Indigenous Environmental Network et al v. United States Department of State et al

Filing 252

SUPPLEMENTAL ORDER REGARDING MOTION TO STAY. TransCanada's Motion to Stay the application of the permanent injunction with respect to its right to engage in the three proposed off-right-of-way activities is GRANTED IN PART, AND DENIED IN PART. SEE ORDER FOR FULL DETAILS. Signed by Judge Brian Morris on 2/15/2019. (SLR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION

INDIGENOUS ENVIRONMENTAL
NETWORK and NORTH COAST
RIVER ALLIANCE,

CV-17-29-GF-BMM
CV-17-31-GF-BMM

and
NORTHERN PLAINS RESOURCE
COUNCIL, et al.,
SUPPLEMENTAL ORDER REGARDING
MOTION TO STAY

Plaintiffs,
vs.
UNITED STATES DEPARTMENT
OF STATE, et al.,
Defendants
and
TRANSCANADA KEYSTONE
PIPELINE and TRANSCANADA
CORPORATION,
Defendant-Intervenors.

Plaintiffs Indigenous Environmental Network and Northern Plains Resource
Council (collectively “Plaintiffs”) moved for summary judgment in this matter.
(Docs. 139 & 145.) The United States Department of State (“Department”) and
TransCanada (collectively “Defendants”) filed cross motions for summary
judgment. (Docs. 170 & 172.)
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The Court granted Plaintiffs’ motions in part, and Defendants’ motions in
part, in the Court’s Order on Plaintiffs’ and Defendants’ Motions for Summary
Judgment (“Summary Judgment Order”). (Doc. 211.) The Court vacated the
Department’s Record of Decision (“ROD”) issued on March 23, 2017. The Court
granted Plaintiffs’ request for injunctive relief and remanded the matter to the
Department for further consideration consistent with the Summary Judgment
Order. Id. The Court entered Final Judgment on November 15, 2018. (Doc. 212.)
TransCanada moved the Court pursuant to Rule 59(e) and Rule 60(b) to
amend the Court’s Summary Judgment Order, and Final Judgment. (Docs. 211 &
212.) TransCanada sought clarification of the Court’s Orders to ensure certain
preliminary project activities would not be enjoined. (Doc. 215.) The Court granted
in part TransCanada’s motion to amend. (Doc. 232.) The Court determined that
TransCanada could conduct activities as defined in Paragraphs 16-17 of the
Ramsay Declaration. (Doc. 216-1 at 6-7.) The Court allowed TransCanada to
conduct cultural, biological, civil and other surveys, and to maintain security at
project sites, as set forth in Paragraph 18 of the Ramsay Declaration. Id. at 7. All
remaining preconstruction activities outlined in Paragraph 18 remained enjoined in
accordance with the Court’s Summary Judgment Order until the Department has
complied with its NEPA and APA obligations and the Department has issued a
new ROD. (Doc. 211.)
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TransCanada filed a Notice of Appeal on December 21, 2018. (Doc. 233.)
TransCanada also filed a Motion to Stay the permanent injunction pending its
appeal (Doc. 234.) TransCanada asks the Court to allow three off-right-of-way
activities to continue (hereafter “off-right-of-way activities”): (1) preparation of
off-right-way pipe storage and contractor yards; (2) transportation, receipt, and offloading of pipe at off-right-of-way storage yards; and (3) preparation of sites for
off-right-of-way construction camps. TransCanada argues that each of these
activities will involve only private action, will impact only private land, and will
fall beyond the scope of any NEPA analysis. TransCanada further argues that it
will suffer irreparable harm absent a stay of the off-right-of-way activities. Id. at 2.
Finally, TransCanada argues that the off-right-of-way activities serve the public
interest and will not substantially injure Plaintiffs.
LEGAL STANDARD
The United States Supreme Court has set forth a four-factor test for granting
a stay pending appeal: “(1) whether the stay applicant has made a strong showing
that he is likely to succeed on the merits; (2) whether the applicant will be
irreparably injured absent a stay; (3) whether issuance of the stay will substantially
injure the other parties interested in the proceeding; and (4) where the public
interest lies.” Nken v. Holder, 556 U.S. 418, 434 (2009). A party requesting a stay
pending appeal bears the burden of showing that the circumstances justify an
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exercise of the court’s discretion. Lair v. Bullock, 697 F.3d 1200, 1203 (9th Cir.
2012).
DISCUSSION
The Court held a hearing on TransCanada’s Motion to Stay on January 14,
2019. (Doc. 249.) TransCanada discussed further details regarding the importance
of continuing the off-right-of-way activities pending the Department’s NEPA
review and TransCanada’s appeal. TransCanada clarified that it was asking to
continue only the three off-right-of-way activities. TransCanada does not contest
the Court’s decision to enjoin mowing and patrolling the right-of-way to
discourage migratory bird nesting.
TransCanada emphasized that the off-right-of-way activities occur solely on
private land. TransCanada either owns or leases this private land from private
parties. Further, TransCanada asserted that none of the off-right-of-way activities
would be subject to the NEPA review process. TransCanada submitted an updated
Status Report. (Doc. 246.) The updated Status Report demonstrates that the offright-of-way activities will not cross or be in proximity to water bodies, will not
involve removal of trees, and will not involve the application of pesticides or
herbicides. (Doc. 246-1 at 9.) Further, TransCanada asserts that the proposed offright-of-way activities will occur in areas that already have been surveyed for the
presence of protected species and cultural resources. Id at 9-10. Finally,
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TransCanada alleges that it has obtained all state and local permits needed to
perform the activities. Id. The Court makes the following determinations in light
of the new information presented at the hearing.
I.

TransCanada’s Likelihood of Success on the Merits of Its Appeal
TransCanada asserts five arguments in support of its likelihood of success on

appeal. Plaintiffs oppose each argument. The Court will address each of
TransCanada’s arguments in turn.
A. The Department’s Decision to issue the Permit
TransCanada first argues that the Department’s issuance of the cross-border
permit should not be subject to review under NEPA or the APA. (Doc. 235 at 11.)
TransCanada argues that the Department acted pursuant to an express delegation of
the President’s inherent authority over foreign affairs. Id. TransCanada argues that
the Department’s issuance of the permit constituted a presidential action, rather
than an agency action. TransCanada asserts that judicial review would be
inapplicable under these circumstances. Id.
The Court considered two factors in determining whether issuance of the
permit constituted presidential action: 1) whether the President carried out the final
action himself and the manner in which he did so; and 2) whether Congress has
curtailed in any way the President’s authority to direct the “agency” in making

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policy judgments. Natural Res. Def. Council v. U.S. Dep’t of State, 658 F.Supp.2d
105, 111 (D.C. Cir. 2009).
The President waived any right in his Memorandum to review the
Department’s decision under Executive Order 13337. The Department’s obligation
to study the environmental impacts of its decision fundamentally does not stem
from the foreign relations power. The Department’s own NEPA regulations
recognize that the issuance of a Presidential Permit represents a “major
Departmental action” subject to Congress’s mandates in NEPA. 22 C.F.R. §§
161.7, 161.7(c)(1). The Department prepared, on its own initiative, an SEIS and
published a corresponding ROD/NID in this case. (Doc. 61 at 6.)
The Department took final agency action when it published the ROD/NID
for Keystone and issued the accompanying Presidential Permit. The Ninth Circuit
has determined that “once an EIS’s analysis has been solidified in a ROD, the
agency has taken final agency action, reviewable under [APA section] 706(2)(A).”
Or. Nat. Desert Ass’n v. Bureau of Land Mgmt., 625 F.3d 1092, 1118-19 (9th Cir.
2010); Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1088 (9th Cir. 2003). The
publication of the ROD/NID led to the Department’s issuance of the accompanying
Presidential Permit. TransCanada would not be likely to succeed on appeal under
this argument.

6

TransCanada next alleges that NEPA and APA limit the Court’s authority to
the border-crossing area, rather than the length of the entire project. The Court
rejected this argument in its Order on Partial Summary Judgment. (Doc. 202.) The
Permit states that Keystone “must be constructed and operated as described in the
2012 and 2017 permit applications.” Notice of Issuance of a Presidential Permit,
82 Fed. Reg. 16467-02 (Apr. 4, 2017). The Department was required to “analyze
all of the environmental consequences of [the] project.” Save Our Sonoran, Inc.,
408 F.3d at 1118. The Court possessed authority to enjoin the entire project.
B. Agency Discretion
A strong presumption exists that Congress intends judicial review of
administrative action. ASSE Int’l v. Kerry, 803 F.3d 1059, 1068 (9th Cir. 2015).
Two narrow exceptions apply: (1) when Congress expressly bars review by statute,
or (2) where an agency action is “committed to agency discretion by law.” Id.
TransCanada argues that the APA does not apply because a national interest
determination remains committed to agency discretion and stands exempt from
judicial review. (Doc. 235 at 17.)
Congress commits agency action to agency discretion in those rare instances
where Congress draws statutes in such broad terms that no law exists to apply in a
given case. 5 U.S.C. § 701(a)(2). Congress’s decision to draft a statute in such
broad terms leaves the court “with no meaningful standard against which to judge
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the agency's exercise of discretion.” Id. Courts must consider “the language of the
statute” and whether judicial review would endanger “the general purposes of the
statute.” Cnty. Of Esmeralda v. Dep’t of Energy, 925 F.2d 1216, 1218 (9th Cir.
1991).
Congress has provided a meaningful standard in the form of NEPA against
which to judge the Department’s conduct. Congress enacted NEPA to “protect the
environment by requiring that federal agencies carefully weigh environmental
considerations and consider potential alternatives to the proposed action before the
government launches any major federal action.” Barnes v. U.S. Dep’t of Transp.,
655 F.3d 1124, 1131 (9th Cir. 2011). NEPA, as enacted by Congress, its
regulations, and any judicial opinions that address similar NEPA claims, have
developed these standards more fully. 42 U.S.C.A. § 4332(2)(C); Citizens to
Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971).
C. NEPA Supplementation
TransCanada next asserts that no circumstances presented in the
administrative record warranted NEPA supplementation. TransCanada argues that
nothing in the administrative record required the Department to supplement its
NEPA analysis with regard to the following areas: the Mainline Alternative Route
(“MAR”); oil markets; greenhouse gas emissions; cultural resources; and oil spills.

8

1. The MAR
TransCanada argues that no circumstances regarding the change in the route
through Nebraska required the Department to provide a supplement to the SEIS
with regard to the MAR. TransCanada contends that the Department had
completed its decision-making process before the State of Nebraska had approved
the MAR rather than TransCanada’s preferred route. (Doc. 235 at 20.)
The Court determined in its Order on Partial Summary Judgment (Doc. 202)
that the Department wrongly had suggested that information about the MAR
postdated the Department’s issuance of the Presidential Permit. TransCanada,
instead, included the MAR as one of two alternatives in its February 16, 2017,
application to the Nebraska PSC. The Department knew before it had issued the
permit on March 23, 2017, that the Nebraska PSC could approve the MAR. This
contingency obligated the Department to supplement the SEIS to reflect the MAR.
Changed circumstances obligate an agency to prepare a post-decision
supplemental EIS when a project has not been fully constructed or completed.
Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 367-72. The Supreme Court
determined that “NEPA does require that agencies take a ‘hard look’ at the
environmental effects of their planned action, even after a proposal has received
initial approval.” Id. at 374.

9

The Department retained a meaningful opportunity to evaluate the MAR.
The MAR differs from the route analyzed in the 2014 SEIS. The MAR crosses five
different counties. The MAR crosses different water bodies. The MAR would be
longer. Finally, the MAR would require an additional pump station and
accompanying power line infrastructure. TransCanada appears unlikely to succeed
on the merits of its appeal under this argument.
2. Oil Markets
TransCanada next alleges that ongoing changes in oil markets did not
necessitate an updated NEPA analysis. (Doc. 235 at 21.) TransCanada argues that
low oil prices not contemplated in the 2014 SEIS do not correlate to significantly
different environmental impacts.
The 2014 SEIS analyzed the possibility of moderate fluctuations in oil prices
and the possibility of a low oil price scenario. Significant changes in oil prices
occurred, however, after the release of the 2014 SEIS. The Department
acknowledged in its 2014 SEIS that a significant drop in oil prices materially could
change its analysis. The 2014 SEIS conditioned much of its analysis on the price of
oil remaining high.
The 2014 SEIS stated that the price of oil needed to fall within the range of
$65-$75 per barrel in order for Keystone to break even on the project. The record
demonstrates that the price of oil dropped to nearly $38 per barrel shortly after the
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release of the 2014 SEIS. Oil prices have remined below the “break-even” numbers
established in the 2014 SEIS. This new and relevant information that surfaced
between the release of the 2014 SEIS and the 2017 ROD bears upon the
Department’s analysis. The information has the potential to constitute a material
change to the Department’s consideration of Keystone’s impact on tar sands
production.
3. Greenhouse Gas Emissions
TransCanada next argues that it had analyzed sufficiently the cumulative
impacts of the project in conjunction with the Alberta Clipper pipeline to excuse
the preparation of any updated analysis of cumulative impacts. TransCanada also
argues that NEPA’s best available science mandate did not require it to use the
updated Greenhouse Gas, Regulated Emissions, and Energy Use in Transportation
(“GREET”) model to analyze greenhouse gas emissions. (Doc. 235 at 25.)
The Department announced in 2013 that it would prepare an EIS for the
Alberta Clipper pipeline expansion. The Department issued a permit for the
Alberta Clipper expansion in 2017. The Department acknowledged the proposed
expansion of the Alberta Clipper in the Keystone 2014 SEIS. The Department
failed to analyze, however, the cumulative greenhouse gas emissions impacts of
both pipelines. The Department instead viewed Keystone in isolation.

11

The Department analyzed the cumulative emissions of Keystone and the
Alberta Clipper in the Alberta Clipper EIS. DOSKXLDMT0002501. The Alberta
Clipper EIS also used the updated GREET model to analyze greenhouse gas
emissions. Id. The GREET model estimates that greenhouse gas emissions are up
to 20% higher than the model used in the 2014 SEIS. Id.
NEPA requires that an EIS consider the cumulative impacts of the proposed
action. 40 C.F.R. § 1508.7. “Cumulative impact is the impact on the environment
which results from the incremental impact of the action when added to other past,
present, and reasonably foreseeable future actions regardless of what agency
(federal or non-Federal) or person undertakes such other actions.” Id. The
cumulative impacts analysis must do more than merely catalogue relevant projects
in the area, but rather must give sufficiently detailed analysis about these projects
and the differences between them. Great Basin Mine Watch v. Hankins, 456 F.3d
955, 971 (9th Cir. 2006).
This mandate requires an agency to discuss and analyze in sufficient detail
to assist “the decisionmaker in deciding whether, or how, to alter the program to
lessen cumulative impacts.” Churchill Cnty v. Norton, 276 F.3d 1060, 1080 (2001)
(quoting City of Carmel-by-the-Sea v. United States Dep’t of Transp., 123 F.3d
1142, 1160 (9th Cir. 1997)). Moreover, when several projects that may have
cumulative environmental impacts are pending concurrently, NEPA requires that
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the environmental consequences should be considered together. Kleppe v. Sierra
Club, 427 U.S. 390, 410 (1976).
TransCanada argues that the Court’s reasoning in its Summary Judgment
Order was that “[the Department] was unaware of the cumulative impacts of both
projects notwithstanding the fact that it disclosed in the 2017 EIS for the Alberta
Clipper the potential cumulative GHG emissions of both pipelines.” (Doc. 235 at
25.) TransCanada’s argument does not reach the purpose of the required
supplement. The Department failed to paint a full picture when it ignored the
cumulative impacts of the two pipelines in the 2014 SEIS for Keystone. See
Churchill Cnty, 276 F.3d at 1072.
The Department’s analysis of the greenhouse gas emissions of both pipelines
in the later Alberta Clipper EIS does not alleviate the error resulting from its
omission in the earlier 2014 SEIS. The error caused the Department to lack full
awareness of the environmental consequences of both actions. This error precluded
informed decision-making and public participation based on complete information
about potential greenhouse gas emissions. See Ground Zero Ctr. For Non-Violent
Action v. United States Dep’t of Navy, 860 F.3d 1244, 1252 (9th Cir. 2017). The
updated GREET model used by the Department in the Alberta Clipper SEIS also
constituted new and relevant information that required a supplement.

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4. Cultural Resources
TransCanada argues that no provision of NEPA required the Department to
supplement information regarding over 1,000 acres of unsurveyed land along the
pipeline’s route. (Doc. 235 at 26.) TransCanada argues that the Department’s
agreement with other federal agencies and state historic preservation officers
satisfied its NEPA obligations.
The record reflects that the Department entered into an agreement with other
federal agencies and state historic preservation officers to govern identification of
historic properties and consultation regarding potential adverse impacts.
DOSKXLDMT0006553-54. The Department also consulted with Indian tribes,
federal agencies, and local governments regarding cultural resources. Id. The SEIS
identified 397 cultural resources that may be affected by the project. Id. at 6521.
The SEIS states, however, that “[a]s of December 2013, approximately 1,038 acres
remained unsurveyed and are the subject of ongoing field studies.”
DOSKXLDMT0006522.
Consequently, the 2014 SEIS failed to provide a “full and fair discussion of
the potential effects of the project to cultural resources.” See, Native Ecosystems
Council v. U.S. Forest Service, an agency of U.S. Dept. of Agriculture, 418 F.3d
953, 965 (9th Cir. 2005). “NEPA ensures that [agencies] will not act on incomplete
information, only to regret its decision after it is too late to correct” Marsh, 490
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U.S. at 371. The agreement with the state, local, and tribal agencies entered by the
Department regarding the additional studies does not relieve the Department of its
NEPA obligations. The Department must supplement this information. This
supplementation further will allow the public to review and comment on the newly
surveyed areas as part of the NEPA process.
5. Oil Spills
Major oil pipeline spills have occurred since the publication of the 2014
SEIS and the issuance of the ROD in 2017. TransCanada argues that new oil spill
data would not alter the Department’s analysis to the point of requiring a
supplement. (Doc. 235 at 22.) TransCanada incorrectly argues that the Court
needed to find that new spill data indicates that Keystone would impact the
environment in a manner not analyzed by the Department.
The Court possesses no duty to analyze the impacts of updated oil spill data
on the environment. The Department possessed the duty to analyze the updated oil
spill data between 2014 and 2017 that constituted new and relevant information.
Without this information, the Department acted upon incomplete data in its
analysis of the likelihood of spills. See Marsh, 490 U.S. at 371. The Department
also acted upon incomplete information when it failed to address the National
Academy of Sciences (“NAS”) study. The absence of this information from the
2014 SEIS’s mitigation measures demonstrates that the Department acted upon
15

incomplete information in setting forth its mitigation measures. See Marsh, 490
U.S. at 371.
D. The Department’s Policy Shift
TransCanada next alleges that the Department adequately explained its
policy change. TransCanada again asserts that the APA does not authorize review
of the ROD because it remains committed to agency discretion. (Doc. 235 at 28.)
The Court already has determined that the ROD should be subject to judicial
review under the APA. (Doc. 93.) NEPA provides the appropriate standard of
review for the Court to follow. Further, TransCanada argues that the Department
adequately explained its change in policy. (Doc. 235 at 28.)
An agency possesses authority to give more weight to certain policy
considerations than it had in the past. Org. Vill. of Kake v. U.S. Dept. of
Agriculture, 795 F.3d 956, 968 (9th Cir. 2015). An agency must provide a detailed
justification, however, for reversing course and adopting a policy that “rests upon
factual findings that contradict those which underlay its prior policy” Kake, 795
F.3d at 966 (quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515
(2009)). “Even when reversing a policy after an election, an agency may not
simply discard prior factual findings without a reasoned explanation.” Kake, 795
F.3d at 968.

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The Department’s 2015 ROD provided a section titled “Climate ChangeRelated Foreign Policy Considerations.” The 2015 ROD determined that the
United States’s climate change leadership provided a significant basis for denying
the permit. In reaching its decision, the Department recognized science supporting
a need to keep global temperature below two degrees Celsius above pre-industrial
levels, and scientific evidence that human activity represents a dominant cause of
climate change.
After tracking the 2015 ROD nearly word-for-word, the 2017 ROD omitted
entirely a parallel “Climate Changed-Related Foreign Policy Considerations”
section. The Department’s discretion to give more weight to energy security does
not excuse it from ignoring the 2015 ROD’s factually-based determinations. The
Department instead avoided the 2015 ROD’s conclusion that 2015 represented a
critical time for action on climate change with a single paragraph that simply stated
that since 2015, there have been “numerous developments related to global action
to address climate change, including announcements of many countries of their
plans to do so.” DOSKXLDMT0002518. This explanation falls short of a factually
based determination, or reasoned explanation, and TransCanada appears unlikely
to prevail on appeal. Kake, 795 F.3d at 968.

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E. FWS’s review under the ESA
TransCanada next argues that the Department’s 2012 Biological Assessment
(“BA”) and FWS’s 2013 Biological Opinion (“BiOp”) and concurrence should not
have been set aside for the purpose of considering updated data on oil spills. The
Court has determined that TransCanada is not likely to succeed on the merits of its
appeal of the Court’s requirement that the Department supplement the 2014 SEIS.
The Department must supplement information regarding oil spills. This
information affects the Department’s analysis of potential impacts to listed species.
The Department and FWS must use the “best scientific and commercial data
available” in all respects, including the effects of potential oil spills on endangered
species. 16 U.S.C. § 1536(a)(2). An agency must reinitiate consultation when “new
information” suggests the action may impact listed species “in a manner or to an
extent not previously considered.” 50 C.F.R. § 402.16(b). The Department’s and
FWS’s prior conclusions regarding the effects of oil spills on listed species proves
outdated due to the requirement that the Department supplement the 2014 SEIS.
The agencies must account for the supplemental information. The Department
must consider the new information regarding oil spills in its supplement to the
2014 SEIS. The Department also must coordinate with FWS in making its
determination.

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II.

Irreparable Injury
TransCanada asserts that it will suffer irreparable injury in the absence of a

stay pending its appeal. (Doc. 235 at 31.) TransCanada argues that if the Court’s
injunction halts its off-right-of-way activities, TransCanada would be forced to lay
off a significant portion of its workforce, face tremendous delay costs, miss the
2019 construction season, and lose substantial revenues. (Doc. 248 at 14.)
Plaintiffs argue that the financial harms that TransCanada alleges are temporary
and self-inflicted. Plaintiffs also contend that TransCanada exaggerates its alleged
harms related to the difficulty of retaining skilled workers. (Doc. 247 at 14.)
The Court determined in its Order on TransCanada’s Motion to Amend that
a limited modification of the scope of the injunction proved necessary. (Doc. 232
at 13.) The Court reasoned that activities related to the NEPA process required an
injunction pending the Department’s review. Id. at 15. The Court further
determined that those activities unrelated to NEPA review could continue. Id.
Finally, the Court determined that the hardship to TransCanada from enjoining
activities unrelated to the Department’s NEPA review required a limited
modification of the injunction. Id. at 13.
TransCanada argues that irreparable injury will occur if it is not allowed to
proceed with the three proposed off-right-of-way activities. TransCanada alleges
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that an injunction of the off-right-of-way activities threatens 700 jobs, the loss of
skilled workers, the potential of missing the 2019 construction season, and lost
earnings of approximately $949 million. TransCanada asserts that each of these
alleged injuries will occur if it remains unable to continue with the off-right-ofway activities during the pendency of its appeal.
TransCanada also has demonstrated that engaging in the off-right-of-way
activities unrelated to the NEPA process would not result in the construction of any
portion of the pipeline. The transportation of pipe, preparation of pipe storage
yards, and preparation of construction camps, all represent activities to be
performed at TransCanada’s peril during the pendency of its appeal. TransCanada
will suffer irreparable injury, however, if its planned construction schedule
otherwise proves accurate, but it is further delayed because the off-right-of-way
activities could not be completed on time. This factor weighs in favor of
TransCanada.
III.

Substantial Injury to Other Parties Interested in the Proceeding
The Court also determined in its Order on TransCanada’s Motion to Amend,

that potential injuries to the Plaintiffs warranted an injunction of certain
preconstruction activities. The Court determined that Plaintiffs demonstrated
irreparable injury with respect to the actual construction and operation of Keystone
in the absence of complete environmental review. (Doc. 232 at 11.) Plaintiffs also
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have demonstrated substantial injury in the form of environmental harm and a
“biased NEPA process.” Id. The Court concluded that an injunction of certain
preconstruction activities could skew the Department’s future analysis and
decision-making with regard to Keystone. See Colorado Wild Inc. v. U.S. Forest
Serv., 523 F.Supp.2d 1213, 1221 (D. Colo. 2007).
The Ninth Circuit determined in Save Our Sonaran, Inc. v. Flowers, 408
F.3d 1113 (9th Cir. 2005), that “when environmental injury is sufficiently likely,
the balance of harms will usually favor the issuance of an injunction to protect the
environment.” Id. at 1125. The Ninth Circuit examined a district court’s injunction
of a United States Army Corps of Engineers (“Corps”) Section 404 dredge and fill
permit for the construction of a gated community. Id. at 1118. The plaintiffs sought
an injunction based on alleged NEPA and Clean Water Act (“CWA”) violations.
Id.
The controversy involved 31.3-acres of washes that constituted
approximately 5 percent of the property. Id. The district court determined that the
washes on the property presented potential geological impacts to the entire
property. Id. The Corps evaluated the Section 404 permit application and issued an
environmental assessment and finding of no significant impact. Id. In its analysis,
the Corps examined only the washes, rather than the entire project. Id. The district
court reasoned that, even though the washes cover only 5 percent of acreage, they
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critically impacted the entire parcel. Id. The district court enjoined the project
pending a hearing on the merits. Id.
The Ninth Circuit upheld the district court's injunction on appeal. Id. at
1121. The Ninth Circuit reasoned that “the impact of the permit on the
environment at large determines the [agency’s] NEPA responsibility.” Id. at 1122.
The Ninth Circuit further concluded that “[t]he authority to enjoin development
extends only so far as the [agency’s] permitting authority.” Id. at 1123. The district
court limited the scope of the injunction, therefore, to stopping the developer from
acts that required a Corps permit. Id. Further, the district court’s determination that
the washes remained subject to federal jurisdiction under the CWA and could not
be separated from the private lands, authorized the district court to enjoin the entire
project. Id.
Both parties rely on Save Our Sonoran to argue that the third factor weighs
in their respective favor. Plaintiffs argue that the Ninth Circuit’s affirmation of the
injunction of the entire project site requires a similar blanket-injunction of
Keystone and all related activities. (Doc. 247 at 26.) TransCanada argues, on the
other hand, that the Court’s authority extends only to the Department’s permitting
authority and accompanying NEPA analysis. (Doc. 235 at 30.) TransCanada
contends, therefore, that the three proposed off-right-of-way activities fall beyond

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the scope of the Department’s permitting authority and NEPA review and cannot
be enjoined. Id.
TransCanada incorrectly argues that the three off-right-of-way activities
were beyond the scope of the Department’s NEPA review. The 2014 SEIS
frequently discussed the impacts of the off-right-of-way activities to the following
issues: the potential impacts to natural resources, cultural resources, and
greenhouse gas emissions. See DOSKXLDMT0007000, 7107, 7340. TransCanada
asserts that the off-right-of-way activities would occur on land that TransCanada
either owns or leases. TransCanada must obtain all state and local permits to
transport pipe, refurbish pipe, construct storage yards, or construct labor camps.
TransCanada asserts that it has obtained these necessary permits.
The 2014 SEIS defines Keystone’s “action area” as “construction of the
pipeline [right-of-way] and land affected by the above ground ancillary facilities
(i.e., additional temporary work space areas, pipe stockpile sites, rail sidings,
contractor yards, construction camps, pump stations, delivery facilities, and access
roads).” DOSKXLDMT0010626. The 2014 SEIS also defines the “Project Area”
as “the area of physical disturbance associated with the proposed Project limits;
that is, in and along the pipeline right-of-way construction corridor and its ancillary
facilities (e.g. access roads, pump stations, and construction camps).”
DOSKXLDMT0007268.
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TransCanada asserted at the hearing on its motion to stay that all areas where
work camps and pipe yards will be constructed have been surveyed. (Doc. 249.)
TransCanada’s January 7, 2019, status report states that preconstruction activities
will not require construction of new private roads. (Doc. 254-1 at 9.) The status
report also states that all off-right-of-way areas have been surveyed for protected
species and cultural resources. Id. at 9-10. The 2014 SEIS explains, however, that
additional cultural resource surveys within the Keystone corridor, including
“ancillary facilities,” remain “ongoing.” DOSKXLDMT0007340 (n. 7.) The SEIS
defines ancillary facilities to encompass pipe yards and construction camps. Id. at
10626. The 2014 SEIS also states that Keystone may affect cultural resources on or
near the right-of-way and in the locations of ancillary facilities including access
roads and construction camps. DOSKXLDMT0007000.
The 2014 SEIS makes clear that at least a portion of the off-right-of-way
activities that TransCanada seeks to perform were to occur on land not yet
surveyed for cultural resources. DOSKXLDMT0007340. The contradiction
between the information provided in the 2014 SEIS and TransCanada’s current
assertions demonstrates the reason that the Department must supplement the SEIS
with updated information regarding cultural surveys. Neither the 2014 SEIS, nor
the administrative record, provide information to the Court or the public that
TransCanada has completed cultural resource surveys at all the proposed “ancillary
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facilities” that encompass the off-right-of-way areas. TransCanada’s bare
assertions that these areas have been surveyed for cultural resources since the
publication of the 2014 SEIS proves insufficient to allow the off-right-of-way
activities to continue in these areas not yet surveyed for cultural resources when
the 2014 SEIS was issued in the absence of complete environmental review.
TransCanada attempts to distinguish the Department’s permitting authority
in this case from the Corps’s authority in Save Our Sonoran. The washes at issue
in Save Our Sonoran ran through the entire parcel “the way capillaries run through
tissue.” Save Our Sonoran, 408 F.3d at 1119 (quoting Save Our Sonoran, Inc. v.
Flowers, 227 F.Supp.2d 1111, 1114 (D. Ariz. 2002)). The geological impact of the
washes’ connection to the entire project site provided the reason that the district
court could completely enjoin the project including private land.
The 2014 SEIS included “ancillary facilities” as part of its “action area” and
“project area,” and within its scope and review. The required supplemental review,
along with the 2014 SEIS’s conclusions with regard to impacts at proposed
construction camps and storage yards, demonstrates the difficulty in attempting to
“segregate[]” the three proposed off-right-of-way activities from Keystone itself.
See Save Our Sonoran, 408 F.3d at 1123. Allowing TransCanada to begin
construction in areas that the Court has ordered the Department to supplement its
review would run counter to the need for a such a supplement and undermine the
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purpose of NEPA. These areas subject to the supplement include the MAR in
Nebraska and those approximately 1,000 acres not yet surveyed for cultural
resources along the pipeline route. (Doc. 235 at 26.)
TransCanada further argues that the three proposed off-right-of-way
activities do not affect the potential for “bureaucratic momentum” or risk a biased
NEPA process. (Doc. 235 at 32.) The Court determined in its Order on
TransCanada’s Motion to Amend that the risk of “bureaucratic momentum”
created by certain preconstruction activities could bias the Department’s NEPA
analysis. (Doc. 232 at 10.) The concern regarding “bureaucratic momentum”
involves the potential of a skewed NEPA analysis if certain preconstruction
activities were allowed to proceed during the NEPA review. See Colorado Wild,
523 F.Supp.2d at 1221. TransCanada asserts that the three proposed off-right-ofway activities would not impact the Department’s supplemental review.
The 2014 SEIS consistently discussed the three proposed off-right-of-way
activities. TransCanada would perform these off-right-of-way activities entirely on
private land owned or leased by TransCanada. The 2014 SEIS determines,
however, that potential impacts that appear to be material to the supplemental
review, may occur at the off-right-of-way sites. See, e.g., DOSKXLDMT0010626,
7268.

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The private nature of the three proposed off-right-of-way activities lessens
the risk of “bureaucratic momentum” as raised by the court in Colorado Wild, 523
F.Supp.2d at 1221. The connection between the private activities and the impacts
on the Department’s required supplement, however, could skew the Department’s
analysis. The construction camps present a significant activity that could impact
the Department’s analysis. The 2014 SEIS focuses frequently on the potential
impacts posed by the preparation of the construction camps. The 2014 SEIS
describes the construction camps as containing at least 80-acres of contractor
yards, housing, and administration facilities. DOSKXLDMT0005983. The camps
would be constructed using modular units and include infrastructure necessary for
complete food service, housing, and personal needs. Id. The construction camps
would be fully fenced and include guard stations. Id. at 7840. The construction
camps would also include stores, recreation and fitness facilities, entertainment
facilities, dining and laundry facilities, and security units. Id. The 2014 SEIS
“conservative[ly]” estimates that each camp would house approximately 1,000
residents. Id. The pipe yards, on the other hand, involve minimal ground
disturbance and are designed for the mere purpose of off-loading pipe. The
construction camps’ similarities to small towns prove distinguishable from the
relatively minor impacts of the pipe storage yards. The significant impacts from the

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construction camps risks the potential for a “bureaucratic steamroller” that the
Court determined to be present in its Injunction Order. (Doc. 232.)
This factor weighs in favor of Plaintiffs for those areas that had not been
surveyed and subject to public review and comment by the time of the 2014 SEIS.
These areas include the proposed construction camps, the MAR in Nebraska, and
the 1,000 acres of not yet surveyed for cultural resources. (Doc. 235 at 26.) This
factor weighs in favor of TransCanada, however, only for those off-right-of-way
activities that would take place entirely within areas that had been the subject of
completed cultural surveys and public review and comment by the time of the 2014
SEIS.
IV.

Public Interest
Finally, TransCanada argues that the public interest warrants a stay of the

injunction. (Doc. 235 at 34.) The Court addressed these same concerns in its Order
on TransCanada’s motion to Amend. The Court determined that Plaintiffs had met
their burden regarding the public’s interest in ensuring that the Department conduct
a complete environmental review before construction and operation of Keystone.
(Doc. 232 at 14.) The public possesses an interest in the Department’s compliance
with NEPA’s environmental review requirements and informed decision-making.
See Colorado Wild, 523 F.Supp.2d at 1222.

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The Court permanently has enjoined the actual construction and operation of
Keystone. TransCanada has not sought to engage in actual construction or
operation pending its appeal. The Court has determined that the off-right-of-way
activities that would impact areas not yet surveyed for cultural resources cannot be
segregated from the Department’s supplemental review obligation. The 2014 SEIS
demonstrates that the off-right-of-way activities potentially could impact adversely
areas not yet surveyed for cultural resources. DOSKXLDMT0010626, 7268.
TransCanada’s assertion that all off-right-of-way areas have since been
surveyed has no bearing upon the Department’s supplemental NEPA review. At
least some of those areas, especially along the MAR in Nebraska, have not been
surveyed for cultural resources and made subject to public review and comment by
the time of the 2014 SEIS. The public’s interest in ensuring compliance with
NEPA’s requirements and informed decision-making would be threatened by the
three proposed off-right-of-way activities in those areas that were not the subject of
cultural resource surveys and public review and comment by the time of the 2014
SEIS. This factor weighs in favor of Plaintiffs for those areas not yet surveyed for
cultural resources.
CONCLUSION AND ORDER
The Court continues to believe that TransCanada remains unlikely to
succeed on the merits of its appeal. TransCanada has shown that it will suffer
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potential irreparable injury if it is unable to perform the three proposed off-rightof-way activities. Plaintiffs have shown irreparable injury in the form of the actual
construction and operation of Keystone and potential “bureaucratic momentum.”
The potential injuries to Plaintiffs would be further threatened by the off-right-ofway activities that would occur in areas that had not been surveyed for cultural
resources, or were not a part of the 2014 SEIS, including the public review and
comment process. The public interest rightfully weighs in favor of a complete
NEPA review. The preparation of storage yards and construction camps in areas
not yet surveyed for cultural resources when the Department issued the 2014 SEIS
have the potential to impact adversely the public’s interest in an informed NEPA
process.
Accordingly, TransCanada’s Motion to Stay the application of the
permanent injunction with respect to its right to engage in the three proposed offright-of-way activities (Doc. 234) is GRANTED, IN PART, AND DENIED, IN
PART.
The Court emphasizes that the partial stay of its injunction contemplated by
this Order applies only to those off-right-of-way activities, limited to transportation
of pipe and preparation of pipe storage and container yards, that would occur only
on those areas that had been surveyed for cultural resources and had been subjected
to the public review and comment process when the Department issued the 2014
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SEIS. TransCanada may continue to perform these limited off-right-of-way
activities that will be conducted by private parties, take place on private land, and
only on those lands for which TransCanada has obtained permits from state and
local governments, if necessary, to engage in these activities:
1) Preparation of off-right-of-way pipe storage and container yards; and
2) Transportation, receipt, and off-loading of pipe at these off-right-of-way
storage and container yards.
The following activity shall remain enjoined:
1) Preparation of sites for off-right-of-way construction camps.
The remainder of the Court’s Summary Judgment Order (Doc. 211), Final
Judgment (Doc. 212), and Supplemental Order Regarding Permanent Injunction
(Doc. 232), shall remain in full force and effect.

DATED this 15th day of February, 2019

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