NoKXL Overpass Light Brigade #1, Memorial Park Bridge overpass, Omaha, September 2017. (Photo: Jason Shald)

Plaintiffs (including Bold Alliance) on Friday asked a federal judge for a summary judgment vacating the approval of the Keystone XL tarsands pipeline, in their lawsuit challenging the Trump administration’s rubber-stamp of a cross-border permit for the proposed pipeline.

The Trump administration “has provided no convincing explanation for the State Department’s failure to justify its reversal” of its previous decision, under then-President Obama, to deny the Keystone XL permit in 2015.

“That is especially notable here, where the reversal rests on an identical record as the 2015 denial and clearly contradicts previous factual findings,” reads the brief filed by attorneys for plaintiffs including Northern Plains Resource Council, Bold Alliance, Natural Resources Defense Council, Sierra Club, Friends of the Earth, and the Center for Biological Diversity.

(On April 16th, the U.S. District Court in Montana sided with a motion from Plaintiffs (see below) and ordered the Trump administration to either produce missing internal records about its KXL decision-making from its incomplete initial submission to the Court, or else provide a “privilege log” that must include both a description of the redacted documents, and a legal rationale for keeping them from the public. Under the order from U.S. District Court Judge Brian Morris, the government must turn over an initial set of records by May 11, and the full set by June 10.)

The groups argue in their brief that the U.S. State Department and U.S. Fish and Wildlife Service can’t ignore the National Environmental Policy Act (NEPA) and Endangered Species Act (ESA) “simply because they wanted to score what they viewed as a quick political victory for the Trump administration.”

“Notably, the State Department and Service completed their environmental reviews [in 2014] before one of the fundamental characteristics of the project—its final location—was even known. Because of that omission, the agencies never analyzed how Keystone XL would affect people and wildlife along the newly approved Mainline Alternative route in Nebraska [that was not approved by the state Public Service Commission until November 2017]. That plainly violates the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), and the Administrative Procedure Act (APA).”

Plaintiffs also argue that the State Dept.’s 2014 environmental review (EIS) for Keystone XL is unacceptably stale, because it contains outdated information about oil prices, crude by rail, oil spills, and modeling greenhouse gas emissions.

“Oil prices have dropped and remained low for years, contrary to the EIS’s prediction that they would stay high. And the amount of tar sands transported by rail remains flat (even after the State Department denied Keystone XL in 2015), contrary to the EIS’s prediction that train transportation would rise exponentially to fill any gaps in pipeline capacity. Defendants’ only response to these new facts is to deemphasize their importance. But these were crucial assumptions that the State Department relied on to conclude that Keystone XL would not affect tar sands development. The State Department must update its EIS to reflect these changes.”

“The agencies’ conclusions that (Keystone XL) would not harm our climate or the endangered species in its pathway are not only arbitrary and capricious, but contrary to common sense,” the groups argued.

Oral arguments in the case are scheduled for 10:00 a.m. on May 24 at the U.S. District Courthouse in Great Falls (125 Central Ave W, Great Falls, MT 59404).

A Rally to Protect Our Water from KXL will also be held on the eve of the hearing, May 23rd, featuring speakers and a march to the park adjacent to the courthouse where the hearing will be held.

  • WHAT: Rally to Protect Our Water from KXL
  • WHO: Landowners, Indigenous and environment groups including plaintiffs Northern Plains Resource Council, Bold Alliance, Sierra Club, Natural Resources Defense Council, Center for Biological Diversity.
  • WHEN: Wednesday, May 23, 4:30 p.m. – 7:00 p.m.
    • 4:30 p.m: Gather at Elks Riverside Park, River’s Edge Trail, Great Falls, MT (map)
    • 5:00 p.m: Speakers begin at Elks Riverside Park
    • 5:30 p.m: March to West Bank Park (behind Missouri River Federal Courthouse) at 1600 4th St NE, Great Falls, MT 59404
    • 7:00 p.m: Rally concludes

Northern Plains et al. brief seeking summary judgment

Judge’s Order re: Trump admin. production of documents

U.S. Government brief

TransCanada brief