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

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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In the litigation challenging the March 2017 presidential permit, the federal government and TransCanada asked the Ninth Circuit to dismiss their appeals of the district court’s orders finding violations of NEPA and the Administrative Procedure Act. In their motions, the government and TransCanada argued that President Trump’s revocation of the presidential permit rendered the plaintiffs’ claims moot. They asked the Ninth Circuit to vacate the district court’s judgment and void the district court’s injunction on construction and certain preconstruction activities. Briefing on the motions was scheduled to be completed on May 7.

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On March 15, 2019, the Ninth Circuit Court of Appeals denied a motion by the Keystone XL pipeline developers to stay a district court order barring them from proceeding with construction and certain preconstruction activities. A Montana federal district court <a href="https://climatecasechart.com/wp-content/uploads/case-documents/2019/20190215_docket-417-cv-00029_order.pdf">enjoined</a> such activities pending the U.S. Department of State’s completion of additional environmental review in compliance with the court’s November 2018 <a href="https://climatecasechart.com/wp-content/uploads/case-documents/2018/20181108_docket-417-cv-00029_order-1.pdf">order</a>. In the order denying the stay, the Ninth Circuit characterized the jurisdictional questions as “complex” and found that the developers had not made “the requisite strong showing that they are likely to prevail on the merits.” Noting that the district court itself had narrowed the scope of its injunction, the Ninth Circuit found no abuse of discretion in the district court’s declining to stay the injunction. On March 29, 2019, however, President Trump issued a <a href="https://www.whitehouse.gov/presidential-actions/presidential-permit/">new presidential permit</a> authorizing the pipeline’s construction and revoking the March 2017 permit that is the subject of the lawsuit. The new permit stated that it was granted “notwithstanding” a January 2017 presidential memorandum on which the district court <a href="https://climatecasechart.com/wp-content/uploads/case-documents/2017/20171122_docket-417-cv-00029_order.pdf">relied</a> to find that the March 2017 permit was not immune from review. The district court concluded that the January 2017 memorandum waived the president’s right to review the State Department’s decision on the permit and that the State Department’s decision was subject to judicial review. Neither the government nor the pipeline developer had applied to the district court or the Ninth Circuit for relief from the injunction as of April 1.

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In their stay motion in the Ninth Circuit, the Keystone developers focused on threshold jurisdictional issues, including the issue of whether the district court had erred in finding that the State Department’s issuance of a presidential permit for the project was subject to judicial review. The developers also argued that the scope of the district court’s injunction was impermissibly broad.