Indigenous Environmental Network v. United States Department of State

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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On January 7, 2019, the Department of Justice (DOJ) filed a statement supporting TransCanada’s view that DOJ's presence was not necessary at the hearing on TransCanada's motion to stay the injunction pending appeal.

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On January 4, 2019, TransCanada submitted a statement conveying its view that the hearing on its motion for a stay pending appeal could proceed even if the federal government shutdown prevented the U.S. Department of Justice (DOJ) from participating because, in TransCanada’s view, the court’s injunction “largely concerns TransCanada” and DOJ’s presence “is not essential.”

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TransCanada appealed the November and December orders and has asked the district court for a stay while it pursues the appeal. TransCanada requested that the court rule on the stay request by January 7 so that TransCanada could, if necessary, pursue relief in the Ninth Circuit “with the goal of preserving the 2019 construction season.” The district court scheduled a hearing on the stay motion for January 14.

On December 7, 2018, the federal district court for the District of Montana enjoined TransCanada Keystone Pipeline, LP (TransCanada) from conducting certain “preconstruction activities” in connection with the Keystone XL pipeline until the U.S. Department of State completed supplemental environmental review in response to the court’s November 2018 order enjoining work on the pipeline. After TransCanada sought to narrow the scope of the injunction, the court initially allowed TransCanada to proceed with certain activities and, in the December 7 order, also allowed TransCanada to go ahead with certain surveying activities and to maintain a security presence. The court found, however, that the plaintiffs had established all four prongs justifying a permanent injunction barring the preconstruction activities, which included preparation of off-right-of-way pipe storage and contractor yards and transportation, receipt, and off-loading of pipe at storage yards. In considering whether such activities would cause irreparable harm, the court said allowing the preconstruction activities to go forward before the State Department finished its review “could skew the Department’s future analysis and decision-making regarding the project.”

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The federal district court for the District of Montana vacated the record of decision issued for the presidential permit for the Keystone XL pipeline and enjoined further construction or operation of the pipeline until the U.S. Department of State completes supplemental environmental review. The court found that the Department of State failed to comply with the National Environmental Policy Act (NEPA) and the Administrative Procedure Act when it reversed the Obama administration’s denial of the permit without providing a reasoned explanation for disregarding the Obama administration’s factual findings concerning climate change and the U.S.’s role in contributing to and addressing climate change. The court also found that the Department had not taken the hard look required by NEPA with respect to several issues, including the effects of current low oil prices on the project’s viability and the cumulative effects of greenhouse gas emissions from the Alberta Clipper pipeline expansion project and Keystone.

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In lawsuits challenging the presidential permit for the Keystone XL pipeline, the federal district court for the District of Montana ruled that the federal defendants must supplement the environmental impact statement to consider the impacts of an alternative route approved by the Nebraska Public Service Commission. The court concluded that the National Environmental Policy Act (NEPA) required supplementation in this situation where ongoing federal action remained and the defendants had not analyzed the alternative. The court said it would address Endangered Species Act arguments and other remaining issues in a future order.

On April 16, 2018, the federal district court for the District of Montana ordered the federal defendants to complete the administrative record or provide a privilege log in pending challenges to the presidential permit granted in March 2017 for the Keystone XL Pipeline. The court found that the plaintiffs had rebutted the presumption of completeness of the administrative record by pointing to specific documents that were missing and that the federal defendants’ failure to provide the whole record also was evidenced by their earlier supplementation of the record after the court required that they produce documents or prepare a privilege log for documents dated from January 26, 2017 to March 23, 2017. In addition, the court rejected the defendants’ argument that internal agency communications and drafts could not comprise part of the administrative record. Recognizing the burden imposed on the defendants, the court required the plaintiffs to provide a “reasonable list” of no more than 50 search terms to narrow the scope of inquiry. The parties also agreed that the date range for the additional document production would be limited to May 2012 to November 2015.

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The federal district court for the District of Montana denied motions to dismiss lawsuits challenging the presidential permit for the Keystone XL Pipeline. The court rejected the federal defendants’ and intervenor TransCanada Corporation’s (TransCanada’s) contention that issuance of the permit was unreviewable presidential action. The court found that President Trump had waived any authority he retained to make the final decision on the presidential permit when he issued a presidential memorandum on the Keystone XL Pipeline on January 24, 2017. The court said the State Department had taken final agency action when it published the record of decision and national interest determination for the pipeline and issued the presidential permit. The court also found that the federal defendants and TransCanada had not met their burden of establishing that Congress had committed to agency discretion the State Department’s determinations. In addition, the court found that the plaintiffs had alleged procedural injuries that could be redressed through the procedural remedy of adequate review under the National Environmental Policy Act (NEPA). The plaintiffs alleged, among other claims, that the defendants failed to adequately disclose climate impacts and failed to consider alternatives that would obviate the need for more crude oil. The court also allowed an Endangered Species Act claim to proceed.

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The federal government filed a motion to dismiss a lawsuit challenging the presidential permit for Keystone XL pipeline. The federal government argued that the court lacked jurisdiction to review issuance of a presidential permit. In addition, the government argued that the plaintiffs lacked standing to make their Endangered Species Act (ESA) claim as well as claims under the Migratory Bird Treaty Act (MBTA) and the Bald Eagle and Golden Eagle Protection Act (Eagle Act). The government also asserted that the MBTA and Eagle Act claims were barred by controlling precedent.