NEW YORK Opponents of two controversial oil
pipelines face a long and difficult legal path if the U.S.
government approves their construction, experts said after the
Trump administration issued orders on Tuesday intended to
advance the Keystone XL and Dakota Access projects.
U.S. President Donald Trump issued a pair of memoranda to
several agencies paving the way to revive Keystone XL, which
would bring oil from Canada, and Dakota Access, a nearly
completed pipeline which had sought to build under a lake near a
Native American reservation in North Dakota. Both projects
stalled under former President Barack Obama.
“Presidents are by and large entitled to take their agencies
in a different direction and serve their policy goals,” said
Wayne D’Angelo, an energy and environmental lawyer with Kelley
Drye & Warren in Washington.
Nevertheless, several groups immediately said they would
challenge in court any attempt to resume the projects, which
have become hot-button political issues at the intersection of
environmentalism, Native American tribal rights and energy
The two pipelines could present different legal obstacles
for environmentalists and other groups intent on halting them.
As a cross-border project, the $8 billion Keystone XL
requires a presidential permit to proceed. Obama denied such a
permit to pipeline operator TransCanada Corp in 2015,
arguing it would undermine the United States’ ability to act as
a world leader on climate change policy.
Trump’s Keystone order on Wednesday invited TransCanada to
Presidential authority to grant such permits is generally
accepted by the courts, said James Rubin, an energy and
environmental attorney at Dorsey & Whitney in Washington.
Even with presidential approval, TransCanada would need
permits from other government agencies, including the U.S.
Department of the Interior and the U.S. Army Corps of Engineers,
to navigate federal waters and lands. Any of those permits could
be legally challenged by opponents as improperly issued.
But courts would not review whether the government’s
decisions were correct. Instead, they would consider whether the
conclusions were “arbitrary and capricious” or inconsistent with
the evidence before the agencies.
“If the agency issuing the permit has taken all the right
steps and made a reasonable determination, it’s hard to overturn
them,” Rubin said. “The court can’t tell an agency what to do.
It can only make sure that it did it right. It’s a review of the
process, not the substance.”
In the case of the 1,179-mile (1,900-km) Keystone XL
pipeline, the U.S. government previously completed an
environmental impact statement that concluded the pipeline would
have no significant effect on climate change, making it more
difficult for a legal challenge to succeed, D’Angelo said.
Energy Transfer Partners LP’s Dakota project,
meanwhile, was halted in December when the Army Corps denied an
easement to tunnel under a section of the Missouri River after
weeks of protests by the Standing Rock Sioux tribe and its
Trump’s Dakota order on Tuesday did not instruct the corps
to change its position. But the president ordered the agency to
consider “whether to rescind or modify” its December
If the corps abruptly reverses its decision, opponents could
argue the agency had no justification for changing course in the
absence of any new evidence. Earthjustice, the nonprofit that
has led legal challenges to the Dakota project, said it would
fight any attempt by the corps to step back from its December
“If the corps issues the easement, it will violate its own
prior findings, and we will likely seek court review of that
decision,” the group said in a statement.
But D’Angelo pointed out that the corps’ December decision
was itself a reversal of one in July granting the easement
before the protests became widespread. Courts have traditionally
taken into account that new presidential administrations may
bring different priorities to executive agencies.
“I don’t know anyone in the world that believes that the
late-breaking changes on those projects were anything but
political,” he said.
The Standing Rock Sioux are also suing the government for
not consulting with the tribe before approving the route. Last
year, a judge denied the tribe’s request for an injunction
stopping the work, a signal the judge did not view its claim as
likely to succeed.
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