WEBVTT - Keystone XL Future at Risk After Latest Lawsuit (Audio)

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<v Speaker 1>After years of legal and political arguing over the Keystone

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<v Speaker 1>Xcel pipeline, the Obama administration denied a permit to construct it,

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<v Speaker 1>but last week President Trump reversed that decision and said

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<v Speaker 1>the pipeline could proceed. The president's decision, however, did not

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<v Speaker 1>end the fight over the pipeline. First, several Native American

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<v Speaker 1>groups filed suit in federal court in Montana, and now

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<v Speaker 1>the Sierra Club and other environmental advocacy groups have filed

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<v Speaker 1>a lawsuit in the same court. Here to talk with

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<v Speaker 1>us about the litigation to stop the pipeline are Receivers,

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<v Speaker 1>director of the Environmental Environmental Law Clinic at Stanford Law

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<v Speaker 1>School and Evan's old and a professor at the University

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<v Speaker 1>of Toledo College of Law. Debora tell us what the

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<v Speaker 1>Sierra Club and these other plaintiffs are alleging uh in

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<v Speaker 1>order to try to stop the President's decision to allow

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<v Speaker 1>the pipeline to go into effect. Sure, the complaint that

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<v Speaker 1>was filed on Thursday by the environmental groups really focuses

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<v Speaker 1>on the claims under the National Environmental Policy Act and

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<v Speaker 1>under the sort of general Administrative Procedure Act, and what

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<v Speaker 1>they're alleging is that UM there has not been enough

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<v Speaker 1>review of of the environmental impacts from the pipeline. There

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<v Speaker 1>is an environmental review that was done a while back,

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<v Speaker 1>but they're alleging that there's new information about the dangers

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<v Speaker 1>posed by the particular kind of oil coming out of Alberta, UM,

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<v Speaker 1>and new information about the price of oil and how

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<v Speaker 1>that might affect whether UM this pipeline would facilitate UH

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<v Speaker 1>more getting more oil out of the ground than would

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<v Speaker 1>otherwise happen. So they're alleging that those those things have

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<v Speaker 1>not been adequately considered in the State Department's approval, and

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<v Speaker 1>also that the State Department has not articulated a reason

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<v Speaker 1>for a legitimate reason for reversing the Obama administration decision. Evan.

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<v Speaker 1>Are there any differences between the suits by the two groups,

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<v Speaker 1>the environmental groups and the Native American groups. There are

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<v Speaker 1>a couple of differences. The arguments are basically the same,

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<v Speaker 1>the claims are basically the same. UM. The UH the

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<v Speaker 1>complete was filed earlier in the week, has a little

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<v Speaker 1>more detail, has more detail about UM the environmental risks

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<v Speaker 1>associated with the the pipeline, and as a little bit

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<v Speaker 1>of legal arguments, neither one of which is necessary or

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<v Speaker 1>even typical at this stage in the federal case. So

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<v Speaker 1>I would say that even though they do look different,

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<v Speaker 1>they are essentially making the same claims. Bro the what

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<v Speaker 1>are the arguments that's getting made here is that the

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<v Speaker 1>old and the environmental impact statement is from two thousand fourteen.

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<v Speaker 1>Um it's the planeffs are arguing it's stale. They should

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<v Speaker 1>you know that it And it also doesn't take into

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<v Speaker 1>account a lot of the information that you mentioned. What

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<v Speaker 1>is the law in terms of how recent an environmental

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<v Speaker 1>impact statement has to be in order for it to

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<v Speaker 1>be valid. Yeah, there's no clear bright line about when

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<v Speaker 1>an EI ask like that goes stale. But um so

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<v Speaker 1>it depends on what evidence the plaintiffs will bring forward

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<v Speaker 1>to support their claim that there's new information that should

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<v Speaker 1>have been considered. And I think in particularly environmental groups

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<v Speaker 1>are focusing on a study by the National Academy of

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<v Speaker 1>Sciences that was released a year or so ago that

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<v Speaker 1>um uh, that really talks in more detail about the

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<v Speaker 1>specific dangers of this kind of oil and how it's

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<v Speaker 1>it's more difficult to react to a spill of oil.

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<v Speaker 1>You know, we have spills from pipelines and and other

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<v Speaker 1>oil facilities and so they want so part of what

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<v Speaker 1>they're arguing is that that that that the e I

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<v Speaker 1>S needs to be updated in order to incorporate that

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<v Speaker 1>new information. So again there's no bright line. It depends

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<v Speaker 1>if they can put forward enough information to convince the

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<v Speaker 1>court that the that that the the e I S

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<v Speaker 1>needs to be updated. Evan, can you anticipate what the

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<v Speaker 1>government's response is likely to be? It can't just be

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<v Speaker 1>new president, new order, right, Well, so the first thing

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<v Speaker 1>to keep in mind is that at this stage there

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<v Speaker 1>is not really going to be um an argument about

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<v Speaker 1>the underlying merits, and so the first thing is going

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<v Speaker 1>to happen is the government is going to move to

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<v Speaker 1>dismiss and the complaints and at this point there's not

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<v Speaker 1>going to be a lot of argument about the underlying facts.

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<v Speaker 1>So at this first stage, when the government moves to dismiss,

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<v Speaker 1>it's going to um accept the purposes of the of

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<v Speaker 1>its motion. These facts as they are stated. It's going

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<v Speaker 1>to make legal arts mentioned. So what what the court

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<v Speaker 1>is going to have to decide in the first instance

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<v Speaker 1>is just say the legal question of whether the plaintes

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<v Speaker 1>have stated a claim, that is, whether they have UH

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<v Speaker 1>noted any facts for which the law provides legal redress.

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<v Speaker 1>So we're not gonna see a lot of uh doaking

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<v Speaker 1>doking it out on the facts of this stage in

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<v Speaker 1>the litigation. Deborah, do you think there will be some

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<v Speaker 1>we have about thirty seconds here. Do you think, well,

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<v Speaker 1>there will be a motion for an injunction or is

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<v Speaker 1>this just going to play out over a longer period

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<v Speaker 1>of time. I'm not sure about that because there's as

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<v Speaker 1>you probably know, that this is not the end of

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<v Speaker 1>the line. So in particular for this particular segment, which

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<v Speaker 1>is kind of the hypot news of a triangle um,

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<v Speaker 1>the pipeline would have to go go through Nebraska, and

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<v Speaker 1>there is a whole another state process that's going on

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<v Speaker 1>in Nebraska. So I'm not sure whether the plaintiffs will

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<v Speaker 1>ask for an injunction. It might be kind of hard

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<v Speaker 1>to get at this point because there's no imminent harm

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<v Speaker 1>that the pipeline is going to be built um in

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<v Speaker 1>these early early times. And I do agree that I

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<v Speaker 1>think the government's going to move to dismiss primarily or

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<v Speaker 1>at least one of the claims, being that it doesn't

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<v Speaker 1>even have to do an e I S for this project.

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<v Speaker 1>I think they're taking a position that these permits are

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<v Speaker 1>fully discretionary and although the State Department did did an

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<v Speaker 1>e I S, it didn't have to. Al Right, Well,

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<v Speaker 1>we're going to talk more about the ongoing fight, which

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<v Speaker 1>who knows when it will end over the Keystone XCEL pipeline.

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<v Speaker 1>In a reversal of one of the prior administration's major decisions,

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<v Speaker 1>President Trump last week approved construction of the Keystone XL

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<v Speaker 1>pipeline that will run from Canada to Nebraska. But environmental

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<v Speaker 1>and Native American groups are now suing to prevent the

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<v Speaker 1>pipeline going forward. And so the many years of controversy

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<v Speaker 1>over this pipeline did not come to a close with

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<v Speaker 1>the president's decision last week. We are talking about the

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<v Speaker 1>new litigation with deb Receives, the director of the Environmental

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<v Speaker 1>Law Clinic at Stanford University, and Evans Old and professor

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<v Speaker 1>at the University of Toledo College of Law. Evan, you

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<v Speaker 1>had one president's administration say that the pipeline would not

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<v Speaker 1>be allowed to go forward, they wouldn't get a permit

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<v Speaker 1>to come across from Canada. Now you have a new president.

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<v Speaker 1>New administration came in with different policies and they with

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<v Speaker 1>the same background of information reverse the decision and say

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<v Speaker 1>that the pipeline can proceed. Is that does that cause

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<v Speaker 1>any legal issues? Is it okay for an administration to

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<v Speaker 1>just reverse what the prior administration did. That's a great question.

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<v Speaker 1>So there is a a long tradition UH, including a

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<v Speaker 1>statut cult the Administrative Procedure Act, that is quite skeptical

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<v Speaker 1>of the agency changes of um UH policy just based

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<v Speaker 1>on the change of administration. And so the question that

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<v Speaker 1>the court is going to ask is is this change

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<v Speaker 1>in policy arbitrary or capricious? Now it's not a it's

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<v Speaker 1>not a clear cut question because there definitely his authority,

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<v Speaker 1>including Supreme Court UM at times has upheld changes in policy.

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<v Speaker 1>It seemed to be supported by nothing more than the

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<v Speaker 1>fact that the administration changed. On the other hand, sometimes

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<v Speaker 1>courts say, well, now you need to provide more information

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<v Speaker 1>than just that was and this is now in order

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<v Speaker 1>to justify a change in policy. And I'll tell you

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<v Speaker 1>the one thing that's very interesting about this is that

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<v Speaker 1>UM A court is more likely to defer to the

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<v Speaker 1>agency to the extent that the court UM is going

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<v Speaker 1>to apply what's called Chevron deference. And Chevron is the

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<v Speaker 1>name of the Supreme Court case that um that directs

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<v Speaker 1>courts to defer to agency determinations. And what's interesting about

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<v Speaker 1>that is that in general the Republicans and Congress, particularly

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<v Speaker 1>in the House, have been very opposed to a strong

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<v Speaker 1>Chevron deference. And so if they have their way and

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<v Speaker 1>are able to, either through legislation or through the confirmation

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<v Speaker 1>of Judge Gorcium, restrained the power of Chevron deference, it

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<v Speaker 1>would mean that it is less likely that changes in

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<v Speaker 1>policy like the woman we just saw are going to

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<v Speaker 1>be upheld by courts on review. Which side has the

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<v Speaker 1>stronger argument? Um, Well, yeah, I think it's it's a

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<v Speaker 1>bit of a toss up here because there is a

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<v Speaker 1>document when the State Department reversed this recent reverseless a

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<v Speaker 1>few days ago. Uh. They they put out of documents

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<v Speaker 1>like thirty pages long. That kind of is their explanation.

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<v Speaker 1>So just as we were saying, they have to at

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<v Speaker 1>least give some explanation to make the decision not arbitrary

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<v Speaker 1>and capricious and and and you know, so it's hard

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<v Speaker 1>to handicap because there are some legitimate arguments that there's

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<v Speaker 1>new information that should have been considered and that it

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<v Speaker 1>was arbitrary to simply reverse the decision. On the other hand,

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<v Speaker 1>as uh, as we just heard, the there is deference

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<v Speaker 1>to the agency, especially UM in this arena where it's

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<v Speaker 1>a kind of a for the reason there's a presidential

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<v Speaker 1>permit is that it's it's the pipeline goes across borders,

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<v Speaker 1>and so it's kind of a foreign affairs issue, which

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<v Speaker 1>is even more deference to the at the presidential level.

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<v Speaker 1>So I I don't know, um uh, you know who

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<v Speaker 1>ultimately might might win out on this one. I think

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<v Speaker 1>it's kind of a toss up, and it all depends

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<v Speaker 1>on whether the judge thinks there's enough um explanation uh

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<v Speaker 1>for for why the State Department reverse course? Well, Evan

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<v Speaker 1>environmental litigation can often take up a lot of time,

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<v Speaker 1>and the this is not an environmental impact statement that

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<v Speaker 1>has really ever been looked at by a court because

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<v Speaker 1>the prior administration denied the permit, so you didn't have

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<v Speaker 1>litigation about where the I E I S was sufficient.

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<v Speaker 1>What is the court going to do when it looks

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<v Speaker 1>at the E I s now, how searching an inquiry

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<v Speaker 1>will it do? Well? The inquiry the court is going

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<v Speaker 1>to make is um is when they're gonna ask how

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<v Speaker 1>how hard of a look did the agency take at

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<v Speaker 1>the UM the underlying policy decision. And so they're going

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<v Speaker 1>to ask did the State Department UM comply with the

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<v Speaker 1>the law, the National Environmental Policy Act and putting together

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<v Speaker 1>uh the environmental Impact Statement. They're going to ask whether

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<v Speaker 1>or not UM they complied with the regulations about asking

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<v Speaker 1>for comment from the public UM. And then the court

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<v Speaker 1>is going to evaluate whether, given the the way that

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<v Speaker 1>the environmental environmental impacts they WOS put together, whether the

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<v Speaker 1>agency took a hard look at the at the facts

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<v Speaker 1>that have collected before it made its policy decisions. Debra,

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<v Speaker 1>one last thing, how long given all that, do you

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<v Speaker 1>think this will go on for? I think these cases

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<v Speaker 1>don't move super quickly. I mean, as we talked about earlier,

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<v Speaker 1>there might be a request for some kind of injunction

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<v Speaker 1>but and there's probably going to be a motion to dismiss.

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<v Speaker 1>But but if neither of those things happen, then you

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<v Speaker 1>know you kind of are in for the long haul.

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<v Speaker 1>There's a record the agency would produce, and they would

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<v Speaker 1>they would set briefing schedule and argument and that that

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<v Speaker 1>could take quite a while. UM. Typically these cases go

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<v Speaker 1>on for a year or more. Well, our thanks to

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<v Speaker 1>receive us the director of the Environmental Law Clinic at

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<v Speaker 1>Stanford University Law School, and Evans Aldawn, a professor at

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<v Speaker 1>the University of Toledo College of Law, for being here

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<v Speaker 1>on Bloomberg Law to talk about new litigation over the

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<v Speaker 1>Keystone XL pipeline. Coming up on Bloomberg Law, we're gonna

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<v Speaker 1>be talking about Texas Attorney General Ken Paxton. He was

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<v Speaker 1>once the scourge of the Obama administration, or at least

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<v Speaker 1>one of them, took them to court on everything, but

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<v Speaker 1>now he is facing UH securities fraud charges in Texas

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<v Speaker 1>and he lost a couple of key rulings in court.

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<v Speaker 1>That's coming up on Bloomberg Law. This is Bloomberg