Illegal Permit a Sign of White House Desperate for a KXL Win

Trump’s new Keystone XL permit isn’t just an attack on our clean air, water, and property rights, but also the American democratic system.

Reprinted from Northern Plains newsletter.

President Trump made news on March 29 by issuing a new Presidential Permit to TransCanada for its proposed Keystone XL tar sands pipeline. Per the White House’s official memorandum, the new permit would authorize: “TransCanada Keystone Pipeline, L.P. to construct, connect, operate, and maintain pipeline facilities at the international boundary between the United States and Canada.” His order “supersedes,” (according to him) the prior permit, which was granted on March 23, 2017 – the one we’ve been successfully challenging in federal court.

Then he signed an executive order on April 10 during an event with the International Union of Operating Engineers in Texas intended to “clarify” that the president is solely responsible for approving or denying pipelines and other infrastructure that cross international boundaries. The secretary of state has previously played that role – including in the case of the Keystone XL pipeline.

Desperate times seem to call for desperate measures, and Trump has clearly become desperate to save the sinking Keystone XL project. Trump was losing. We had won in district court and were well positioned to withstand appeal this summer. We had won the related issue of the pre-construction injunction. A new environmental impact statement is to be conducted to show the need and environmental considerations of the project.

Desperate times seem to call for desperate measures, and Trump has clearly become desperate to save the sinking Keystone XL project. Trump was losing.

Really, the only thing that’s changed is the name on the permit. Why this is so significant is that it allows the White House to make the case that the project is not subject to environmental review by way of the National Environmental Policy Act. Agencies, including the State Department, the prior signer of the permit, are clearly subject to NEPA and their actions are reviewable by court. Presidential actions are less clear on this matter.

As of now, Northern Plains hasn’t legally challenged his new permit (the Indigenous Environmental Network did file a new lawsuit). We are currently focused on determining how the new permit will affect our existing lawsuit, if at all, before we decide next steps.

On April 8, the U.S. Government and TransCanada filed a motion to dismiss our existing lawsuit against the 2017 permit. They want the district court’s decisions to be vacated and the pre-construction injunction to be dissolved. Our response to this motion is due April 23.

Trump didn’t like what the courts were doing, so he conjured up a work-around.  We contend that not only are President Trump’s latest actions an attack on our clean air, water, and property rights, but also an attack on our most basic democratic rights.

America’s system of checks and balances – a system built upon three independent, coequal branches of government – is certainly being tested by this administration. Trump didn’t like what the courts were doing, so he conjured up a work-around.  We contend that not only are President Trump’s latest actions an attack on our clean air, water, and property rights, but also an attack on our most basic democratic rights. We’ll continue to do all we can to fight back, including by participating in the new Environmental Impact Statement process, which we have heard is slated to continue by the State Department despite Trump’s actions.

Read more oil and gas stories here.


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