On Friday, December 7, 2018, the Honorable Brian Morris, United States District Judge for the District of Montana in Great Falls, issued a Supplemental Ruling in favor of the lead Plaintiffs in the litigation to stop the Keystone XL (KXL) Pipeline–the Indigenous Environmental Network (IEN) and North Coast Rivers Alliance (NCRA), and other groups. Judge Morris’s 16-page Supplemental Order denies TransCanada’s motion to relax the Court’s November 8 Judgment that overturned the Trump Administration’s approval of the KXL Pipeline and issued a permanent injunction against its construction. Judge Morris specifically rejected TransCanada’s request to engage in the following construction activities: (1) preparation of pipe storage and contractor yards, (2) transportation, receipt and off-loading of pipe at storage yards, (3) preparation of sites for worker camps, and (4) mowing and patrolling areas of the pipeline right-of-way to discourage migratory bird nesting. Judge Morris only allowed TransCanada to conduct limited cultural, biological, civil and other surveys that do not harm the environment, and to maintain security at existing TransCanada sites.
These rulings prevent TransCanada from continuing with construction of the Keystone XL Pipeline, and protect irreplaceable cultural and environmental resources from harm. The IEN and NCRA Plaintiffs hailed these rulings as a complete victory for the environment and for the rule of law.
Judge Morris’s Supplemental Order clarifies and strengthens his landmark ruling on November 8 that President Trump violated federal environmental laws when his Administration approved the KXL Pipeline. Judge Morris ruled that approval of the KXL Pipeline violated the National Environmental Policy Act (NEPA) and other federal environmental laws because: (1) President Trump disregarded prior factual findings by former Secretary of State John Kerry that the KXL Pipeline would unjustifiably worsen climate change, (2) failed to conduct an adequate survey of Native American cultural resources that would be harmed by the pipeline, (3) failed to provide adequate modeling of potential oil spills and their impacts on water resources, (4) failed to analyze the cumulative effects of this project on greenhouse gas emissions, and (5) failed to address the effects of current oil prices on the viability of the project.
The Court’s December 7 Supplemental Order also clarifies and strengthens Judge Morris’s ruling on August 15 that the Trump Administration’s approval of a new pipeline route through Nebraska likewise violated NEPA. The Court in August ordered the Trump Administration to conduct further environmental review of the new Nebraska route, and rejected every argument raised by the Trump Administration and the pipeline’s promoter, TransCanada, to excuse their failure to conduct this additional review.
This litigation started on March 27, 2017 when IEN and NCRA had filed suit in Federal District Court in Great Falls, Montana challenging the Presidential Permit issued by President Trump allowing construction and operation of the Keystone XL Pipeline. At the direction of President Trump, the U.S. Department of State had issued a Presidential Permit to TransCanada Keystone Pipeline, L.P. on March 23, 2017. The proposed Keystone XL Pipeline would transport up to 830,000 barrels per day of crude oil from Alberta, Canada and the Bakken Shale Formation in Montana over 875 miles to existing pipeline facilities near Steele City, Nebraska, from which the oil would be delivered to Cushing, Oklahoma, and the Gulf Coast region. The Keystone XL Pipeline would pose grave risks to the environment, including the climate, water resources, and wildlife, and to human health and safety.
Established in 1990, IEN was formed by grassroots Indigenous peoples and individuals to address environmental and economic justice issues both in North America and throughout the planet. IEN’s Executive Director Tom B.K. Goldtooth has been at the forefront of Native and environmental leaders who have called upon President Trump to renounce the KXL Pipeline. “KXL would be a disaster for the Northern Plains and a catastrophe for Mother Earth,” Mr. Goldtooth stated. “Our scientists have confirmed that carbon dioxide levels have now exceeded 400 parts per million, which many believe is the ‘tipping point’ beyond which global warming will accelerate beyond our control. We have already lost most of the glaciers in our great Glacier National Park, and sea levels are rising throughout the globe. The dirty tar sands crude oil that KXL would transport requires far more energy to process than other sources of petroleum, and its extraction has already destroyed hundreds of square miles of boreal forests and wetlands in Alberta. We need to keep our fossil fuels in the ground and shut down extraction of highly polluting tar sands at their source,” he added.
NCRA is an association of conservation leaders from the western and northern United States and Canada which has advocated for decades on behalf of rivers and watersheds in jeopardy throughout North America. Its President, Frank Egger, has been fighting to save salmon and other endangered fishes in the Pacific Northwest for five decades. “Oil, water and fish do not mix. KXL poses an unacceptable risk to the Missouri River, Yellowstone and Cheyenne rivers and their fish and wildlife. No oil pipeline is safe. One major oil spill, and these rivers and their adjacent aquifers would be polluted for generations,” added Mr. Egger.
Stephan Volker, attorney for IEN and NCRA, stated that “We are pleased that Judge Morris has overturned the Trump Administration’s approval of this environmentally disastrous project, and rejected TransCanada’s attempt to weaken that ruling. The Court’s landmark ruling in November rejected the Trump Administration’s false claim that the KXL Pipeline would not worsen global warming and found that the Trump Administration’s environmental review failed to adequately address this project’s impacts on Native American cultural resources, greenhouse gas emissions, and the hundreds of rivers and groundwater basins that it threatens to harm with oil spills.” Mr. Volker explained that “Because President Trump has turned his back on the Native American community and protection of our clean water, endangered fisheries, and indeed, survival of the Planet itself, we asked the Federal Courts to order him to comply with our nation’s environmental laws. Judge Morris has repeatedly rejected attempts by TransCanada and the Trump Administration to weaken his strong, fair and critically important orders. His rulings have applied the law fairly and fully to protect our irreplaceable lands and waters and the Native American community that depends on them from the risky and unneeded KXL Pipeline. Alternatives including renewable energy and conservation must be given full and fair consideration to protect future generations from the ravages of global warming,” stated Mr. Volker.
Judge Morris’s ruling rejecting TransCanada’s request to relax the permanent injunction against construction of the Keystone XL Pipeline is attached in PDF format. Additional documents pertaining to the litigation can be obtained from the Volker Law Offices.