The U.S. 9th Circuit Court of Appeals threw out a Montana federal judge’s injunction blocking construction of the Keystone XL oil pipeline on the basis that new executive orders from the Trump administration made the injunction moot.
In November 2018, U.S. District Court Judge Brian Morris of Great Falls granted an injunction, preventing construction of the pipeline, finding that the State Department environmental study used to grant the 2017 permit violated the National Environmental Policy Act in large part by ignoring or understating the cumulative environmental effect of greenhouse gas emissions related to the pipeline, among other issues.
Morris also previously ruled in 2017 against attempts by the State Department to throw out the lawsuit on the basis of executive authority.
The 9th Circuit’s decision came on June 6 after the Trump administration issued two separate executive orders: one to rewrite how projects like Keystone XL are permitted, and a second to grant a new permit for the long-delayed pipeline.
The appeal’s court ruling did not address the merits of Trump’s new permit, but rather cited a 1950 legal precedent addressing what to do with a ruling appealed to a higher court if the case becomes moot — such as Trump revoking the injuncted construction permit and granting a new one. In such a case, the established practice is to throw out the lower court’s ruling.
The 9th Circuit had previously upheld Morris’ ruling on March 15, when pipeline company TC Energy, formerly known as TransCanada, requested the injunction be put on hold pending appeal. Two weeks after that request was denied, Trump granted the pipeline the new permit via executive order.
Trump’s new permit does not mention the State Department, which had previously held permitting authority over projects crossing international borders since President Lyndon B. Johnson’s executive order in 1968. Trump superseded Johnson’s executive order with a new executive order on April 10, giving all decision-making authority over such permits to the president.
Opponents of the pipeline, which would carry oil mined from the tar sands of Alberta through the Missouri River Basin to a junction in Steele City, Nebraska, have called swapping the permit a loophole to get around Morris’ injunction. Natural Resource Defense Council senior attorney Jackie Prange called it an “extraordinary misuse of executive power to disregard the courts and environmental laws.”
According to an analysis by Harvard Law School’s Environmental and Energy Law Program, “this new process with the president as the sole, final decisionmaker is set up so that there is no way to argue that the issuance of a permit is a final agency action, subject to judicial review under the APA and required to comply with statutes like NEPA.”
Two plaintiffs from the lawsuit resulting in the injunction, the Indigenous Environmental Network and North Coast Rivers Alliance, filed a new lawsuit in Montana federal court in April against Trump’s new permit, citing the issue of separation of powers under the Constitution. They claim Trump did not have the authority to permit TC Energy to build on land near the Canadian border because it is administered by the Bureau of Land Management under the direction of Congress, not the executive office.
Caitlin McCoy, the author the Harvard Law analysis, said the lawsuit presents the potential for continued delays in Keystone XL’s construction “if the court rules that the president only has authority over the border crossing itself and that the rest of the land mentioned in the presidential permit is under BLM authority only.”
The federal government has until June 27 to respond.
Despite the court victory, legal filings by TC Energy in March state the delay caused by the injunction means the company has already missed the opportunity to build Keystone XL during the 2019 construction season.
Montana Petroleum Association executive director Alan Olson said there may be some pre-construction activities, such as staging equipment, but with all the prep work needed, there’s not enough time to get everything in place to build while the weather remains suitable for construction.
“It’s pretty hard to build a pipeline in January and February,” he said.