A federal judge’s ruling this week blocking the controversial Keystone XL pipeline constitutes a rebuke of President Donald Trump, who signed an executive order days into his presidency restarting the project after the Obama administration had halted it over environmental concerns.
U.S. District Court Judge Brian Morris, of Montana, issued a 54-page ruling that boiled down to a simple message: Facts matter.
Morris wrote that the State Department had “simply discarded prior factual findings related to climate change” from the Obama administration in its zeal to further Trump’s goal of letting the pipeline move forward. 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.
“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, Morris wrote, citing case law.
The decision highlights a broader legal vulnerability in the Trump administration’s push to roll back Obama-era environmental protections. Since Trump took office, federal courts repeatedly have found 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. But it requires the administration to conduct a more complete review of potential adverse impacts related to climate change, cultural resources and endangered species, as well as re-evaluate the effect of current oil prices on the viability of the pipeline. The court basically ordered a do-over.
On Friday, President Trump called the judge’s ruling “a political decision.”
“I think it’s a disgrace,” he told reporters, adding that the pipeline could generate thousands of jobs. “I approved it; it’s ready to start.”
Trump suggested that the government likely would appeal the case to the United States Court of Appeals for the Ninth Circuit. That court previously has dealt his administration setbacks in its efforts to deport young immigrants brought illegally to the country as children, as well as its attempt to dismiss a lawsuit brought by 21 young people who argue the government must do more to combat climate change.
TransCanada also said it has no plans to abandon its efforts to construct the pipeline. “We have received the judge’s ruling and continue to review it,” company spokesman Terry Cunha said in a statement. “We remain committed to building this important energy infrastructure project.”
The decade-long saga over the Keystone XL pipeline has had more detours than the project’s nearly 1,200-mile proposed path from Hardisty, Alberta, to Steele City, Nebraska. Envisioned in 2008 as a way to connect Canada’s oil sands fields with Gulf Coast refineries, the controversial project has died and been resurrected time and again.
Native American tribes and Oklahoma oil magnates have weighed in. Opponents chained themselves to a truck carrying pipe and got arrested. Residents from Nebraska to South Dakota to Texas have wrangled with the company behind the project over land rights. Conservationists raised concerns about potential effects on wildlife.
Even now, the massive project remains one of the most controversial infrastructure proposals in modern American history.
The Keystone XL (the initials stand for “export limited”), which aims to extend TransCanada’s existing Keystone pipeline, would transport up to 830,000 barrels of crude oil per day through a 36-inch pipe 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.
The Obama administration approved the southern leg of the pipeline that began operations in January 2014, easing a bottleneck between Cushing, Oklahoma, and refineries on Texas’ Gulf Coast.
The project has met sustained opposition from environmental advocacy groups, who 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 tree-cutting and energy consumption in the process.
In 2015, on the eve of the international climate talks in Paris, the Obama administration announced it was halting construction on the remainder of the pipeline, arguing that approval would compromise America’s effort to reduce its greenhouse gas emissions. The United States, Obama said, was now a “global leader” in pressing for climate action. “And frankly, approving this project would have undercut that global leadership,” he said.
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 presidential memorandum in January 2017, largely relied upon to make its decision to approve the pipeline. According to the department, “there are no substantial changes or significant new information which would affect the continued reliability” of the report.
In his ruling this week, Morris said the Trump administration had disregarded facts established by experts during the Obama era about potential climate-related impacts from Keystone XL. The Trump administration claimed, with no supporting information, that those impacts “would prove inconsequential,” Morris wrote.
It also used “outdated information” about the impact of potential oil spills on endangered species, he said, rather than the best available scientific and commercial data.
“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,” Sierra Club Senior Attorney Doug Hayes said in a statement. The lawsuit prompting this week’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.
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 said. “That’s why we keep winning in the court.”
With the Keystone XL once again on hold and a judge ordering the Trump administration to redo the reasoning behind its approval, the pipeline’s future remains as uncertain as ever.
“Approval of this project was always about a race against time,” said Keith Benes, a former senior State Department lawyer who oversaw the project’s environmental review under the last administration. “Oil companies wanted to get it built before lack of pipeline capacity was restricting production. Opponents wanted to delay it until it was no longer needed as climate policies took hold. The only question is, how much longer is it until it is no longer needed?”
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