347 F. Supp. 3d 561
D. Mont.2018Background
- Plaintiffs (Indigenous Environmental Network and Northern Plains Resource Council) challenged the State Department’s 2017 Record of Decision (ROD), National Interest Determination, and Presidential Permit for the Keystone XL pipeline under the APA, NEPA, and ESA.
- The court previously ordered the Department to supplement the 2014 Supplemental EIS (SEIS) to address Nebraska’s approved Mainline Alternative route but did not vacate the permit at that time.
- The Department issued notices to prepare and to release a draft SEIS in September 2018; summary judgment motions followed.
- The court reviewed whether the Department took a “hard look” under NEPA (purpose & need, alternatives, no-action, cumulative impacts, cultural resources, spills) and whether the Department and FWS met ESA Section 7 obligations using the best available science.
- The court found multiple deficiencies: failure to analyze (1) effects of changed oil prices on project viability, (2) cumulative GHG emissions including the Alberta Clipper expansion and to apply updated GREET modeling, (3) surveys of 1,038 unsurveyed acres for cultural resources, and (4) updated oil-spill evidence and mitigation; it also held the Department inadequately explained its reversal between the 2015 denial and the 2017 approval on climate-policy grounds.
- Remedies: the court vacated the 2017 ROD, enjoined construction and operation pending a compliant SEIS supplement, and remanded the BA/BiOp to address spill impacts on listed species (without yet ordering full re-initiation of consultation).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| NEPA purpose & need | Purpose was unreasonably narrow, tailored to TransCanada’s private interests | Secretary may consider applicant objectives and national-interest factors | Held for Defendants: purpose & need reasonable (agency has discretion) |
| Range of alternatives / no-action | Agency excluded reasonable alternatives that didn’t meet TransCanada’s purpose; multiple no-action scenarios improper | Alternatives were bounded by purpose & need; multiple no-action scenarios valid given uncertainty | Held for Defendants: range adequate and multiple no-action scenarios permissible |
| Market analysis / tar sands production (new info) | 2014 SEIS assumed continued high oil prices and rail substitution; post-2014 price collapse and other data require supplement | 2014 SEIS contained extensive modeling; rail capacity predictions still material; changes are immaterial | Held partially for Plaintiffs: drop in oil prices is significant new information—supplement required to analyze effect on viability |
| Cumulative GHG impacts (Alberta Clipper & modeling) | SEIS failed to analyze cumulative emissions and did not use updated GREET model | Cumulative Clipper analysis existed in Clipper EIS; omission harmless | Held for Plaintiffs: failure to analyze cumulative emissions and updated GREET was not harmless—supplement required |
| Cultural resources (unsurveyed acres) | 1,038 acres unsurveyed—agency acted on incomplete information | Surveys were ‘‘ongoing’’ and mitigation would follow | Held for Plaintiffs: supplement required to complete surveys and analyze effects |
| Oil spills (new incidents & cleanup science) | Post-2014 major spills and NAS findings on diluted bitumen cleanup require updated analysis and mitigation | SEIS addressed spill risk and mitigation; new incidents immaterial | Held for Plaintiffs: new spill data and NAS conclusions are significant—supplement required; BA/BiOp remanded to consider spill impacts on listed species |
| Change in course (2015 denial → 2017 approval) | 2017 ROD reversed 2015 factual findings on climate without reasoned explanation | Agency may change policy but must adequately justify ignoring prior findings | Held for Plaintiffs: 2017 ROD vacated—agency failed to provide required reasoned explanation for reversal |
| ESA consultation & species-specific claims (whooping crane, terns/plovers, ferret, bats, orchid) | Agencies failed to use best available science (telemetry), ignored spill effects, and should have consulted regarding extraterritorial impacts | Agencies relied on historical sightings, expert judgment, conservation measures, and Canada’s review for extraterritorial effects | Mixed holdings: telemetry omission not arbitrary; conservation measures for species generally adequate; ESA Section 7 not applied extraterritorially; agencies must reassess spill effects on listed species and remand BA/BiOp |
Key Cases Cited
- Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768 (9th Cir.) (administrative-record summary-judgment review of agency NEPA action)
- Westlands Water Dist. v. U.S. Dept. of Interior, 376 F.3d 853 (9th Cir.) (agency discretion in defining purpose and need)
- Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (U.S. 1989) (supplemental EIS required when new information shows significant environmental effects not previously considered)
- Fox Television Stations, Inc. v. FCC, 556 U.S. 502 (U.S.) (requirements for reasoned explanation when an agency changes course)
- Kake v. U.S. Dept. of Agric., 795 F.3d 956 (9th Cir.) (application of Fox to agency reversals)
- Center for Biological Diversity v. Nat'l Highway Traffic Safety Admin., 538 F.3d 1172 (9th Cir.) (APA arbitrary-and-capricious standard applied to NEPA/agency review)