Then-president Barack Obama rejected the pipeline in 2015 on climate change grounds, but President Donald Trump gave the project a green light shortly after his inauguration in 2017 via a Presidential Permit. Morris held Thursday that the Trump administration violated the Administrative Procedure Act and National Environmental Policy Act (NEPA) when it restarted the Pipeline construction without producing an updated and thorough environmental impact report.
The court said that the State Department’s analysis of the several environmental issues fell short of the “hard look” the NEPA required. Morris ordered the Department to supplement its 2014 environmental impact report in order to comply with its obligations under NEPA, including publishing:
The effects of current oil prices on the viability of Keystone;
The cumulative effects of greenhouse gas emissions from the Alberta Clipper expansion and Keystone;
A survey of potential cultural resources contained in the 1,038 acres not addressed in the 2014 Report; and
An updated modeling of potential oil spills and recommended mitigation measures.
According to the suit,
TransCanada’s permit applications had been denied two previous times, but on January 24, 2017, President Donald J. Trump signed a memorandum “invit[ing] TransCanada . . . to promptly re-submit its application to the Department of State for a Presidential permit for the construction and operation of the Keystone XL Pipeline.” Memorandum: Construction of the Keystone XL Pipeline, 82 Fed. Reg. 8,663, § 2 (Jan. 24, 2017) (“the Memorandum”). Unlike in the two previous permit applications, Defendants initiated no public process or environmental review of any kind for the third permit application.
Despite the lack of any public process and review, on March 23, 2017, the Department of State published its Record of Decision and National Interest Determination (“2017 Decision”). Plaintiffs’ Exhibit A; see 82 Fed. Reg. 16,467 (Apr. 4, 2017). Under Secretary of State for Political Affairs Thomas A. Shannon, Jr., granted TransCanada’s permit application and issued it a presidential permit (“the Permit”).
In granting this third application, Defendants reached the exact opposite conclusion as the previous administration on the very same record, in violation of the Administrative Procedures Act. 5. In granting this third application, there was no analysis of the trust obligation the federal government owes to the Rosebud Sioux Tribe and their unique water system, no analysis of the potential impact of the Pipeline on treaty rights, no analysis of the subpar leak detection system and the potential impact of spills on Rosebud Sioux Tribe’s members, and no analysis of the potential impact on the Rosebud Sioux Tribe’s cultural resources and historic properties in the path of the Pipeline, in violation of the National Environmental Policy Act and the National Historic Preservation Act [MORE]
The court held that the State Department did not violate the Endangered Species Act when it neglected a number of measures and effects, but it did order the Department to consider potential adverse impacts to endangered species from oil spills associated with Keystone in light of the updated data on oil spills and leaks.
Tom Goldtooth, Executive Director for one plaintiff, the Indigenous Environmental Network, said in a press release, “This is a win for Lakota, the Oceti Sakowin and other Tribal Nations, for the water, and for the sacredness of Mother Earth. This decision vindicates what we have been saying all along: Trump’s approval of this pipeline was illegal, violated environmental laws and was based upon fake facts.”