TransCanada Keystone Pipeline, LP v. Kerry

After the Trump administration granted a presidential permit for the Keystone XL pipeline, the federal district court for the Southern District of Texas granted TransCanada Keystone Pipeline, LP and a related entity’s motion for voluntary dismissal of their lawsuit challenging the Obama administration’s denial of the permit.

After President Trump issued a <a href="https://www.gpo.gov/fdsys/pkg/FR-2017-01-30/pdf/2017-02035.pdf">presidential memorandum</a> inviting TransCanada Keystone Pipeline, LP (TransCanada) to re-apply for State Department approval of the Keystone XL pipeline, the federal district court for the Southern District of Texas abated TransCanada’s challenge to the Obama administration’s denial in November 2015 of a presidential permit for the pipeline’s cross-border facilities. The presidential memorandum directed the State Department to reach a final decision on the permit within 60 days of TransCanada’s resubmission of its application. TransCanada resubmitted the application on January 26, 2017. Finding that the State Department’s decision could render TransCanada’s claims moot, the court abated the action for 90 days (until May 1, 2017) to allow TransCanada time to obtain the State Department’s decision. The court indicated it would reinstate the case after the 90 days expired and adjudge any remaining issues.

TransCanada Keystone Pipeline, LP and TC Oil Pipeline Operations Inc. (TransCanada) filed a complaint in the federal district court for the Southern District of Texas alleging that the president could not prohibit the development of the Keystone XL pipeline based on a belief that approval of the pipeline would undermine U.S. influence in international climate change negotiations. The lawsuit stemmed from the announcement on November 6, 2015 that Secretary of State John F. Kerry had denied a presidential permit to enable the construction of cross-border facilities for the proposed Keystone XL pipeline. The complaint said that the prohibition of the pipeline’s development was unauthorized by statute, was contrary to express congressional actions, and was an unprecedented exercise of unilateral presidential authority to prohibit domestic and foreign commerce transacted through a cross-border facility. TransCanada also contended that the actions unlawfully exceeded the executive’s constitutional powers and encroached on congressional power to regulate foreign and domestic commerce. The complaint alleged that United States’ review of the Keystone XL pipeline had concluded that the pipeline would not increase greenhouse gas emissions, but that the Secretary of State’s November 2015 determinations had “reasoned that the government must ‘prioritize actions that are not perceived as enabling further GHG emissions globally”’ and had relied on the “purely symbolic role a permit denial would play abroad” as the basis for denying the permit.