On November 8th – Judge Brian Morris of the U.S. District Court for Montana, ruled that the Trump administration violated U.S. environmental laws when they approved the federal permit for the TransCanada Keystone XL tar sands pipeline project. Judge Morris blocked the federal government and TransCanada “from engaging in any activity in furtherance of the construction or operation of Keystone” until the government revised it’s environmental review. According to Morris, the State Department “did not merely make a policy shift in its stance on the United States’ role on climate change. It simultaneously ignored” and “discarded prior factual findings related to climate change to support its course reversal” without “reasoned explanation.”
The next day Donald Trump addressed reporters on the White House lawn saying “It was a political decision made by a judge. I think it’s a disgrace… it’s 48,000 jobs – I approved it..,” The President went on to say “…and I guess they’ll end up going to the 9th Circuit as usual. We’re slowly putting new judges in the 9th Circuit”, expressing not only his dislike in the “liberal” 9th District Court (which is the Court that ruled against his travel ban), suggesting they could appeal and the “conservative” controlled Supreme Court may have the final say on the issue.
However, this decision is a hit to TransCanada and the pipeline project, which investors are already questioning the overall investment value long term against market prices. While, TransCanada has yet to make a “Final Investment Decision” on whether they will pursue the appeal and move forward, it’s important to note that the argument from the Environmentalists side is that the 48,000 “jobs created” are actually temporary jobs that are not sustainable and will have no long term benefit to the economy or nation, but rather the private interests of TransCanada and their investors. There is also the argument that the pipeline is being used to transport to the Gulf Coast and then prepared for Export.
The U.S. District Court Judge ruled in favor of the Plaintiffs, stating that “the Department violated the Administrative Procedure Act (“APA”), the National Environmental Policy Act (“NEPA”), and the Endangered Species Act (“ESA”) when it published its Record of Decision (“ROD”) and National Interest Determination (“NID”) . and issued the accompanying Presidential Permit to allow defendant-intervenor TransCanada Keystone Pipeline, LP (“TransCanada”) to construct a cross-border oil pipeline known as Keystone XL (“Keystone”).
Now the U.S. Department of State has to re-review and revise the project’s “environmental impact statement” to:
- evaluate changes in oil prices since 2014 on the markets that have occurred since the previous review was completed in 2014
- consider the climate impacts of the Keystone XL and other tar sands pipeline projects
- study the cultural resources on the pipeline’s route
- examine the detriment of potential oil spills on water and wildlife
The State Department has to also provide a reasonable explanation on its decision to approve the permit after it was previously denied by the Barack Obama administration 3 years ago based on the same data and information provided. The Court ruled in favor of the Plaintiffs that NEPA “serves as the basic national charter for protection of the environment” and “requires federal agencies to prepare a detailed statement for any major Federal actions significantly affecting the quality of the human environment.”
The Court ruled in favor of the Plaintiffs that “the Department violated NEPA by failing to consider a reasonable range of alternatives in approving Keystone.” Furthermore the “Plaintiffs allege that the Department unreasonably dismissed alternatives that did not satisfy TransCanada’s purpose. Plaintiffs further contend that the Department failed to consider feasible, environmentally beneficial alternatives”, and that the Department “only analyzed alternatives that satisfied TransCanada’s private needs.”