Indigenous Environmental Network v. U.S. Department of State

Filing Date: 2017
Case Categories:
Principal Laws:
Migratory Bird Treaty Act, Bald and Golden Eagle Protection Act, Endangered Species Act (ESA), National Environmental Policy Act (NEPA)
Description: Challenge to Trump administration approval of a presidential permit for the Keystone XL pipeline.
  • Indigenous Environmental Network v. U.S. Department of State
    Docket number(s): 18-36068
    Court/Admin Entity: 9th Cir.
    Case Documents:
    Filing Date Type File Action Taken Summary
    06/06/2019 Order Download Appeals dismissed as moot, district court judgments vacated, permanent injunction orders dissolved, and case remanded with instructions to dismiss district court actions as moot. Ninth Circuit Vacated District Court Judgments on Keystone XL Pipeline as Moot Due to New Permit Issued by Trump. Because President Trump issued a new permit for the Keystone XL pipeline project and revoked the previous permit, the Ninth Circuit Court of Appeals granted the federal government’s motion to dismiss as moot the appeal of a district court’s decisions finding lapses in the State Department’s initial approval of the project. The Ninth Circuit also vacated the district court judgments, dissolved the permanent injunction orders, and remanded the case with instructions to dismiss the district court actions as moot.
    05/14/2019 Statement Download Amended corporate disclosure statement filed by TransCanada.
    05/07/2019 Reply Download Reply filed by United States in support of motion to dismiss.
    05/07/2019 Reply Download Reply filed by TransCanada in support of motion to dismiss.
    04/23/2019 Opposition Download Combined opposition filed by Northern Plains Resource Council et al. to TransCanada's and federal defendants' motions to dismiss as moot.
    04/23/2019 Opposition Download Combined opposition filed by intervenors-appellees Rosebud Sioux Tribe and Fort Belknap Indian Community to motions to dismiss.
    04/17/2019 Opposition Download Partial opposition filed by Indigenous Environmental Network et al. to motions to dismiss filed by TransCanada and United States.
    04/08/2019 Motion Download Motion filed by TransCanada to dismiss the consolidated appeals, vacate the district court’s judgments, void its injunction and final orders, and remand with instructions to dismiss the case as moot.
    04/08/2019 Motion to Dismiss Download Motion filed by United States to dismiss pending appeals and remand with instructions to dismiss as moot. Government and TransCanada Asked Ninth Circuit to Order Dismissal of Challenge to 2017 Permit. In the litigation challenging the March 2017 presidential permit, the federal government and TransCanada asked the Ninth Circuit to dismiss their appeals of the district court’s orders finding violations of NEPA and the Administrative Procedure Act. In their motions, the government and TransCanada argued that President Trump’s revocation of the presidential permit rendered the plaintiffs’ claims moot. They asked the Ninth Circuit to vacate the district court’s judgment and void the district court’s injunction on construction and certain preconstruction activities. Briefing on the motions was scheduled to be completed on May 7.
    04/02/2019 Order Download Rosebud Sioux Tribe and Fort Belknap Indian Community's motion to intervene granted.
    03/28/2019 Order Download Order issued setting briefing schedule.
    03/15/2019 Order Download Motion for a stay pending appeal denied. Ninth Circuit Declined to Lift Injunction Barring Keystone XL Construction and Preconstruction Activities; Trump Issued New Presidential Permit Intended to Be Unreviewable. On March 15, 2019, the Ninth Circuit Court of Appeals denied a motion by the Keystone XL pipeline developers to stay a district court order barring them from proceeding with construction and certain preconstruction activities. A Montana federal district court enjoined such activities pending the U.S. Department of State’s completion of additional environmental review in compliance with the court’s November 2018 order. In the order denying the stay, the Ninth Circuit characterized the jurisdictional questions as “complex” and found that the developers had not made “the requisite strong showing that they are likely to prevail on the merits.” Noting that the district court itself had narrowed the scope of its injunction, the Ninth Circuit found no abuse of discretion in the district court’s declining to stay the injunction.

    On March 29, 2019, however, President Trump issued a new presidential permit authorizing the pipeline’s construction and revoking the March 2017 permit that is the subject of the lawsuit. The new permit stated that it was granted “notwithstanding” a January 2017 presidential memorandum on which the district court relied to find that the March 2017 permit was not immune from review. The district court concluded that the January 2017 memorandum waived the president’s right to review the State Department’s decision on the permit and that the State Department’s decision was subject to judicial review. Neither the government nor the pipeline developer had applied to the district court or the Ninth Circuit for relief from the injunction as of April 1.
    03/06/2019 Amicus Brief Download Amicus brief filed in opposition to motion for stay pending appeal.
    03/04/2019 Opposition Download Opposition filed by Indigenous Environmental Network et al. to motion for stay pending appeal.
    03/04/2019 Opposition Download Opposition filed by Northern Plains Resource Council et al. to motion for stay pending appeal.
    02/21/2019 Motion Download Urgent motion for stay pending appeal filed by TransCanada Corporation and TransCanada Keystone Pipeline LP. In their stay motion in the Ninth Circuit, the Keystone developers focused on threshold jurisdictional issues, including the issue of whether the district court had erred in finding that the State Department’s issuance of a presidential permit for the project was subject to judicial review. The developers also argued that the scope of the district court’s injunction was impermissibly broad.
    02/13/2019 Motion to Intervene Download Motion for intervention filed by Rosebud Sioux Tribe and Fort Belknap Indian Community.
  • Indigenous Environmental Network v. United States Department of State
    Docket number(s): 4:17-cv-00029
    Court/Admin Entity: D. Mont.
    Case Documents:
    Filing Date Type File Action Taken Summary
    02/15/2019 Order Download Supplemental order regarding motion to stay issued. Montana District Court Largely Denied Keystone XL Developer’s Request to Conduct Off-Right-of-Way Activities During New Review. The federal district court for the District of Montana granted in part but largely denied a motion by the developers of the Keystone XL oil pipeline for a stay pending appeal of the injunction barring construction and preconstruction activities for the pipeline. The court enjoined work on the pipeline after finding that the Department of State violated the National Environmental Policy Act (NEPA) and Administrative Procedure Act when it reversed the Obama administration’s denial of a cross-border permit for the pipeline. In the stay motion, the developer sought permission to conduct three off-right-of-way activities. In its order on the motion, the court found that the developer was unlikely to prevail on appeal, including on its arguments that the Department of State sufficiently analyzed cumulative greenhouse gas impacts and adequately explained its decision to reverse course and approve the permit. With respect to the policy shift, the court said the Department’s “discretion to give more weight to energy security” did not excuse it from ignoring the Obama administration’s “factually-based determinations” regarding “Climate Change-Related Foreign Policy Considerations.” The court further found that both the developer and the plaintiffs had shown irreparable injury; that off-right-of-way activities in areas that had not been surveyed or were not part of the earlier supplemental environmental impact statement would further threaten irreparable injury to the plaintiffs; and that the public interest weighed in favor of a complete NEPA review. The court therefore allowed certain preconstruction activities to take place in already-surveyed areas but otherwise left the injunction on preconstruction activities in effect.
    02/01/2019 Notice of Appeal Download Notice of appeal filed by federal defendants.
    01/14/2019 Notice of Appeal Download Notice of appeal filed by petitioners Indigenous Environmental Network and North Coast Rivers Alliance.
    01/10/2019 Reply Download Reply filed by defendant-intervenors in support of motion to stay the court's order on summary judgment pending appeal.
    01/08/2019 Objection Download Objection filed by Indigenous Environmental Network plaintiffs to TransCanada's untimely "status update" and declaration.
    01/07/2019 Statement Download Federal defendants filed statement regarding the hearing on defendant-intervenors' motion for stay pending appeal. On January 7, 2019, the Department of Justice (DOJ) filed a statement supporting TransCanada’s view that DOJ's presence was not necessary at the hearing on TransCanada's motion to stay the injunction pending appeal.
    01/07/2019 Status Report Download Status report filed by defendant-intervenors.
    01/04/2019 Statement Download Statement filed by TransCanada regarding the impact of the government shutdown on hearing. On January 4, 2019, TransCanada submitted a statement conveying its view that the hearing on its motion for a stay pending appeal could proceed even if the federal government shutdown prevented the U.S. Department of Justice (DOJ) from participating because, in TransCanada’s view, the court’s injunction “largely concerns TransCanada” and DOJ’s presence “is not essential.”
    12/21/2018 Memorandum Download Memorandum filed by defendant-intervenors in support of stay pending appeal.
    12/21/2018 Motion Download Motion for stay pending appeal filed by defendant-intervenors. TransCanada appealed the November and December orders and has asked the district court for a stay while it pursues the appeal. TransCanada requested that the court rule on the stay request by January 7 so that TransCanada could, if necessary, pursue relief in the Ninth Circuit “with the goal of preserving the 2019 construction season.” The district court scheduled a hearing on the stay motion for January 14.
    12/21/2018 Notice of Appeal Download Notice of appeal filed.
    12/07/2018 Order Download Supplemental order regarding permanent injunction issued. Montana Federal Court Barred Preconstruction Activities for Keystone Pipeline. On December 7, 2018, the federal district court for the District of Montana enjoined TransCanada Keystone Pipeline, LP (TransCanada) from conducting certain “preconstruction activities” in connection with the Keystone XL pipeline until the U.S. Department of State completed supplemental environmental review in response to the court’s November 2018 order enjoining work on the pipeline. After TransCanada sought to narrow the scope of the injunction, the court initially allowed TransCanada to proceed with certain activities and, in the December 7 order, also allowed TransCanada to go ahead with certain surveying activities and to maintain a security presence. The court found, however, that the plaintiffs had established all four prongs justifying a permanent injunction barring the preconstruction activities, which included preparation of off-right-of-way pipe storage and contractor yards and transportation, receipt, and off-loading of pipe at storage yards. In considering whether such activities would cause irreparable harm, the court said allowing the preconstruction activities to go forward before the State Department finished its review “could skew the Department’s future analysis and decision-making regarding the project.”
    12/07/2018 Reply Download Reply filed by defendant-intervenors' in support of motion to amend the court's order on summary judgment.
    12/05/2018 Response Download Opposition filed by Indigenous Environmental Network plaintiffs to TransCanada's motion to amend the court's order on summary judgment.
    12/03/2018 Federal Register Notice Download Department of State published a notice of intent to prepare a supplemental environmental impact statement for the proposed Keystone XL pipeline.
    11/29/2018 Response Download Response filed by defendants to defendant-intervenors' motion to amend the court's order on summary judgment.
    11/28/2018 Not Available Status conference held and order on motion for summary judgment clarified. In response to a motion by the pipeline developer, the court said during a status conference on November 28 that the developer could begin certain preconstruction activities and deferring a final decision on other activities until parties filed their responses to the motion.
    11/15/2018 Memorandum Download Memorandum and declaration filed by defendant-intervenors in support of motion to amend the court's order on summary judgment.
    11/15/2018 Motion Download Motion to amend the court's order on summary judgment filed by defendant-intervenors.
    11/08/2018 Order Download Motions for summary judgment granted in part and denied in part, record of decision vacated, and federal defendants and TransCanada enjoined from engaging in any activity in furtherance of the construction or operation of Keystone and associated facilities until the Department has completed a supplement to the 2014 SEIS that complies with the requirements of NEPA and the APA. Federal Court Found That Approval for Keystone XL Pipeline Did Not Comply with NEPA and Administrative Procedure Act. The federal district court for the District of Montana vacated the record of decision issued for the presidential permit for the Keystone XL pipeline and enjoined further construction or operation of the pipeline until the U.S. Department of State completes supplemental environmental review. The court found that the Department of State failed to comply with the National Environmental Policy Act (NEPA) and the Administrative Procedure Act when it reversed the Obama administration’s denial of the permit without providing a reasoned explanation for disregarding the Obama administration’s factual findings concerning climate change and the U.S.’s role in contributing to and addressing climate change. The court also found that the Department had not taken the hard look required by NEPA with respect to several issues, including the effects of current low oil prices on the project’s viability and the cumulative effects of greenhouse gas emissions from the Alberta Clipper pipeline expansion project and Keystone.
    09/04/2018 Status Report Download Proposed schedule for completing a supplemental environmental impact statement filed by defendants.
    08/15/2018 Order Download Court issued partial order on summary judgment regarding NEPA compliance. Montana Federal Court Ordered Supplemental Environmental Review of New Route for Keystone XL Pipeline. In lawsuits challenging the presidential permit for the Keystone XL pipeline, the federal district court for the District of Montana ruled that the federal defendants must supplement the environmental impact statement to consider the impacts of an alternative route approved by the Nebraska Public Service Commission. The court concluded that the National Environmental Policy Act (NEPA) required supplementation in this situation where ongoing federal action remained and the defendants had not analyzed the alternative. The court said it would address Endangered Species Act arguments and other remaining issues in a future order.
    04/16/2018 Order Download Order issued requiring defendants to complete administrative record or prepare privilege log. In Challenges to Keystone Pipeline Permit, Montana Federal Court Ordered Federal Defendants to Search for More Documents for Administrative Record. On April 16, 2018, the federal district court for the District of Montana ordered the federal defendants to complete the administrative record or provide a privilege log in pending challenges to the presidential permit granted in March 2017 for the Keystone XL Pipeline. The court found that the plaintiffs had rebutted the presumption of completeness of the administrative record by pointing to specific documents that were missing and that the federal defendants’ failure to provide the whole record also was evidenced by their earlier supplementation of the record after the court required that they produce documents or prepare a privilege log for documents dated from January 26, 2017 to March 23, 2017. In addition, the court rejected the defendants’ argument that internal agency communications and drafts could not comprise part of the administrative record. Recognizing the burden imposed on the defendants, the court required the plaintiffs to provide a “reasonable list” of no more than 50 search terms to narrow the scope of inquiry. The parties also agreed that the date range for the additional document production would be limited to May 2012 to November 2015.
    03/30/2018 Memorandum Download Memorandum filed in support of defendant-intervenors' motion for summary judgment and in opposition to plaintiffs' motions for summary judgment.
    02/09/2018 Memorandum Download Memorandum filed by Northern Plains plaintiffs in support of motion for partial summary judgment.
    02/09/2018 Memorandum Download Memorandum of points and authorities filed in support of Indigenous Environmental Network and North Coast Rivers Alliance's motion for summary judgment.
    11/22/2017 Order Download Motions to dismiss denied. Montana Federal Court Denied Motions to Dismiss Challenges to Keystone XL Pipeline. The federal district court for the District of Montana denied motions to dismiss lawsuits challenging the presidential permit for the Keystone XL Pipeline. The court rejected the federal defendants’ and intervenor TransCanada Corporation’s (TransCanada’s) contention that issuance of the permit was unreviewable presidential action. The court found that President Trump had waived any authority he retained to make the final decision on the presidential permit when he issued a presidential memorandum on the Keystone XL Pipeline on January 24, 2017. The court said the State Department had taken final agency action when it published the record of decision and national interest determination for the pipeline and issued the presidential permit. The court also found that the federal defendants and TransCanada had not met their burden of establishing that Congress had committed to agency discretion the State Department’s determinations. In addition, the court found that the plaintiffs had alleged procedural injuries that could be redressed through the procedural remedy of adequate review under the National Environmental Policy Act (NEPA). The plaintiffs alleged, among other claims, that the defendants failed to adequately disclose climate impacts and failed to consider alternatives that would obviate the need for more crude oil. The court also allowed an Endangered Species Act claim to proceed.
    09/22/2017 Reply Download Reply submitted by TransCanada in support of supplemental motion to dismiss.
    09/22/2017 Reply Download Reply submitted by federal defendants in support of supplemental motion to dismiss.
    09/08/2017 Memorandum Download Memorandum submitted in opposition to supplemental motions to dismiss.
    08/11/2017 Reply Download Reply filed by federal defendants in support of motion to dismiss.
    08/11/2017 Reply Download Reply filed by TransCanada to plaintiff's response to motion to dismiss.
    07/14/2017 Memorandum Download Memorandum of points and authorities in opposition to motions to dismiss filed by plaintiffs.
    06/09/2017 Memorandum Download Memorandum filed in support of motion to dismiss. Federal Government Moved to Dismiss Keystone Pipeline Challenge. The federal government filed a motion to dismiss a lawsuit challenging the presidential permit for Keystone XL pipeline. The federal government argued that the court lacked jurisdiction to review issuance of a presidential permit. In addition, the government argued that the plaintiffs lacked standing to make their Endangered Species Act (ESA) claim as well as claims under the Migratory Bird Treaty Act (MBTA) and the Bald Eagle and Golden Eagle Protection Act (Eagle Act). The government also asserted that the MBTA and Eagle Act claims were barred by controlling precedent.
    03/27/2017 Complaint Download Complaint filed. Challenge to Keystone XL Pipeline Filed in Montana Federal Court. Two groups representing indigenous peoples and conservation interests filed a lawsuit in the federal district court for the District of Montana to challenge the U.S. Department of State’s issuance of a presidential permit for the Keystone XL Pipeline. The approval of the cross-border permit superseded Secretary of State John Kerry’s denial of the permit in November 2015. The Obama administration had determined that the project was not in the national interest, citing climate change as well as other environmental and health impacts. The groups alleged that the pipeline project “would pose grave risks to the environment, including the climate, water resources and wildlife, and to human health and safety” and would violate the National Environmental Policy Act, the Endangered Species Act, the Migratory Bird Treaty Act, and the Bald and Golden Eagle Protection Act. Alleged shortcomings in the environmental review for the permit included narrowing the project’s purpose and need to “unduly constrain[] the available options to those that are preemptively locked into fossil fuel dependence”; failure to “consider the feasible and environmentally beneficial alternatives of adopting aggressive renewable energy and energy efficiency measures to obviate the claimed need for more crude oil”; and failure to adequately disclose climate impacts. The complaint also alleged that the supplemental environmental impact statement was prepared by a consulting firm with an illegal conflict of interest.
  • Northern Plains Resource Council v. Shannon
    Docket number(s): 4:17-cv-00031
    Court/Admin Entity: D. Mont.
    Case Documents:
    Filing Date Type File Action Taken Summary
    11/22/2017 Order Download Motions to dismiss denied. In addition to dismissing claims brought in both this action and the related action, Indigenous Environmental Network v. U.S. Department of State, No. 4:17-cv-00029, the court decided to hold a NEPA claim against the Bureau of Land Management in abeyance until BLM issued a final decision.
    09/22/2017 Reply Download Reply submitted by TransCanada in support of supplemental motion to dismiss.
    09/22/2017 Reply Download Reply submitted by federal defendants in support of supplemental motion to dismiss.
    08/18/2017 Motion to Dismiss Download Memorandum submitted in support of TransCanada's motion to dismiss.
    08/18/2017 Motion to Dismiss Download Memorandum submitted by federal defendants in support of supplemental motion to dismiss.
    07/10/2017 Opposition Download Opposition filed to motion to dismiss.
    06/09/2017 Memorandum Download Memorandum filed in support of motion to dismiss. Federal Government Moved to Dismiss Keystone Pipeline Challenge. The federal government filed a motion to dismiss a lawsuit challenging the presidential permit for Keystone XL pipeline. The federal government argued that the court lacked jurisdiction to review issuance of a presidential permit. The government also argued that claims against the U.S. Bureau of Land Management should be dismissed because there was no final agency action and because the plaintiffs had not alleged standing for their claim under the ESA.
    05/24/2017 Complaint Download Amended complaint filed. Plaintiffs Alleged Endangered Species Act Violation in Keystone XL Pipeline Challenge. Six environmental organizations challenging the Trump administration’s approval of the Keystone XL pipeline in Montana federal court added an Endangered Species Act claim to their complaint. The organizations contended that the federal defendants had not adequately considered the pipeline’s impacts on whooping cranes, interior least terns, and piping plovers, which are listed as endangered or threatened species under the Endangered Species Act.
    03/30/2017 Complaint Download Complaint filed. Challenge to Keystone XL Pipeline Filed in Montana Federal Court. Six local and national environmental groups filed a lawsuit in the federal district court for the District of Montana to challenge the U.S. Department of State’s issuance of a presidential permit for the Keystone XL Pipeline. The approval of the cross-border permit superseded Secretary of State John Kerry’s denial of the permit in November 2015. The Obama administration had determined that the project was not in the national interest, citing climate change as well as other environmental and health impacts. The groups contended that the environmental impact statement (EIS) completed in 2014 was “inadequate at that time” and was “now woefully out of date.” The complaint alleged that the Department of State had acknowledged that greenhouse gas emissions from the crude oil the pipeline would convey would be 5–20% higher than previously indicated but had denied the significance of this new information and concluded that the 2014 EIS still reflected expected impacts. Other alleged shortcomings in the environmental review included failure to analyze the combined greenhouse gas impacts of the Keystone XL and Alberta Clipper pipelines and failure to analyze viable clean energy alternatives. The complaint also alleged that the State Department had not discussed what impact the approval of the permit would have on global action to address climate change. The plaintiffs asserted that the State Department had arbitrarily reversed its position on whether the pipeline project was in the national interest. The U.S. Bureau of Land Management (BLM), Secretary of the Interior, and Department of the Interior were included as defendants on the grounds that BLM would soon grant rights-of-way for the pipeline in reliance on the inadequate 2014 EIS.