Indigenous Envtl. Network v. Trump

Citation428 F.Supp.3d 296
Decision Date20 December 2019
Docket NumberCV-19-28-GF-BMM
Parties INDIGENOUS ENVIRONMENTAL NETWORK and North Coast Rivers Alliance, Plaintiffs, v. President Donald J. TRUMP, et al., Defendants, and TC Energy Corporation, et al., Defendant-Intervenors.
CourtU.S. District Court — District of Montana

Stephan C. Volker, Pro Hac Vice, Alexis E. Krieg, Pro Hac Vice, Stephanie L. Clarke, Pro Hac Vice, Jamey M.B. Volker, Pro Hac Vice, Law Offices Of Stephan C. Volker, Berkeley, CA, James A. Patten, Patten Peterman Bekkedahl & Green, Billings, MT, for Plaintiffs.

Luther L. Hajek, U.S. Department of Justice, Denver, CO, Marissa Ann Piropato, Department of Justice, Washington, DC, Mark Steger Smith, U.S. Attorney's Office, Billings, MT, for Defendants.

Jeffrey M. Roth, Crowley Fleck PLLP, Missoula, MT, Mark L. Stermitz, Jeffery J. Oven, Crowley Fleck PLLP, Billings, MT, Peter R. Steenland, Pro Hac Vice, Peter Christopher Whitfield, Pro Hac Vice, Sidley Austin LLP, Washington, DC, for Defendant-Intervenors.

ORDER

Brian Morris, United States District Court Judge Indigenous Environmental Network ("IEN") and North Coast Rivers Alliance ("NCRA") (collectively, "Plaintiffs") bring this action against President Donald J. Trump and various government agencies and agents in their official capacities ("Federal Defendants"). Plaintiffs allege that President Trump violated the Property Clause of the United States Constitution, the Commerce Clause of the United States Constitution, and Executive Order 13337 when he issued a Presidential Permit in 2019 ("2019 Permit") authorizing defendant-intervenors TransCanada Keystone Pipeline, LP and TC Energy Corporation (collectively, "TC Energy") to construct a cross-border segment of the oil pipeline known as Keystone XL ("Keystone").

Plaintiffs seek a preliminary injunction to stay all permits that the Federal Defendants have issued that allow for TC Energy's construction of the Keystone pipeline. Plaintiffs also seek to enjoin TC Energy's construction and preconstruction activities pending this Court's adjudication of the merits of this action. Federal Defendants and TC Energy move to dismiss this action for lack of jurisdiction and for failure to state a claim.

BACKGROUND
I. Executive Orders Concerning Cross-Border Pipeline Permitting on the United States's Borders

President Lyndon B. Johnson issued Executive Order 11423 in 1968 ("1968 Executive Order"). Providing for the Performance of Certain Functions Heretofore Performed by the President with Respect to Certain Facilities Constructed and Maintained on the Borders of the United States, Exec. Order 11423, 33 Fed. Reg. 11741 (Aug. 20, 1968). President Johnson noted that "the proper conduct of the foreign relations of the United States requires" applicants to obtain executive permission for constructing and maintaining facilities at the United States border connecting the United States with a foreign country. Id. President Johnson sought to "provide a systematic method in connection with the issuance of permits for the construction and maintenance" of facilities that connect the United States with a foreign country. Id.

The 1968 Executive Order designated and empowered the Secretary of State to "receive all applications for permits for the construction, connection, operation, or maintenance, at the borders of the United States, of ... pipelines ... for the exportation or importation of ... petroleum products." Id. The 1968 Executive Order required the Secretary of State to request the views of various departments and agencies, including "the Secretary of the Treasury, the Secretary of Defense, the Attorney General, the Secretary of the Interior, the Secretary of Commerce, the Secretary of Transportation, the Interstate Commerce Commission, and the Director of the Office of Emergency Planning." Id. The 1968 Executive Order instructed the Secretary of State to consider the departments' and agencies' views to determine whether the issuance of a permit "would serve the national interest." The Secretary of State would recommend permit issuance if the permit would serve the national interest and recommend application denial if the permit would not serve the national interest. Id.

The 1968 Executive Order governed cross-border pipeline facilities until 2004, when President George W. Bush issued Executive Order 13337 ("2004 Executive Order"). Issuance of Permits With Respect to Certain Energy-Related Facilities and Land Transportation Crossings on the International Boundaries of the United States, Exec. Order No. 13337, 69 Fed. Reg. 25299 (April 30, 2004). President Bush sought to "expedite reviews of permits as necessary to accelerate the completion of energy production and transmission projects, and to provide a systematic method for evaluating and permitting the construction and maintenance of certain border crossings for land transportation." Notably, President Bush sought to do so "while maintaining safety, public health, and environmental protections." Id.

The 2004 Executive Order revised portions of the 1968 Executive Order, but maintained the same general approval procedure for cross-border pipeline facilities. The 2004 Executive Order similarly empowered the Secretary of State to receive all applications, seek the views of various agencies and departments, and then determine whether issuance of a permit to the applicant would serve the national interest. The Secretary of State would recommend permit issuance if the permit would serve the national interest and recommend application denial if the permit would not serve the national interest. Id. at 25300. The 2004 Executive Order further provided that the order did not affect the authority of any department or agency, supersede or replace other laws, or "relieve a person from any requirement to obtain authorization from any other department or agency of the United States Government in compliance with applicable laws and regulations subject to the jurisdiction of that department or agency." Id. at 25301.

The 2004 Executive Order remained in effect until April 10, 2019, when President Trump issued Executive Order 13867 ("2019 Executive Order"). Issuance of Permits with Respect to Facilities and Land Transportation Crossings at the International Boundaries of the United States, Exec. Order 13867, 84 Fed. Reg. 15491 (April 10, 2019). The 2019 Executive Order revokes the 1968 Executive Order and the 2004 Executive Order. Id. at 15492. President Trump noted in the 2019 Executive Order that "executive actions, Federal regulations, and policies of executive departments and agencies" have "unnecessarily complicated the Presidential permitting process" of cross-border infrastructure permits. Id. at 15491. President Trump concluded that those complications hindered the United States's economic development and undermined the United States's efforts "to foster goodwill and mutually productive economic exchanges with its neighboring countries." Id.

The 2019 Executive Order revises the process in the 2004 Executive Order for issuing permits of certain facilities at the border of the United States. The 2019 Executive Order designates the Secretary of State to receive all applications for the issuance or amendment of permits for cross-border "pipelines ... and similar facilities for exportation or importation of all products to or from a foreign country." Id. The 2019 Executive Order instructs the Secretary of State to advise the President as to whether the President should request the views of any agency heads. Id. at 15492. Agency heads whose opinion the President requests must provide their views and render assistance as requested. The Secretary of State also may solicit advice from State, tribal, and local and foreign governments, "as the President may deem necessary." Id.

The Secretary of State, after collecting any information that the President requests, must determine whether issuance of the permit would "serve the foreign policy interests of the United States." The Secretary of State shall advise the President regarding the Secretary of State's opinion of whether issuance of the permit would "serve the foreign policy interests of the United States." Id. The 2019 Executive Order provides that permitting decisions "shall be made solely by the President." The 2019 Executive Order notes that existing permits "shall remain in full effect in accordance with their terms unless and until modified, amended, suspended, or revoked by the appropriate authority." Id.

II. Permitting the Keystone Pipeline
A. The Keystone Pipeline

TC Energy proposed Keystone as an expansion to its existing pipeline system in 2008. Indigenous Envtl. Network v. U.S. Dep't of State , No. CV-17-29-GF-BMM, 2017 WL 5632435, at *1 (D. Mont. Nov. 22, 2017) (hereinafter " IEN November 2017 Order "). Keystone would transport up to 830,000 barrels per day of crude oil from Alberta, Canada and the Bakken shale formation in Montana to existing pipeline facilities in Nebraska. Id.

TC Energy first applied for a presidential permit in September of 2008 ("2008 Application"). Id. The 2004 Executive Order governed cross-border oil pipelines at that time, and provided the State Department with the authority to issue presidential permits for cross-border oil pipelines if issuance of the permit to the applicant "would serve the national interest." 69 Fed. Reg. at 25300.

The State Department recognized that its consideration of TC Energy's 2008 Application would represent a "major Federal action" that required a detailed environmental analysis. IEN November 2017 Order , 2017 WL 5632435, at *3 (citing Notice of Intent to Prepare an EIS, 74 Fed. Reg. 5019-02 (Jan. 28, 2009) ); see 42 U.S.C. § 4332(2)(C) (requiring agencies to prepare detailed statements on "major Federal actions" effect on the environment). The State Department issued a draft environmental impact statement ("EIS") regarding TC Energy's 2008 Application in April 2010. IEN November 2017 Order , 2017 WL 5632435, at *1....

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