Shale Law in the Spotlight – UPDATE: Overview and Timeline of Legal Developments Relating to the Keystone XL Pipeline

Written by Chloe Marie – Research Specialist

This article updates a prior article, dated September 12, 2018, that provided information about the Keystone XL Pipeline Project.

On September 10, 2018, Rosebud Sioux Tribe and Fort Belknap Indian Community filed suit against the U.S. Department of State to challenge its approval of a Presidential Permit application on March 23, 2017, allowing the Keystone XL Pipeline Project to start operating.

Before the U.S. District Court for the District of Montana, plaintiffs claimed a lack of public process and environmental review regarding the 2017 permit application. In their complaint, plaintiffs furthermore noted that “only [56] days later and without any public environmental review process, the Department granted TransCanada’s permit application. In comparison, the Department spent 1,216 days reviewing TransCanada’s first permit application and 1,280 days reviewing its second.”

Plaintiffs claim that the Department granted the permit application in 2017 using the “very same record” upon which to base its decision as the prior administration had used to deny such permit application in 2015. Plaintiffs asserted that the Department “did not provide reasoned explanations for why it ignored or countermanded its own previous factual findings, circumstances, and analyses that led to the opposite conclusion.”

The Keystone XL Pipeline would transport tar sands from Canada to the United States. Plaintiffs describe the product to be transported as a “highly toxic and carcinogenic crude oil sludge;” thus, they expressed concerns over the potential impacts that could occur due to the passage of the Keystone XL Pipeline through the Tribes’ sacred sites and ancestral lands. Both Tribes complained that the State Department did not provide reasonable details with respect to the pipeline routing and failed in its obligations to comply with Tribal treaty rights and to protect the Tribes’ cultural resources and historic properties. The Rosebud Sioux Tribe stresses particularly that the pipeline route could adversely affect the Rosebud Sioux Rural Water Supply System, especially in cases of oil spill incidents.

Plaintiffs call the State Department’s decision to grant the 2017 Presidential Permit application “arbitrary, capricious, an abuse of discretion, [and] otherwise not in accordance with law” and thus request the court to rescind, set aside, and declare unlawful the Presidential Permit as well as prohibiting any future activity relating to the construction, connection, operation, and maintenance of the project.

Additional information on Rosebud Tribe et al. v. United States Department of State et al. in the U.S. District Court for the District of Montana (Great Falls Division) is available at docket no. 4:18-cv-00118.

This material is based upon work supported by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture.