The Keystone XL Pipeline Was Blocked By A Judge With A Message For Trump
The Keystone XL Pipeline was due to begin construction next year. President Donald Trump had approved it just after he entered office, reversing an Obama-era decision to halt its development. But the tide turned yet again on Thursday: A Montana-based federal judge blocked the Keystone Pipeline and left Trump a message in the court documents — basically, that facts matter.
The judge ruled in favor of a lawsuit brought against the government and TransCanada, the company behind the pipeline, by the Indigenous Environmental Network and North Coast River Alliance. Keystone XL would carry tar sand oil between Nebraska and Canada (other sections have already been built that stretch to the Gulf of Mexico). Pipeline opponents worry that tar sands could pollute the waterways Keystone would cross and that the production of the oil would add significant amounts of carbon to the atmosphere, worsening the impact of climate change.
In the court documents, Judge Brian Morris argued that the State Department did not provide adequate reason for changing its former ruling because it hadn't thoroughly assessed the pipeline's environmental consequences. He cited a U.S. Supreme Court ruling that forbids an agency from conveniently dismissing facts it has validated in the past. Morris blocked further construction on Keystone XL until the government provides a complete review that takes these facts into consideration.
Now, administrations are allowed to change policies, as the court documents note. However, the judge asserts that the State Department "did not merely make a policy shift." Instead, it ignored the facts about environmental impact laid out in President Barack Obama's "record of decision" about halting the pipeline construction.
And that's not allowed, in part because of two major court cases that Morris cites: 2009's FCC v. Fox Television Stations, ruled on by the Supreme Court, and 2015's Org. Vill. of Kake v. U.S. Dept. of Agric., ruled on by the 9th Circuit. The first requires agencies to justify their policy reversals by providing "factual findings that contradict those which underlay its prior policy." The second declares that agency decisions are "arbitrary" if their justification "runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise."
Morris' argument is that the State Department's pipeline approval did not sufficiently disprove the facts the Obama administration laid out in its order about why the pipeline posed a dire threat to the environment. Morris also noted that the Trump administration didn't update its analysis about Keystone XL's benefits to reflect current oil prices. That makes Trump's State Department action "arbitrary," and therefore unlawful at the present time, he declared.
"Today's ruling is a victory for the rule of law," said Dena Hoff of the Northern Plains Resource Council in a Thursday statement, "and it's a victory for common sense stewardship of the land and water upon which we all depend." The Sierra Club's Doug Hayes added, "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."
Construction on the pipeline would have begun in 2019. The judge's order does not permanently ban the pipeline; theoretically, the stay could be lifted if the Trump administration provided a thorough justification for its action, including a careful assessment of environmental impact.