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Indigenous Environmental Network v. United States Department of State

United States District Court, D. Montana, Great Falls Division

February 15, 2019

INDIGENOUS ENVIRONMENTAL NETWORK and NORTH COAST RIVER ALLIANCE, and NORTHERN PLAINS RESOURCE COUNCIL, et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF STATE, et al., Defendants and TRANSCANADA KEYSTONE PIPELINE and TRANSCANADA CORPORATION, Defendant-Intervenors.

          SUPPLEMENTAL ORDER REGARDING MOTION TO STAY

          BRIAN MORRIS UNITED STATES DISTRICT COURT JUDGE

         Plaintiffs Indigenous Environmental Network and Northern Plains Resource Council (collectively “Plaintiffs”) moved for summary judgment in this matter. (Docs. 139 & 145.) The United States Department of State (“Department”) and TransCanada (collectively “Defendants”) filed cross motions for summary judgment. (Docs. 170 & 172.)

         The Court granted Plaintiffs' motions in part, and Defendants' motions in part, in the Court's Order on Plaintiffs' and Defendants' Motions for Summary Judgment (“Summary Judgment Order”). (Doc. 211.) The Court vacated the Department's Record of Decision (“ROD”) issued on March 23, 2017. The Court granted Plaintiffs' request for injunctive relief and remanded the matter to the Department for further consideration consistent with the Summary Judgment Order. Id. The Court entered Final Judgment on November 15, 2018. (Doc. 212.)

         TransCanada moved the Court pursuant to Rule 59(e) and Rule 60(b) to amend the Court's Summary Judgment Order, and Final Judgment. (Docs. 211 & 212.) TransCanada sought clarification of the Court's Orders to ensure certain preliminary project activities would not be enjoined. (Doc. 215.) The Court granted in part TransCanada's motion to amend. (Doc. 232.) The Court determined that TransCanada could conduct activities as defined in Paragraphs 16-17 of the Ramsay Declaration. (Doc. 216-1 at 6-7.) The Court allowed TransCanada to conduct cultural, biological, civil and other surveys, and to maintain security at project sites, as set forth in Paragraph 18 of the Ramsay Declaration. Id. at 7. All remaining preconstruction activities outlined in Paragraph 18 remained enjoined in accordance with the Court's Summary Judgment Order until the Department has complied with its NEPA and APA obligations and the Department has issued a new ROD. (Doc. 211.)

         TransCanada filed a Notice of Appeal on December 21, 2018. (Doc. 233.) TransCanada also filed a Motion to Stay the permanent injunction pending its appeal (Doc. 234.) TransCanada asks the Court to allow three off-right-of-way activities to continue (hereafter “off-right-of-way activities”): (1) preparation of off-right-way pipe storage and contractor yards; (2) transportation, receipt, and offloading of pipe at off-right-of-way storage yards; and (3) preparation of sites for off-right-of-way construction camps. TransCanada argues that each of these activities will involve only private action, will impact only private land, and will fall beyond the scope of any NEPA analysis. TransCanada further argues that it will suffer irreparable harm absent a stay of the off-right-of-way activities. Id. at 2. Finally, TransCanada argues that the off-right-of-way activities serve the public interest and will not substantially injure Plaintiffs.

         LEGAL STANDARD

         The United States Supreme Court has set forth a four-factor test for granting a stay pending appeal: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Nken v. Holder, 556 U.S. 418, 434 (2009). A party requesting a stay pending appeal bears the burden of showing that the circumstances justify an exercise of the court's discretion. Lair v. Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012).

         DISCUSSION

         The Court held a hearing on TransCanada's Motion to Stay on January 14, 2019. (Doc. 249.) TransCanada discussed further details regarding the importance of continuing the off-right-of-way activities pending the Department's NEPA review and TransCanada's appeal. TransCanada clarified that it was asking to continue only the three off-right-of-way activities. TransCanada does not contest the Court's decision to enjoin mowing and patrolling the right-of-way to discourage migratory bird nesting.

         TransCanada emphasized that the off-right-of-way activities occur solely on private land. TransCanada either owns or leases this private land from private parties. Further, TransCanada asserted that none of the off-right-of-way activities would be subject to the NEPA review process. TransCanada submitted an updated Status Report. (Doc. 246.) The updated Status Report demonstrates that the off-right-of-way activities will not cross or be in proximity to water bodies, will not involve removal of trees, and will not involve the application of pesticides or herbicides. (Doc. 246-1 at 9.) Further, TransCanada asserts that the proposed off-right-of-way activities will occur in areas that already have been surveyed for the presence of protected species and cultural resources. Id. at 9-10. Finally, TransCanada alleges that it has obtained all state and local permits needed to perform the activities. Id. The Court makes the following determinations in light of the new information presented at the hearing.

         I. TransCanada's Likelihood of Success on the Merits of Its Appeal

         TransCanada asserts five arguments in support of its likelihood of success on appeal. Plaintiffs oppose each argument. The Court will address each of TransCanada's arguments in turn.

         A. The Department's Decision to issue the Permit

         TransCanada first argues that the Department's issuance of the cross-border permit should not be subject to review under NEPA or the APA. (Doc. 235 at 11.) TransCanada argues that the Department acted pursuant to an express delegation of the President's inherent authority over foreign affairs. Id. TransCanada argues that the Department's issuance of the permit constituted a presidential action, rather than an agency action. TransCanada asserts that judicial review would be inapplicable under these circumstances. Id.

         The Court considered two factors in determining whether issuance of the permit constituted presidential action: 1) whether the President carried out the final action himself and the manner in which he did so; and 2) whether Congress has curtailed in any way the President's authority to direct the “agency” in making policy judgments. Natural Res. Def. Council v. U.S. Dep't of State, 658 F.Supp.2d 105, 111 (D.C. Cir. 2009).

         The President waived any right in his Memorandum to review the Department's decision under Executive Order 13337. The Department's obligation to study the environmental impacts of its decision fundamentally does not stem from the foreign relations power. The Department's own NEPA regulations recognize that the issuance of a Presidential Permit represents a “major Departmental action” subject to Congress's mandates in NEPA. 22 C.F.R. §§ 161.7, 161.7(c)(1). The Department prepared, on its own initiative, an SEIS and published a corresponding ROD/NID in this case. (Doc. 61 at 6.)

         The Department took final agency action when it published the ROD/NID for Keystone and issued the accompanying Presidential Permit. The Ninth Circuit has determined that “once an EIS's analysis has been solidified in a ROD, the agency has taken final agency action, reviewable under [APA section] 706(2)(A).” Or. Nat. Desert Ass'n v. Bureau of Land Mgmt., 625 F.3d 1092, 1118-19 (9th Cir. 2010); Laub v. U.S. Dep't of Interior, 342 F.3d 1080, 1088 (9th Cir. 2003). The publication of the ROD/NID led to the Department's issuance of the accompanying Presidential Permit. TransCanada would not be likely to succeed on appeal under this argument.

         TransCanada next alleges that NEPA and APA limit the Court's authority to the border-crossing area, rather than the length of the entire project. The Court rejected this argument in its Order on Partial Summary Judgment. (Doc. 202.) The Permit states that Keystone “must be constructed and operated as described in the 2012 and 2017 permit applications.” Notice of Issuance of a Presidential Permit, 82 Fed. Reg. 16467-02 (Apr. 4, 2017). The Department was required to “analyze all of the environmental consequences of [the] project.” Save Our Sonoran, Inc., 408 F.3d at 1118. The Court possessed authority to enjoin the entire project.

         B. Agency Discretion

         A strong presumption exists that Congress intends judicial review of administrative action. ASSE Int'l v. Kerry, 803 F.3d 1059, 1068 (9th Cir. 2015). Two narrow exceptions apply: (1) when Congress expressly bars review by statute, or (2) where an agency action is “committed to agency discretion by law.” Id. TransCanada argues that the APA does not apply because a national interest determination remains committed to agency discretion and stands exempt from judicial review. (Doc. 235 at 17.)

         Congress commits agency action to agency discretion in those rare instances where Congress draws statutes in such broad terms that no law exists to apply in a given case. 5 U.S.C. § 701(a)(2). Congress's decision to draft a statute in such broad terms leaves the court “with no meaningful standard against which to judge the agency's exercise of discretion.” Id. Courts must consider “the language of the statute” and whether judicial review would endanger “the general purposes of the statute.” Cnty. Of Esmeralda v. Dep't of Energy, 925 F.2d 1216, 1218 (9th Cir. 1991).

         Congress has provided a meaningful standard in the form of NEPA against which to judge the Department's conduct. Congress enacted NEPA to “protect the environment by requiring that federal agencies carefully weigh environmental considerations and consider potential alternatives to the proposed action before the government launches any major federal action.” Barnes v. U.S. Dep't of Transp., 655 F.3d 1124, 1131 (9th Cir. 2011). NEPA, as enacted by Congress, its regulations, and any judicial opinions that address similar NEPA claims, have developed these standards more fully. 42 U.S.C.A. § 4332(2)(C); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971).

         C. NEPA Supplementation

         TransCanada next asserts that no circumstances presented in the administrative record warranted NEPA supplementation. TransCanada argues that nothing in the administrative record required the Department to supplement its NEPA analysis with regard to the following areas: the Mainline Alternative Route (“MAR”); oil markets; greenhouse gas emissions; cultural resources; and oil spills.

         1. The MAR

         TransCanada argues that no circumstances regarding the change in the route through Nebraska required the Department to provide a supplement to the SEIS with regard to the MAR. TransCanada contends that the Department had completed its decision-making process before the State of Nebraska had ...


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