Speaker 1: After years of legal and political arguing over the Keystone
Speaker 1: Xcel pipeline, the Obama administration denied a permit to construct it,
Speaker 1: but last week President Trump reversed that decision and said
Speaker 1: the pipeline could proceed. The president's decision, however, did not
Speaker 1: end the fight over the pipeline. First, several Native American
Speaker 1: groups filed suit in federal court in Montana, and now
Speaker 1: the Sierra Club and other environmental advocacy groups have filed
Speaker 1: a lawsuit in the same court. Here to talk with
Speaker 1: us about the litigation to stop the pipeline are Receivers,
Speaker 1: director of the Environmental Environmental Law Clinic at Stanford Law
Speaker 1: School and Evan's old and a professor at the University
Speaker 1: of Toledo College of Law. Debora tell us what the
Speaker 1: Sierra Club and these other plaintiffs are alleging uh in
Speaker 1: order to try to stop the President's decision to allow
Speaker 1: the pipeline to go into effect. Sure, the complaint that
Speaker 1: was filed on Thursday by the environmental groups really focuses
Speaker 1: on the claims under the National Environmental Policy Act and
Speaker 1: under the sort of general Administrative Procedure Act, and what
Speaker 1: they're alleging is that UM there has not been enough
Speaker 1: review of of the environmental impacts from the pipeline. There
Speaker 1: is an environmental review that was done a while back,
Speaker 1: but they're alleging that there's new information about the dangers
Speaker 1: posed by the particular kind of oil coming out of Alberta, UM,
Speaker 1: and new information about the price of oil and how
Speaker 1: that might affect whether UM this pipeline would facilitate UH
Speaker 1: more getting more oil out of the ground than would
Speaker 1: otherwise happen. So they're alleging that those those things have
Speaker 1: not been adequately considered in the State Department's approval, and
Speaker 1: also that the State Department has not articulated a reason
Speaker 1: for a legitimate reason for reversing the Obama administration decision. Evan.
Speaker 1: Are there any differences between the suits by the two groups,
Speaker 1: the environmental groups and the Native American groups. There are
Speaker 1: a couple of differences. The arguments are basically the same,
Speaker 1: the claims are basically the same. UM. The UH the
Speaker 1: complete was filed earlier in the week, has a little
Speaker 1: more detail, has more detail about UM the environmental risks
Speaker 1: associated with the the pipeline, and as a little bit
Speaker 1: of legal arguments, neither one of which is necessary or
Speaker 1: even typical at this stage in the federal case. So
Speaker 1: I would say that even though they do look different,
Speaker 1: they are essentially making the same claims. Bro the what
Speaker 1: are the arguments that's getting made here is that the
Speaker 1: old and the environmental impact statement is from two thousand fourteen.
Speaker 1: Um it's the planeffs are arguing it's stale. They should
Speaker 1: you know that it And it also doesn't take into
Speaker 1: account a lot of the information that you mentioned. What
Speaker 1: is the law in terms of how recent an environmental
Speaker 1: impact statement has to be in order for it to
Speaker 1: be valid. Yeah, there's no clear bright line about when
Speaker 1: an EI ask like that goes stale. But um so
Speaker 1: it depends on what evidence the plaintiffs will bring forward
Speaker 1: to support their claim that there's new information that should
Speaker 1: have been considered. And I think in particularly environmental groups
Speaker 1: are focusing on a study by the National Academy of
Speaker 1: Sciences that was released a year or so ago that
Speaker 1: um uh, that really talks in more detail about the
Speaker 1: specific dangers of this kind of oil and how it's
Speaker 1: it's more difficult to react to a spill of oil.
Speaker 1: You know, we have spills from pipelines and and other
Speaker 1: oil facilities and so they want so part of what
Speaker 1: they're arguing is that that that that the e I
Speaker 1: S needs to be updated in order to incorporate that
Speaker 1: new information. So again there's no bright line. It depends
Speaker 1: if they can put forward enough information to convince the
Speaker 1: court that the that that the the e I S
Speaker 1: needs to be updated. Evan, can you anticipate what the
Speaker 1: government's response is likely to be? It can't just be
Speaker 1: new president, new order, right, Well, so the first thing
Speaker 1: to keep in mind is that at this stage there
Speaker 1: is not really going to be um an argument about
Speaker 1: the underlying merits, and so the first thing is going
Speaker 1: to happen is the government is going to move to
Speaker 1: dismiss and the complaints and at this point there's not
Speaker 1: going to be a lot of argument about the underlying facts.
Speaker 1: So at this first stage, when the government moves to dismiss,
Speaker 1: it's going to um accept the purposes of the of
Speaker 1: its motion. These facts as they are stated. It's going
Speaker 1: to make legal arts mentioned. So what what the court
Speaker 1: is going to have to decide in the first instance
Speaker 1: is just say the legal question of whether the plaintes
Speaker 1: have stated a claim, that is, whether they have UH
Speaker 1: noted any facts for which the law provides legal redress.
Speaker 1: So we're not gonna see a lot of uh doaking
Speaker 1: doking it out on the facts of this stage in
Speaker 1: the litigation. Deborah, do you think there will be some
Speaker 1: we have about thirty seconds here. Do you think, well,
Speaker 1: there will be a motion for an injunction or is
Speaker 1: this just going to play out over a longer period
Speaker 1: of time. I'm not sure about that because there's as
Speaker 1: you probably know, that this is not the end of
Speaker 1: the line. So in particular for this particular segment, which
Speaker 1: is kind of the hypot news of a triangle um,
Speaker 1: the pipeline would have to go go through Nebraska, and
Speaker 1: there is a whole another state process that's going on
Speaker 1: in Nebraska. So I'm not sure whether the plaintiffs will
Speaker 1: ask for an injunction. It might be kind of hard
Speaker 1: to get at this point because there's no imminent harm
Speaker 1: that the pipeline is going to be built um in
Speaker 1: these early early times. And I do agree that I
Speaker 1: think the government's going to move to dismiss primarily or
Speaker 1: at least one of the claims, being that it doesn't
Speaker 1: even have to do an e I S for this project.
Speaker 1: I think they're taking a position that these permits are
Speaker 1: fully discretionary and although the State Department did did an
Speaker 1: e I S, it didn't have to. Al Right, Well,
Speaker 1: we're going to talk more about the ongoing fight, which
Speaker 1: who knows when it will end over the Keystone XCEL pipeline.
Speaker 1: In a reversal of one of the prior administration's major decisions,
Speaker 1: President Trump last week approved construction of the Keystone XL
Speaker 1: pipeline that will run from Canada to Nebraska. But environmental
Speaker 1: and Native American groups are now suing to prevent the
Speaker 1: pipeline going forward. And so the many years of controversy
Speaker 1: over this pipeline did not come to a close with
Speaker 1: the president's decision last week. We are talking about the
Speaker 1: new litigation with deb Receives, the director of the Environmental
Speaker 1: Law Clinic at Stanford University, and Evans Old and professor
Speaker 1: at the University of Toledo College of Law. Evan, you
Speaker 1: had one president's administration say that the pipeline would not
Speaker 1: be allowed to go forward, they wouldn't get a permit
Speaker 1: to come across from Canada. Now you have a new president.
Speaker 1: New administration came in with different policies and they with
Speaker 1: the same background of information reverse the decision and say
Speaker 1: that the pipeline can proceed. Is that does that cause
Speaker 1: any legal issues? Is it okay for an administration to
Speaker 1: just reverse what the prior administration did. That's a great question.
Speaker 1: So there is a a long tradition UH, including a
Speaker 1: statut cult the Administrative Procedure Act, that is quite skeptical
Speaker 1: of the agency changes of um UH policy just based
Speaker 1: on the change of administration. And so the question that
Speaker 1: the court is going to ask is is this change
Speaker 1: in policy arbitrary or capricious? Now it's not a it's
Speaker 1: not a clear cut question because there definitely his authority,
Speaker 1: including Supreme Court UM at times has upheld changes in policy.
Speaker 1: It seemed to be supported by nothing more than the
Speaker 1: fact that the administration changed. On the other hand, sometimes
Speaker 1: courts say, well, now you need to provide more information
Speaker 1: than just that was and this is now in order
Speaker 1: to justify a change in policy. And I'll tell you
Speaker 1: the one thing that's very interesting about this is that
Speaker 1: UM A court is more likely to defer to the
Speaker 1: agency to the extent that the court UM is going
Speaker 1: to apply what's called Chevron deference. And Chevron is the
Speaker 1: name of the Supreme Court case that um that directs
Speaker 1: courts to defer to agency determinations. And what's interesting about
Speaker 1: that is that in general the Republicans and Congress, particularly
Speaker 1: in the House, have been very opposed to a strong
Speaker 1: Chevron deference. And so if they have their way and
Speaker 1: are able to, either through legislation or through the confirmation
Speaker 1: of Judge Gorcium, restrained the power of Chevron deference, it
Speaker 1: would mean that it is less likely that changes in
Speaker 1: policy like the woman we just saw are going to
Speaker 1: be upheld by courts on review. Which side has the
Speaker 1: stronger argument? Um, Well, yeah, I think it's it's a
Speaker 1: bit of a toss up here because there is a
Speaker 1: document when the State Department reversed this recent reverseless a
Speaker 1: few days ago. Uh. They they put out of documents
Speaker 1: like thirty pages long. That kind of is their explanation.
Speaker 1: So just as we were saying, they have to at
Speaker 1: least give some explanation to make the decision not arbitrary
Speaker 1: and capricious and and and you know, so it's hard
Speaker 1: to handicap because there are some legitimate arguments that there's
Speaker 1: new information that should have been considered and that it
Speaker 1: was arbitrary to simply reverse the decision. On the other hand,
Speaker 1: as uh, as we just heard, the there is deference
Speaker 1: to the agency, especially UM in this arena where it's
Speaker 1: a kind of a for the reason there's a presidential
Speaker 1: permit is that it's it's the pipeline goes across borders,
Speaker 1: and so it's kind of a foreign affairs issue, which
Speaker 1: is even more deference to the at the presidential level.
Speaker 1: So I I don't know, um uh, you know who
Speaker 1: ultimately might might win out on this one. I think
Speaker 1: it's kind of a toss up, and it all depends
Speaker 1: on whether the judge thinks there's enough um explanation uh
Speaker 1: for for why the State Department reverse course? Well, Evan
Speaker 1: environmental litigation can often take up a lot of time,
Speaker 1: and the this is not an environmental impact statement that
Speaker 1: has really ever been looked at by a court because
Speaker 1: the prior administration denied the permit, so you didn't have
Speaker 1: litigation about where the I E I S was sufficient.
Speaker 1: What is the court going to do when it looks
Speaker 1: at the E I s now, how searching an inquiry
Speaker 1: will it do? Well? The inquiry the court is going
Speaker 1: to make is um is when they're gonna ask how
Speaker 1: how hard of a look did the agency take at
Speaker 1: the UM the underlying policy decision. And so they're going
Speaker 1: to ask did the State Department UM comply with the
Speaker 1: the law, the National Environmental Policy Act and putting together
Speaker 1: uh the environmental Impact Statement. They're going to ask whether
Speaker 1: or not UM they complied with the regulations about asking
Speaker 1: for comment from the public UM. And then the court
Speaker 1: is going to evaluate whether, given the the way that
Speaker 1: the environmental environmental impacts they WOS put together, whether the
Speaker 1: agency took a hard look at the at the facts
Speaker 1: that have collected before it made its policy decisions. Debra,
Speaker 1: one last thing, how long given all that, do you
Speaker 1: think this will go on for? I think these cases
Speaker 1: don't move super quickly. I mean, as we talked about earlier,
Speaker 1: there might be a request for some kind of injunction
Speaker 1: but and there's probably going to be a motion to dismiss.
Speaker 1: But but if neither of those things happen, then you
Speaker 1: know you kind of are in for the long haul.
Speaker 1: There's a record the agency would produce, and they would
Speaker 1: they would set briefing schedule and argument and that that
Speaker 1: could take quite a while. UM. Typically these cases go
Speaker 1: on for a year or more. Well, our thanks to
Speaker 1: receive us the director of the Environmental Law Clinic at
Speaker 1: Stanford University Law School, and Evans Aldawn, a professor at
Speaker 1: the University of Toledo College of Law, for being here
Speaker 1: on Bloomberg Law to talk about new litigation over the
Speaker 1: Keystone XL pipeline. Coming up on Bloomberg Law, we're gonna
Speaker 1: be talking about Texas Attorney General Ken Paxton. He was
Speaker 1: once the scourge of the Obama administration, or at least
Speaker 1: one of them, took them to court on everything, but
Speaker 1: now he is facing UH securities fraud charges in Texas
Speaker 1: and he lost a couple of key rulings in court.
Speaker 1: That's coming up on Bloomberg Law. This is Bloomberg