President Trump’s attempt to streamline approval of two contentious oil pipelines may spark a legal powder keg as opponents of the projects vow to battle it out in the courtroom.
The presidential memorandums, signed yesterday in the Oval Office, do not grant final approval or authorize construction for Dakota Access or Keystone XL. Instead, one orders expedited review for Keystone XL if developers resubmit their application, and another directs the Army Corps of Engineers to reconsider its December decision to perform additional environmental review for the $3.8 billion Dakota Access project.
Dakota Access opponents, who are already engaged in litigation, are prepared to challenge any reversal of the Obama administration’s direction on the hotly contested project.
"The previous administration correctly found that the process violated tribal treaties and that a further analysis of route alternatives needed to be conducted," Earthjustice attorney Jan Hasselman, who is representing the Standing Rock Sioux Tribe, told E&E News. "This administration arbitrarily reversed that before they even have a new secretary of the Army in office. They’re breaking the law, and we’re going to take them to court."
Tribal leaders also vowed to take legal action to block construction activity, citing environmental laws and treaty rights. Cheyenne River Sioux Chairman Harold Frazier accused Trump of trying to "steamroll" tribal treaties, and the National Congress of American Indians expressed concern that the presidential memo "circumvents the legal process for environmental review."
Pipeline advocates, meanwhile, say Trump’s action merely corrects course after the Obama administration interfered with Army Corps plans to greenlight the project. With 95 percent of construction complete, the 1,200-mile line’s main missing link is a stretch across Lake Oahe, a dammed section of the Missouri River near the Standing Rock Indian Reservation in North Dakota.
The Obama administration last year responded to swelling protests by withholding a federal easement for the pipeline to cross the lake, ultimately deciding to launch an in-depth environmental impact statement to consider risks and alternative routes (Energywire, Dec. 5, 2016).
Yesterday’s executive action directs the Army Corps to quickly determine whether the EIS is necessary and "review and approve in an expedited manner" the Lake Oahe easement — so long as it is consistent with the Mineral Leasing Act, Clean Water Act, and Rivers and Harbors Act.
Mechanics of a Dakota Access challenge
James Coleman, an energy law professor at Southern Methodist University, noted that Trump’s memo is carefully worded to avoid direct challenges. It includes layers of legal disclaimers, calling on Army Corps officials to review the Obama administration’s decisions "to the extent permitted by law and as warranted, and with such conditions as are necessary or appropriate."
"The memorandum goes out of its way to say that it’s not changing the law, which makes it harder [to challenge]," he said. "It will also be important what the Army Corps of Engineers says when it issues that easement. It’s going to want to give some justification for why it’s again reversing course."
Hasselman argued that there could be no real justification for expedited approval.
"This is a garden-variety Administrative Procedure Act issue that agency action has to be reasoned," he said. "It has to be based on the appropriate statutory factors, and it has to comply with all the required procedures."
The Dakota Access pipeline’s final easement, he said, cannot be legally approved under the Mineral Leasing Act until the Army Corps conducts additional review to consider the impacts on the Sioux and tribal treaty rights.
Hasselman plans to challenge the easement, if issued, at the U.S. District Court for the District of Columbia, where a Dakota Access lawsuit is already pending. He’ll file the challenge as an amended complaint within the existing litigation rather than opening a new case. That means the issue will still go before Judge James Boasberg, an Obama appointee who has rejected previous attempts to freeze pipeline construction.
Jim Murphy, senior counsel at the National Wildlife Federation, said challenges to the easement would likely center on core issues that have already been raised, including whether the Army Corps’ review of the pipeline met the requirements of the National Environmental Policy Act and the National Historic Preservation Act. And Boasberg might be receptive to claims that easement approval now is purely political, he said.
"Certainly, the fact that the corps itself has made a decision that there is reason to reject this and that there is more information that they felt was needed is something that may be compelling to a judge, especially if he’s inclined to maybe view the reversal and the direction on the reversal as political," he said. "Ideally, the agency should look at the facts and look at the law and not just act under the whims of a presidential order. A judge may look at it differently through that lens."
KXL a ‘different animal’
When it comes to challenging the approval of the projects in court, Keystone XL is a "very different animal" from Dakota Access, said Patrick Parenteau, an environmental law professor at Vermont Law School.
"I don’t see an effort to reverse a Trump decision to approve Keystone getting very far in U.S. courts," Parenteau said. "If Trump’s determined to approve Keystone and if there’s still a market — I suppose there is — then it’s probably going to happen."
Trump’s memo invites pipeline builder TransCanada Corp. to resubmit its application to build the pipeline to transport crude from Alberta’s oil sands to refineries along the Gulf of Mexico. It directs the State Department to issue a decision within 60 days of the company’s submittal.
The government would approve KXL through what’s known as a presidential permit, a process for cross-border oil pipelines that was formalized through a series of executive orders beginning with a directive issued in 1968 by President Lyndon Johnson.
Courts have ruled that those types of permitting decisions are unreviewable. For example, a federal district judge in Minnesota threw out a lawsuit in 2015 challenging the Alberta Clipper crude oil pipeline on the grounds that the court didn’t have jurisdiction.
"Past cases have suggested that presidential permit decisions are not subject to judicial review because there’s no law that applies to them," said Jim Rubin, an environmental attorney at Dorsey & Whitney.
The quirks with the presidential permit likely rule out challenging the pipeline’s approval under the National Environmental Policy Act, which requires environmental reviews of major federal actions, said Bill Snape, senior counsel at the Center for Biological Diversity.
"I’m not sure at this point what the NEPA process is going to yield us as an action at the president," he said. "This is why electing the president matters. The president does get some authority to decide this international permit."
But Snape said that there may be other ways to stop the pipeline through challenging the issuance of separate water permits for the project or bringing Endangered Species Act claims. He said he also expected to see people on the ground continuing to challenge government attempts to seize land that the pipeline must cross.
Outside the courts, Snape said that civil disobedience could slow the project.
"This is a blow. It’s not what we wanted," he said. "But the fight is far, far from over."
