Nov 092018

Washington Post

By Fred Barbash, Allyson Chiu and  Juliet Eilperin


A federal judge temporarily blocked construction of the controversial Keystone XL pipeline, ruling late Thursday that the Trump administration had failed to justify its decision granting a permit for the 1,200-mile long project designed to connect Canada’s oil sands fields with Texas’s Gulf Coast refineries.


The judge, Brian Morris of the U.S. District Court in Montana, said the State Department ignored crucial issues of climate change to further the president’s goal of letting the pipeline be built. In doing so, the administration ran afoul of the Administrative Procedure Act, which requires “reasoned” explanations for government decisions, particularly when they represent reversals of well-studied actions.

It was a major defeat for President Trump, who attacked the Obama administration for stopping the project in the face of protests and an environmental impact study. Trump  signed an executive order  two days into his presidency setting in motion a course reversal on the Keystone XL pipeline, as well as another major pipeline, Dakota Access.


The ruling highlights a broader legal vulnerability in the Trump administration’s push to roll back Obama-era environmental protections. Since Trump took office, federal courts have found repeatedly that his agencies have short-circuited the regulatory process in areas ranging from water protections to chemical plant safety operations. Robust environmental and administrative procedure laws, many dating back to the 1970s, have given the administration’s opponents plenty of legal ammunition.


Thursday’s decision does not permanently block a federal permit for Keystone XL, a project of the Calgary-based firm TransCanada. It requires the administration to conduct a more complete review of potential adverse impacts related to climate change, cultural resources and endangered species. The court basically ordered a do-over.


In a 54-page opinion, Morris hit the administration with a familiar charge that it disregarded facts, facts established by experts during the Obama administration about “climate-related impacts” from Keystone XL. The Trump administration claimed, with no supporting information, that those impacts “would prove inconsequential,” Morris wrote. The State Department “simply discarded prior factual findings related to climate change to support its course reversal.”


It also used “outdated information” about the impact of potential oil spills on endangered species, he said, rather than “’the best scientific and commercial data available.’”

“Today’s ruling makes it clear once and for all that it’s time for TransCanada to give up on their Keystone XL pipe dream,” said Sierra Club Senior Attorney Doug Hayes in a statement. The lawsuit prompting Thursday’s order was brought by a collection of opponents, including the indigenous Environmental Network and the Northern Plains Resource Council, a conservation coalition based in Montana.

“The Trump administration tried to force this dirty pipeline project on the American people, but they can’t ignore the threats it would pose to our clean water, our climate, and our communities,” Hayes said.


Hayes told The Washington Post that the company had already been moving equipment into place in Montana and South Dakota with the intent of beginning construction in early 2019.

“It’s clear that this decision tonight will delay the pipeline significantly,” said Hayes, who noted that a proper environmental impact statement of this scope usually takes about a year to complete. “TransCanada does not have an approved pipeline at this point.”



Morris, a former clerk to the late Chief Justice William Rehnquist, was appointed to the bench by President Barack Obama.


His decision was one of scores of court rebukes to the Trump administration for decisions on the environment, immigration and transgender service in the military,  among other issues, all made hastily and, in the opinions of dozens of judges, without the “reasoned consideration” required by federal law. Also on Thursday, a federal appeals court ruled that Trump cannot immediately end  the Deferred Action for Childhood Arrivals program, which shields undocumented immigrants who were brought to the country as children from deportation.


The administration is appealing many of these rulings, and may challenge Thursday’s decision as well. The administration did not issue an immediate comment after the pipeline order.

In a statement Friday, TransCanada said it was not abandoning its plans to construct the pipeline. “We have received the judge’s ruling and continue to review it,” said company spokesman Terry Cunha. “We remain committed to building this important energy infrastructure project.”


The State Department has primary jurisdiction over the Keystone XL pipeline permit decision,  by virtue of its authority  to issue “presidential permits” for cross-border infrastructure projects.

The massive project remains one of the most controversial infrastructure proposals in modern American history, with its proponents and critics dueling in court and on the streets for a decade.

It aims to extend TransCanada’s existing Keystone pipeline, which was completed in 2013. Keystone XL (the initials stand for “export limited”) would transport up to 830,000 barrels of crude oil per day from Alberta, Canada, and Montana to Oklahoma and the Gulf Coast. In the United States, the pipeline would stretch 875 miles through Montana, South Dakota and Nebraska, with the rest continuing into Canada.



It has met sustained opposition from environmental advocacy groups, as well as from Obama, who rejected it three years ago on the grounds that it would accelerate climate change.

Activists argue the pipeline would be especially damaging to the climate because it would mean extracting thick, low-quality oil from Canada’s oil sands, with lots of tree-cutting and energy consumption in the process, which would increase greenhouse gas emissions. Native American groups in Montana and elsewhere fought the Keystone project as well, saying its route failed to adhere to historical treaty boundaries and would impinge on their water systems and sacred lands.


In 2015, on the eve of the international climate talks in Paris, the Obama administration appeared to bring an end to the seven-year-long saga when it announced it was halting construction of the pipeline, arguing that approval would compromise the country’s effort to reduce its greenhouse gas emissions. The United States, Obama said, was now a “global leader when it comes to taking serious action to fight climate change.”


“And frankly, approving this project would have undercut that global leadership,” he said, adding that the “biggest risk” the United States faced was “not acting.”

The decision to deny the pipeline permit came after the completion of a  long-awaited final environmental impact statement  — 11 volumes of analysis released in 2014.

It was this 2014 assessment that the State Department, under the direction of Trump’s January 2017 presidential memorandum, used to make its decision to approve the pipeline, The Post reported. According to the department, “there are no substantial changes or significant new information which would affect the continued reliability” of the report.

Morris said, however, that there were indeed changes since the 2014 assessment and that the Trump administration failed to consider them. He included among them pipeline leaks, the expansion of another pipeline called the Alberta Clipper and shifts in oil markets. Those could alter the overall impact of Keystone XL and should have been considered by the government.

Among the judge’s findings:

  • The State Department, in issuing the permit, failed to “analyze the cumulative greenhouse gas emissions” of the Keystone project and the expanded Alberta Clipper pipeline. It “ignored its duty to take a ‘hard look’ at these two connected actions.”
  • The department “acted on incomplete information regarding” the potential damage to cultural resources in Indian territory along the route. “The Department appears to have jumped the gun.”
  • The department failed to make a fact-based explanation for its course reversal, “let alone a reasoned explanation. …’An agency cannot simply disregard contrary or inconvenient factual determinations that it made in the past, any more than it can ignore inconvenient facts’ ” in the present, he wrote, quoting judicial precedents.
  • The department’s analysis that “climate-related impacts” from Keystone “would prove inconsequential” needed a “reasoned explanation.” It did not provide one.


Jackie Prange, senior attorney with the Natural Resources Defense Council, called the ruling a “huge win” not just for the environmental activists and tribal groups who have been fighting the pipeline, but for “anyone who cares about the rule of law and holding this administration to the facts.”

“It’s emblematic of what we’re seeing with the Trump administration, which is a very fast and sloppy reversal of prior decisions … in a way that doesn’t adhere to the rule of law,” Prange told The Post. “That’s why we keep winning in the court.”

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