Keystone XL in Court: The Tumultuous Journey of Changing Environmental Law

The Keystone Pipeline has been a politicized issue since the beginning of the Obama presidency and the many lawsuits that have come out of its controversy have begun to change the landscape of environmental law. Courts have been pushed to define and solidify the legal mechanisms to approve large, environmentally-consequential projects and multiple legal battles are being fought over presidential authority regarding the environment. The various court decisions in Keystone-related cases continue to build a framework for environmental law and could have lasting implications not only on the construction of Keystone XL, but on future projects as well.

One of the key regulations surrounding the pipeline is the National Environmental Policy Act (NEPA). NEPA was enacted by President Richard Nixon in 1970 and was the first environmental law of its kind. Its aim was to establish a broad framework to protect the environment through various federal agencies. The law mandates that federal agencies take a “hard look” at a project’s potential impact on the environment, as well as the historical or cultural sites that a project may affect. Agencies must also prepare Environmental Assessments (EA) and Environmental Impact Statements (EIS), which detail potential environmental threats for all projects before the proposals can be approved. [1]

While compliance with NEPA is critical for federal agencies trying to get their projects approved, NEPA provides more of a loose framework rather than any specific set of environmental standards. “NEPA imposes procedural requirements, not substantive results, on agencies.” In other words, “NEPA prohibits uniformed, not unwise, agency action.” [2] This leaves a lot of ambiguity in the process, and thus when a controversial project like Keystone XL seeks approval it leaves the door open for many legal disputes.

One such dispute was addressed in the case Sisseton-Wahpeton Oyate v. United States Department of State (2009). In this lawsuit, the Sisseton Wahpeton Oyate, along with three additional tribes, asked the US District Court for the District of South Dakota to revoke a presidential permit for TransCanada's construction of the Keystone pipeline. The plaintiffs claimed that the presidential permit violated regulations under NEPA and the Administrative Procedure Act (APA). The court refuted the plaintiffs claims and stated that even if it did agree with the tribes’ claims, it wouldn’t be able to redress the injuries since the President “would be free to disregard the court’s judgement.” [3] Executive Order 13337 was cited in this explanation, which authorizes the president to give the final permit for energy-related infrastructure that crosses international boundaries. Due to the president’s full control over these permits, the District Court for the District of South Dakota stated in the Sisseton-Wahpeton Oyate decision that “it is purely speculative that a favorable ruling by this court would redress the injuries of which the plaintiffs complain,” as the president can decide anything without discretion for the ruling. [3]

In a similar method of increasing presidential authority, Sierra Club v. Clinton (2009) was another significant case for Keystone and similar projects. The case, centered around the legality of three separate permits for a pipeline, set precedent for presidential authority on cross-boundary energy-related infrastructure such as pipelines. The Sierra Club claimed that the pipeline should be considered a matter of foreign commerce and therefore is under Congress’s jurisdiction. The defendants, on the other hand, argued that the President has the authority on foreign affairs as Commander in Chief. The court sided with the defendants, effectively giving more power to the President on the approval of these projects. [2]

However, these increases to presidential power in environmental regulation have recently been limited by a US District Court Judge. In early November 2018, US District Court Judge Brian Morris halted the construction of the Keystone XL pipeline, claiming that the project proposal approved by the Trump administration was not in accordance with the policies outlined by NEPA. The court order mandates that the State Department revisit the plans for the Keystone XL expansion before anything can go forward. Judge Morris found that the State Department, under the direction of the Trump administration, did not satisfy the APA’s requirement for “reasoned” explanations and “simply disregarded prior factual findings related to climate change to support its course reversal.” [4]

While this may seem like a win for environmentalists against the proposed project, many legal scholars are suggesting that the court mandate will merely serve as a roadblock in the pipeline’s construction. The State Department is required to file a supplementary EIS which includes the previous environmental findings on Keystone XL from the Obama Administration, along with new findings, but NEPA only requires that the agency considers the environmental implications. This gives rise to a greater concern: environmental issues have increasingly become politicized and our current legal framework leaves these decisions mostly in the hands of politicians who may exploit these issues for their own political gain. [5] This effectively leaves us with two options: either implementing new legislation that reduces presidential influence on environmental issues or working across the aisle to depoliticize environmental concerns. Both options unfortunately do not in any way guarantee the protection of the environment for future generations.

[1] “National Environmental Policy Act.” United States Environmental Protection Agency. Accessed December 4, 2018.

[2] “Sierra Club v. Clinton, (2009).” Justia Law. Accessed December 4, 2018.

[3] “The Sisseton-Wahpeton Oyate v. United States Department of State, (2009).” Justia Law, Accessed

December 4, 2018.

[4] “Keystone XL pipeline order issued by U.S. District Judge Brian Morris in Montana.” The Washington Post. Accessed December 4, 2018.

[5] “The Keystone XL Pipeline: Fueling the debate over presidential permit authority.”American Bar Association. March 11, 2015.