United States District Court, D. Montana, Great Falls Division
INDIGENOUS ENVIRONMENTAL NETWORK and NORTH COAST RIVER ALLIANCE,
UNITED STATES DEPARTMENT OF STATE, et al., Defendants and NORTHERN PLAINS RESOURCE COUNCIL, et al., Plaintiffs, and TRANSCANADA KEYSTONE PIPELINE and TRANSCANADA CORPORATION, Defendant-Intervenors.
PARTIAL ORDER ON SUMMARY JUDGMENT
REGARDING NEPA COMPLIANCE
Morris United States District Court Judge
Indigenous Environmental Network and Northern Plains Resource
Council (collectively “Plaintiffs”) bring this
action against the United States Department of State and
various other governmental agencies and agents in their
official capacities (“Federal Defendants”).
Plaintiffs allege that the State Department violated the
Administrative Procedure Act (“APA”), the
National Environmental Policy Act (“NEPA”), and
the Endangered Species Act (“ESA”) when it
published its Record of Decision (“ROD”) and
National Interest Determination (“NID”) and
issued the accompanying Presidential Permit to allow
defendant-intervenor TransCanada Keystone Pipeline, LP
(“TransCanada”) to construct a cross-border oil
pipeline known as Keystone XL (“Keystone”).
Plaintiffs have moved for summary judgment. (Docs. 139 &
145.) Federal Defendants and TransCanada have filed cross
motions for summary judgment. (Docs. 172 & 170.) The
Court held a hearing on these motions on May 24, 2018. (Doc.
194.) The Court is prepared to rule on a portion of
Plaintiffs's motion for summary judgment. The Court will
rule on the remaining issues in a forthcoming Order.
Court detailed the background of this case in its Order
regarding Federal Defendant's and TransCanada's
Motion to Dismiss for Lack of Jurisdiction. (Doc. 99.) The
Court will only recite those facts that have arisen since its
Order regarding jurisdiction.
Nebraska Public Service Commission (“PSC”) denied
TransCanada's application for its preferred route on
November 20, 2017. (Doc. 104-1.) The Nebraska PSC instead
approved the “Mainline Alternative” route.
Id. The Mainline Alternative route goes through five
different counties and crosses several different water bodies
than the original preferred route. Id. The Mainline
Alternative route also would be longer. This added length
requires an additional pump station and accompanying power
line infrastructure. Id.
the Nebraska PSC announced its decision, Plaintiffs notified
Federal Defendants that they needed to reinitiate ESA Section
7(a)(2) consultation on the Mainline Alternative route to
assess the potential effects of the new route on endangered
and threatened species. (Doc. 141-1.) Plaintiffs also
requested that Federal Defendants prepare a supplemental EIS.
Id. Federal Defendants have taken steps to
reinitiate ESA Section 7(a)(2) consultation with the
appropriate agencies, including FWS. Federal Defendants have
not committed, however, to supplementing the EIS.
should grant summary judgment where the movant demonstrates
that no genuine dispute exists “as to any material
fact” and the movant is “entitled to judgment as
a matter of law.” Fed.R.Civ.P. 56(a). Summary judgment
remains appropriate for resolving a challenge to a federal
agency's actions when review will be based primarily on
the administrative record. Pit River Tribe v. U.S. Forest
Serv., 469 F.3d 768, 778 (9th Cir. 2006).
APA's standard of review governs Plaintiffs's claims.
W. Watersheds Project v. Kraayenbrink, 632 F.3d 472,
481, 496 (9th Cir. 2011); Bennett v. Spear, 520 U.S.
154, 174 (1997). The APA instructs a reviewing court to
“hold unlawful and set aside” agency action
deemed “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A). A rational connection must exist between
the facts found and the conclusions made in support of the
agency's action. Kraayenbrink, 632 F.3d at 481.
Federal Defendants did not properly analyze Keystone's
environmental impacts considering Federal Defendants did not
know Keystone's final route through Nebraska.
argue that the agencies could not properly analyze
Keystone's environmental impacts without knowing its
route through Nebraska. (Doc. 140 at 17.) NEPA serves as the
“basic national charter for protection of the
environment.” 40 C.F.R. § 1500.1(a). NEPA requires
all federal agencies to prepare a “detailed
statement” for any “major Federal actions
significantly affecting the quality of the human
environment.” 42 U.S.C. § 4332(2)(C).
detailed statement, known as an environmental impact
statement (“EIS”), must describe the
environmental impacts of the proposed action. 42 U.S.C.
§ 4332(2)(C)(i), (ii). The EIS must include a
“full and fair discussion” of the effects of the
proposed action, including those on the “affected
region, the affected interests, and the locality.” 40
C.F.R. §§ 1502.1, 1508.27(a). Further, for a
“site-specific action, significance would usually
depend upon the effects in the locale . . .”
Id., § 1508.27(a). The agency must finally
consider the “unique characteristics of the geographic
area” when determining the significance of an action.
Id., § 1508.27(b)(2). An agency also may be
required to perform a supplemental analysis “if
significant new circumstances or information relevant to
environmental concerns and bearing on the proposed action or
its impacts” arise during the NEPA review. 40 C.F.R.
further argue that Federal Defendants must address the
Mainline Alternative route pursuant to its NEPA obligations
as it proves to be a “connected action” to the
proposed action. (Doc. 146 at 48.); 40 C.F.R. §
1508.25(a)(1). A federal agency must consider connected
actions together in a single EIS. Id. NEPA defines
connected actions as any of the following: those actions that
“automatically trigger other actions which may require
environmental impact statements;” those actions that
“cannot or will not proceed unless other actions are
taken;” or those actions are interdependent parts of a
larger action and depend on the larger action for their
justification.” 40 C.F.R. § 1508.25(a)(1). In
determining whether two actions are connected for the
purposes of NEPA, a court must examine whether the two
actions have “independent utility” or whether it
would be “irrational, or at least unwise, to undertake
the first phase if subsequent phases ...