Keystone XL Pipeline Again Nixed by Judge

Indigenous people have been fighting the Keystone XL pipeline through multiple administrations and now will face the Trump administration in the Supreme Court. Photo credit: © Miguel Juarez Lugo/ZUMAPRESS.com
Reading Time: 12 minutes

The controversial Keystone XL pipeline is not dead yet.

On March 15 the Ninth Circuit Court of Appeals upheld a lower court injunction that blocks construction of the proposed pipeline. This important decision, which has received little media coverage, is expected to be appealed to the Supreme Court.

Our podcast guest today is Stephan Volker, the veteran environmental lawyer who represents the lead plaintiffs in the case: the North Coast Rivers Alliance and the Indigenous Environmental Network. The injunction was issued by a federal judge in Montana last November, and the appeals court found that TransCanada is “not likely to prevail on the merits.”

At this stage, construction of the pipeline is completely halted. Volker expects TransCanada, in its appeal to the Supreme Court, to argue that the “presidential permit” issued by Donald Trump is not reviewable by the courts, effectively placing an act of the president above the law.

Volker, based in Berkeley, CA, served for many years at the Sierra Club Legal Defense Fund and EarthJustice. He’s litigated over 300 environmental cases in his career.



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Peter B. Collins: Welcome to another Radio WhoWhatWhy Podcast. In San Francisco, I’m Peter B. Collins.
  Did you know that on March 15th, the Ninth Circuit Court of Appeals based in San Francisco upheld the injunction that was issued last November preventing TransCanada from proceeding with construction of the Keystone XL Pipeline? To discuss, we turn to attorney Steve Volker who represents one of the plaintiffs in the litigation that has led to this important decision. Steve, thanks for being with us today.
Stephan Volker: My pleasure. Thank you, Peter.
Peter B. Collins: You’ve been working on this litigation for some time now, and last November you won an injunction from Federal District Judge Brian Morris in Montana. He issued a stay on construction of the Keystone XL pipeline, and that was appealed to the Ninth Circuit by TransCanada, and were you surprised that the appeals court upheld the lower court’s position?
Stephan Volker: Not at all actually. We have a very strong case, and Judge Morris recognized that early on. He has issued five rulings over the last two years. Each one has been in our favor. Each one has drawn the noose tighter and tighter around TransCanada’s neck. Its project is virtually dead now.
Peter B. Collins: Steve, what is the level of progress on the pipeline itself? Is it 20% complete, 50%? I’m not clear on that.
Stephan Volker: I would say 0%. There has been no pipeline construction, per se.
Peter B. Collins: That’s interesting. I was under the impression that they had parts of it in place.
Stephan Volker: No.
Peter B. Collins: And that it was the controversial, or areas where legal challenges have been brought, where they weren’t able to press forward.
Stephan Volker: No. That’s incorrect.
Peter B. Collins: Great.
Stephan Volker: This pipeline on the American side of the border with Canada is 875 miles. Not a single mile of pipeline has been constructed.
Peter B. Collins: And so, the next round here, where do you expect this to go? Will they appeal to the US Supreme Court?
Stephan Volker: Well, there are two things underway right now. First of all, there is the merit’s briefing of the six issues on which we prevailed before Judge Morris. TransCanada will be filing its opening brief in the next few weeks. We will be filing our opposition to TransCanada’s brief in a month or two. After that, the court will entertain a reply on behalf of TransCanada, and the US Government, which is siding with TransCanada. We will then get a further brief responding to that.
  Our position has been that Judge Morris ruled correctly to the extent that he has set aside all of the project approvals, and has issued a permanent injunction against construction of the pipeline. We also agree with Judge Morris that the ancillary activities that are so-called pre-construction activities should not be allowed either, and for that reason he agreed with our position that none of the worker camps should be constructed during the pendency of litigation, and that is a huge victory because it sets the pipeline back another year even if Keystone Pipeline approvals are eventually allowed by the federal government after a completion of the reviews ordered by the courts. TransCanada would still have to start from square one in conducting pre-construction activities as well as building the pipeline itself, so to the extent that this is a project that would never be approved by any president other than President Trump. If TransCanada is unable to build this pipeline while Trump is in office, this pipeline will never be built.
Peter B. Collins: Well Steve, this is a remarkable sequence of events. You have prevailed in a case representing a small group, the North Coast Rivers Alliance here in California. This really is a powerful statement that you can use the legal system, and that again, a relatively small plaintiff can prevail against a large entity like TransCanada that has the backing, currently, of the US Government. That’s an amazing victory.
Stephan Volker: Well, it’s basically a paradigm for why each voice matters in our democracy. The power of one is unlimited in our society. Perseverance typically carries the day. I hasten to add though that we represent two very tremendous organizations, the North Coast Rivers Alliance, which has members in Montana as well as in Northern California, and in Canada. And also, the Indigenous Environmental Network, which represents tribal members throughout the Norther Great Plains up into Canada.
  In fact, IEN as it is known is the lead plaintiff in all of the consolidated cases challenging the Keystone project. Those two groups came together because they had a common interest. They had an understanding of what’s right and what’s wrong, and Judge Morris agreed with them. We are very pleased, and proud, and honored to be part of that tremendous effort that carried this litigation to what we view as tantamount to a final victory over this pipeline.
Peter B. Collins: Steve, have you had support either direct, or indirectly from the large established environmental groups like the Sierra Club? You used to be their attorney. Have they weighed in on this, or just been encouraging spectators?
Stephan Volker: There is a parallel case that was filed after ours was filed. The lead plaintiff in that case is the Northern Plains Resource Council. That litigation has been submitting briefs and appearing at the hearings before Judge Morris. Part of the credit for the success should be given to them, although we have prevailed on all the issues that we have focused on in our litigation, and we were the first to file. I believe we would have succeeded without their participation, but we should not overlook the assistance that they have given. The other groups aligned with the Northern Plains Resource Council include the Sierra Club, and NRDC, as well as several other nationally known environmental organizations.
Peter B. Collins: Steve, the Ninth Circuit’s decision that was issued on March 15th maintains Judge Morris’s ruling from last November 8th, citing that President Trump violated federal environmental laws when he approved the KXL Pipeline. I understand that the issues that Judge Morris ruled on include, that Trump disregarded prior factual findings by Secretary of State Kerry that the pipeline would unjustifiably worsen climate change.
  The judge found that the administration had failed to conduct an adequate survey of Native American cultural resources that would be harmed by the pipeline. It failed to provide adequate modeling of potential oil spills and their impacts on water resources. It failed to adequately analyze the cumulative effects of this project on greenhouse gas emissions, and failed to address the effects of current oil prices on the viability of the project.
  I’m interested in your comment on how these legal issues would play, in your view, before the current members of the US Supreme Court should it be appealed?
Stephan Volker: Well, that presupposes that TransCanada would actually raise those substitutive issues before the US Supreme Court, which I find doubtful.
Peter B. Collins: I see.
Stephan Volker: The evidence in favor of our success on those issues is overwhelming. The issue on which TransCanada and the federal government have focused from the outset of this litigation is a lawyer’s issue, not an issue that most of the public would readily appreciate, and understand fully. But in lay terms what the Trump Administration has been arguing through its Department of Justice, and what TransCanada, which is a corporation from Canada, has been arguing is that because the Trump Administration issued what it calls a presidential permit that, that presidential action is above the law. It’s beyond the jurisdiction of any federal court to examine whether in issuing that approval the Trump Administration violated federal environmental law including the National Environmental Policy Act, the Endangered Species Act, the Administrative Procedure Act, and other statutes and regulations that bind all of the actions of federal agencies.
  We have argued successfully in this case, and in another groundbreaking case involving a trans boundary energy project on our Mexican border that the Trump Administration is not above the law. That its actions should be considered subject to the full panoply of federal environmental statutes, and Judge Morris has agreed with that. And by denying TransCanada’s request for a stay of the injunction, the Ninth Circuit has signaled its agreement that federal courts do have jurisdiction.
  If I were a betting man, I would expect that it’s more likely than not that if TransCanada seeks review in the US Supreme Court, they will tell the court that the Trump Administration is above law and that none of the statutes that were violated here even apply to this presidential permit. Unfortunately, the Justice Department will tag along and second TransCanada’s very unsavory position that the president of this country is not subject to the laws of this country.
Peter B. Collins: Well Steve, I’m shocked at the imperial claim that is presented there.
Stephan Volker: It’s breathtaking, and it’s terrifying. It’s something that we will leave no stone unturned to defeat. Believe me, it’s not right that a president of this country would claim an imperial power to overrule all of the acts of Congress, all of the decades of work that federal courts have put in to creating a very strong body of case law enforcing all of those federal environmental laws. Folks do need to be appropriately concerned that this is the mark of what a dictator would do. That the dictator would argue that the third branch of our government, the judicial brand, should just butt out of its historic and constitutionally sanctioned role of providing a check on the excesses of the executive branch.
Peter B. Collins: Steve, is there any precedent for this claim of a presidential permit that is beyond the review of the courts?
Stephan Volker: Thus far, there has been no circuit court of appeal ruling in this country agreeing with the position that’s been advanced by the Trump Administration and TransCanada. There are two district court rulings out of the upper Midwest that casually adopted some of these arguments that had been presented by the federal government, and other pipeline developers in the past. There are also now two district court rulings that reject, or now I should say three including this case, there are three district court rulings that reject the notion that the president is above the law. Now we have finally, an indication that we will have a court of appeal ruling that also agrees that the Trump Administration is not above the law.
  I say that given the fact that when the Ninth Circuit issued its ruling on March 15, it indicated that TransCanada had failed to “Make the requisite strong showing that they are likely to prevail on the merits.” The merits issue that they advanced most prominently in their request for a stay was the notion that President Trump is above the law, and that his approval of this project by issuing a presidential permit was not subject to court review, and not subject to compliance with any of the federal environmental laws.
Peter B. Collins: Now Steve, I know enough about the Ninth Circuit. There are currently 24 judges assigned to it. I think there are 16 Democrats, if I’m not mistaken. Now, I realize that these three judge panels are drawn from the full body of the court, but the administration seems to, while Trump routinely attacks the Ninth Circuit for its alleged liberal leanings, the Ninth Circuit has dealt many setbacks to Trump on the immigration ban, the Muslim ban that was issued early in his term, and on a number of other issues. How do you view the court today, and in particular, the ruling that it granted in your case?
Stephan Volker: I think the Ninth Circuit has been exemplary in following the law, and requiring federal agencies to comply with the law. I would expect nothing less in the future.
Peter B. Collins: Steve, as we look at this, do you believe that TransCanada has any rabbits that they can pull out of a hat, or do you feel that you have, at least legally, cornered them on their plans for the Keystone XL, and is it effectively dead at this stage?
Stephan Volker: The only gambit left to TransCanada is to urge the US Supreme Court to adopt the position that I’ve been explaining that the Trump Administration is beyond the law. That this was presidential action that’s not subject to review by the federal courts. I don’t believe that even as presently constituted, our Supreme Court would be so mistaken in its views of the constitutional authority of course, and the necessary checks and balance system that we have, that it would adopt the Trump Administration’s wrongheaded and dangerous position.
Peter B. Collins: Well, I’m very pleased to hear that. Steve, the last thing I’d like to ask you to address is that it’s been six full days since the court issued this ruling, and I think it is a significant piece of news. But I did a search online, and I can’t find any major national news outlets, other than a routine story in the Associated Press, that have covered this case. Do you feel that the media is ignoring it?
Stephan Volker: Yes. Well, my take on that is that if we had lost, and the public became even more alarmed about the prospects for accelerated global warming that this project clearly raises, that if the public were inclined to then mount as its constitutional right a peaceful non-violent civil disobedience campaign, i.e. sit-ins and the kinds of things that those of us who grew up in the ’60s can well relate to, to protect the rights of the planet to survive this administration, that then the press would leave no stone unturned to report on the latest confrontation between peaceful non-violent protestors and those called upon to resist their protests.
  But, unfortunately for the press, but fortunately for our system of governance, and our Constitution, and our court system, we have achieved in court exactly what the founders of our nation envisioned. That courts would provide a powerful check on excesses by the executive branch. They have done that here. I applaud their wise and legally unasssailable decisions from the district court to the Ninth Circuit. And I expect that the US Supreme Court will likewise continue to defend our Constitution, and protect us against an executive branch that seems to know no … to share no understanding of the restrictions on its authority.
Peter B. Collins: Steve, before we wrap up, I wanted to see if you have a comment. I just read yesterday about a trial level, a district court level ruling that was issued related to oil and gas exploration on public lands in the state of Wyoming. Maybe you’re familiar with this, perhaps you haven’t caught up with it yet. I don’t want to put you on the spot, but I found it interesting that the judge in that case ruled that before they can precede, the government has to address the long term and widespread impacts of climate change before that they can issue these permits for exploitation of public lands. Have you had a chance to look at that, and what’s your reaction?
Stephan Volker: Well, I am generally familiar with that ruling, which I believe concerned 300,000 acres of the Bureau of Land Management lands subject to development in Wyoming. I have to add that not only is that a good ruling, but it’s not alone. There have been many other good rulings over the last 10 years identifying the need to address climate change with regard to a broad spectrum of both state and federal agency approvals. We have had many such cases on our docket over the years, and continue to do so.
  Of course, the primary, or foremost issue in the TransCanada Keystone XL Pipeline litigation is the threat posed to accelerating global warming by adding 830,000 barrels per day of highly polluting and global warming enhancing fossil fuels. So yes, we welcome that ruling. We expect that it will be followed by many others as we’ve seen the case law develop favorably over the last decade.
Peter B. Collins: Steve Volker is the attorney for the lead plaintiffs in the case we’ve been discussing. He represents the North Coast Rivers Alliance and the Indigenous Environmental Network. They won the ruling from the Ninth Circuit Court of Appeals on March 15th. Steve Volker, I really appreciate your persistence and dedication to this active body of law, and I hope you will continue to press for our rights.
Stephan Volker: Thank you very much, Peter. Thanks for covering this important case.
Peter B. Collins: Thanks for listening to the radio WhoWhatWhy podcast. Send your comments to Peter@PeterBCollins.com. I’d appreciate it if you’re in a position to contribute that you support the work here at WhoWhatWhy.

Related front page panorama photo credit: Adapted by WhoWhatWhy from US Supreme Court / Wikimedia, Momentmal / Pixabay, and shannonpatrick17 / Wikimedia (CC BY 2.0).

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