indicating that it planned to commence construction of the cross-border segment in April 2020 and would need to engage in pre-construction activities beginning in February 2020, the plaintiffs filed a renewed motion for a preliminary injunction.

In a separate order, the court directed the parties to file supplemental briefs on eight issues related to the scope of authorized activities under the permit, separation of powers, and the developer’s authority to construct the pipeline without a permit if the president lacks authority to issue the cross-border permit.

The federal district court for the District of Montana denied motions to dismiss and for a preliminary injunction in litigation challenging a presidential permit issued in 2019 for a cross-border segment of the Keystone XL pipeline. The court found that the plaintiffs pled plausible claims under the Commerce Clause and Property Clause that President Trump exceeded his legal authority when he issued the permit, as well as claims that the 2019 permit violated a 2004 executive order that established a permitting process for cross-border pipelines. The court found that the plaintiffs had not demonstrated that a preliminary injunction was required to maintain the status quo but said the plaintiffs could renew their request at a later time if the pipeline developer’s activities interfered with the status quo.

A regional network of indigenous peoples and a regional association of conservation leaders filed a lawsuit on April 5, 2019 challenging actions taken by President Trump on March 29, 2019 to facilitate construction and operation of the Keystone XL Pipeline. The lawsuit challenged the President’s authority to issue a new presidential permit for pipeline facilities at the U.S.-Canada border (President Trump also revoked the presidential permit issued in March 2017) and his authority to authorize the pipeline’s other U.S. facilities, which extend for 875 miles. The plaintiffs asserted that the President lacked authority to issue the presidential permit because the Constitution’s Property Clause granted Congress the authority to regulate federal lands and Congress had directed BLM to manage the property in question (a 1.2-mile segment in Montana on lands administered by BLM). The plaintiffs asserted that the President lacked authority with respect to the balance of the pipeline for three reasons: (1) the pipeline would cross 45 miles of other lands administered by BLM; (2) the authorization conflicted with Congress’s correlative power to regulate foreign and domestic commerce; and (3) the authorization conflicted with executive orders that delegated authority to approve transboundary pipelines such as Keystone XL to the Department of State. The plaintiffs contended that the executive orders required compliance with all applicable laws and that by evading compliance with those laws, the President’s action conflicted with Congress’s correlative power to regulate foreign and interstate commerce. (In Executive Order 13867 issued on April 10, President Trump revoked these executive orders.)