Rosebud Sioux Tribe et al v. United States Department of State et al
ORDER: IT IS ORDERED that Plaintiffs' 119 Motion for Preliminary Injunction is DENIED; Plaintiffs' 130 Motion for Temporary Restraining Order is DENIED; TC Energy's and Federal Defendants' 96 , 108 Motions for Summary Judgm ent are GRANTED IN PART on Plaintiffs' Claims Five and Six; Plaintiffs' 113 Motion for Summary Judgment is DENIED IN PART on Claims Five and Six. The Parties shall file simultaneous briefing, not to exceed 10,000 words, on the issues listed in Part III.b of this Order within 30 days of the issuance of this Order. SEE ORDER FOR FULL DETAILS. Signed by Judge Brian Morris on 10/16/2020. (SLR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
ROSEBUD SIOUX TRIBE, et al.,
PRESIDENT DONALD J. TRUMP, et al.,
PIPELINE, LP, a Delaware limited
partnership, and TC ENERGY
CORPORATION, a Canadian Public
Rosebud Sioux Tribe (“Rosebud”) and Fort Belknap Indian Community
(“Fort Belknap”) (collectively “Plaintiffs”) brought this action against President
Donald J. Trump and various government agencies and agents in their official
capacities (“Federal Defendants”). Plaintiffs challenge President Trump’s decision
to issue a Presidential Permit in 2019 (“2019 Permit”) to Defendant-Intervenors
TransCanada Keystone Pipeline, LP and TC Energy Corporation (collectively, “TC
Energy”) to construct a cross-border segment of the oil pipeline known as
Keystone XL (“Keystone”).
Plaintiffs filed this action on September 10, 2018. (Doc. 1). Plaintiffs allege
that Federal Defendants violated the 1851 Fort Laramie Treaty, the 1855 Lame
Bull Treaty, the 1868 Treaty of Fort Laramie, the Foreign Commerce Clause of the
United States Constitution, the Plaintiffs’ inherent tribal sovereign powers, and
various federal statutes and regulations when President Trump issued the 2019
Permit. (Docs. 1, 58).
The Court described the factual history that gave rise to this case in detail in
a December 2019 Order in a related case. See Indigenous Environmental Network
v. Trump, Doc. 73 at 2–14, No. CV-19-28-GF-BMM (D. Mont. Dec. 20, 2019). All
Parties have filed motions since December 2019. TC Energy filed a Motion for
Summary Judgment on January 24, 2020. (Doc. 96). Federal Defendants filed a
Motion for Summary Judgment on February 25, 2020. (Doc. 108). Plaintiffs filed a
Motion for Summary Judgment with respect to certain claims on February 25,
2020. (Doc. 113). Plaintiffs filed Motion for a Preliminary Injunction on March 2,
2020. (Doc. 119). And Plaintiffs filed a Motion for a Temporary Restraining Order
on March 17, 2020. (Doc. 130).
This case presents novel and complex questions of constitutional law and
statutory interpretation. The Court therefore sought supplemental briefing on
certain issues. (Doc. 93). The Court held a motion hearing on April 16, 2020, to
hear arguments on the supplemental briefing as well as motions pending at that
time. This Order will resolve many of the pending motions before the Court and
narrow the scope of the litigation. Certain issues will remain pending additional
Scope of the 2019 Presidential Permit
The 2019 Permit grants TC Energy permission “to construct, connect,
operate, and maintain pipeline facilities at the international border of the United
States and Canada . . . for the import of oil from Canada to the United States.”
Authorizing TransCanada Keystone Pipeline, L.P., To Construct, Connect,
Operate, and Maintain Pipeline Facilities at the International Boundary Between
the United States and Canada, 84 Fed. Reg. 13,101, 13,101 (March 29, 2019). The
Parties do not dispute that the 2019 Permit purportedly authorizes TC Energy to
construct, connect, and maintain a 1.2-mile segment of pipeline that extends from
the United States-Canada border up to and including the first mainline shut-off
valve. (Doc. 95 at 2–4; Doc. 99 at 1–9; Doc. 101 at 1–4).
Plaintiffs assert that the 2019 Permit further authorizes TC Energy to
construct and operate an additional 875 miles of pipeline in the United States.
(Doc. 99 at 1–9). The Court sought additional briefing on “whether the permit
authorizes only the 1.2-mile border facility” or “whether the permit authorizes the
entire Keystone XL Pipeline project.” (Doc. 93 at 1). Plaintiffs argued that the
2019 Permit purports to approve the “entire pipeline.” (Doc. 99 at 2). Plaintiffs
point to the plain text as well as the context of the pipeline permit application to
justify their argument. Id. at 1–9. Plaintiffs finally contend that the “entire pipeline
is one enterprise” and that “without the 2019 Permit” there would be no pipeline.
Id. The Court disagrees with Plaintiffs’ interpretation.
The 2019 Permit by its plain language applies only to the 1.2 miles from the
United States-Canada border, up to and including, the first mainline shut-off valve.
The first paragraph of the 2019 Permit grants permission to “construct, connect,
operate, and maintain pipeline facilities at the international border of the United
States and Canada at Phillips County, Montana.” 84 Fed. Reg. at 13,101 (emphasis
added). The text of this initial permission, as well as the remainder of the permit,
relates to authorization of pipeline facilities at the border. The 2019 Permit goes on
to define “Border facilities” to include “those parts of the Facilities consisting of a
36-inch diameter pipeline extending from the international border between the
United States and Canada . . . to and including the first mainline shut-off valve in
the United States located approximately 1.2 miles from the international border.”
Id. (emphasis added). Each permit condition explicitly limits the “Border facilities”
term only. See id. at 13,101–03.
The 2019 Permit defines a broader “Facilities” term as the “portion in the
United States of the international pipeline project associated with the permittee’s
application for a Presidential permit . . . and any land, structures, installations, or
equipment appurtenant thereto.” Id. at 13,101. This broader term certainly
encompasses the full Keystone project. The 2019 Permit uses the term “Facilities”
only once -- to direct that the construction “of the Facilities (not including the
route) shall be, in all material respects and as consistent with applicable law,” as
described in TC Energy’s 2012 Application and 2017 Application for a
Presidential Permit. Id. at 13,101–02 (emphasis added). This “Facilities” term
purports to require TC Energy to comply with applicable laws throughout the
Keystone project. It does not in itself authorize the full Keystone project.
The 2017 Application provides further evidence for this reading. TC Energy
wrote in that application that it “requests a Presidential Permit” for “the specific
border crossing facilities associated with the Proposed Keystone XL Project.” The
application describes “border crossing facilities” as the 1.2-mile segment that
“extend[s] downstream from the United States border, in Phillips County, Montana
up to and including the first pipeline isolation valve, located at Milepost 1.2.”
TransCanada Keystone Pipeline, L.P., Application for Presidential Permit for
Keystone XL Pipeline Project, at 6 (Jan. 26, 2017).
Recent history and practice further support the Court’s limited reading of the
2019 Permit. Past presidential permits for border-crossing pipelines applied to the
project from the border crossing, up to and including, the first shut-off valves.
Examples include the permits for the Cochin Pipeline (authorizing 14.5 miles) and
the Magellan Pipeline (authorizing 600 feet). See Presidential Permit for Kinder
Morgan Cochin Pipeline (Renville County, ND facilities), 78 Fed. Reg. 73,582
(Dec. 6, 2013); Presidential Permit for Magellan Pipeline Company, L.P., 80 Fed.
Reg. 45,697 (July 31, 2015).
Older examples prove less clear in their terms, but they similarly indicate a
focus on border facilities and do not exempt projects from applicable laws. See,
e.g., Authorizing the Murphy Oil Corp. to Connect, Operate and Maintain a
Pipeline at the International Boundary Line Between the United States and Canada,
31 Fed. Reg. 6,204 (Apr. 21, 1966) (conditioning the “effectiveness of this permit
to authorize connection of the U.S. facilities at the international boundary line with
the facilities located in Canada” to the company’s compliance with Canadian,
federal, state, and local law).
The 2019 Permit, though limited in its scope, places important conditions on
Keystone. It requires all Facilities to be built “consistent with applicable law,” and
that TC Energy acquire “any right-of-way grants or easements, permits, and other
authorizations” necessary to build the Border facilities. 84 Fed. Reg. at 13,101–02.
The 2019 Permit grants no exemptions to laws governing public land use or that
may require environmental analysis before authorizing a pipeline project. Those
public land use laws still apply to the Keystone XL project when it requires federal
actions—including over federal lands in that first 1.2-mile segment.
TC Energy sought and received a right-of-way from the U.S. Bureau of
Land Management (“BLM”) for the 1.2-mile segment. See BLM, Record of
Decision: Keystone XL Pipeline Project Decision to Grant Right-of-Way and
Temporary Use Permit on Federally Administered Land, DOI-BLM-MT-C0202020-0022-OTHER_NEPA (Jan. 22, 2020). BLM’s decision to grant the right-ofway remains subject to other litigation in this Court. See Bold All. v. U.S. Dep’t of
the Interior, 4:20-cv-00059-BMM-JTJ (D. Mont.); Assiniboine & Sioux Tribes of
the Ford Peck Indian Rsrv. v. U.S. Dep’t of the Interior, 4:20-cv-00044-BMM-JTJ
Resolution of Select Pending Motions
The Court’s analysis regarding the scope and content of the 2019 Permit
resolves, in turn, several pending motions before the Court.
Motions for Temporary Restraining Order and Preliminary
Plaintiffs filed a Motion for a Preliminary Injunction as well as a Motion for
a Temporary Restraining Order. (Docs. 119, 130). A court may grant a preliminary
injunction or temporary restraining order to preserve the status quo pending final
determination of an action. See Textile Unlimited, Inc. v. A..BMH & Co., 240 F.3d
781, 786 (9th Cir. 2001). The issuance of a preliminary injunction or temporary
restraining order represent extraordinary remedies, that should not be awarded as a
matter of right, but only “upon a clear showing that the plaintiff is entitled to such
relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008).
A plaintiff who seeks a preliminary injunction or temporary restraining order
must establish four elements: 1) that it likely will succeed on the merits; 2) that it
likely will to suffer irreparable harm in the absence of preliminary relief; 3) that
the balance of equities tips in its favor; and 4) that an injunction will serve the
public interest. See id. at 20.
Courts in the Ninth Circuit apply a sliding scale approach to preliminary
relief. See All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.
2011). The reviewing court must balance the elements “so that a stronger showing
of one element may offset a weaker showing of another.” Id. Even “serious
questions going to the merits and a balance of hardships that tips sharply towards
the plaintiff can support issuance of a preliminary injunction, so long as the
plaintiff also shows that there is a likelihood of irreparable injury and that the
injunction is in the public interest.” Id. at 1135. The public interest and the balance
of the equities factors merge when the government stands as a party. See Drakes
Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014) (citing Nken v.
Holder, 556 U.S. 418, 435 (2009)).
Success on the merits
Plaintiffs fail at this juncture to show that they likely will succeed on the
merits. The Court retains serious questions regarding Plaintiffs’ legal claims.
Although the Court previously has ruled that Plaintiffs provide plausible claims
that survive a Motion to Dismiss, (Doc. 92), the complex and novel legal issues
raised in this dispute require further briefing for elucidation. The Court will seek
further briefing on the constitutional issues involved in this case. This kind of legal
uncertainty weighs heavily against granting preliminary injunctive relief. All. for
the Wild Rockies, 632 F.3d at 1135 (clarifying that “serious questions” regarding
legal merits can only be overcome when the balance of hardship “tips sharply” in
plaintiffs’ favor). Plaintiffs’ treaty, mineral, and tribal jurisdiction claims are
similarly suspect, particularly in light of the Court’s above analysis that the 2019
Permit is limited to the 1.2-mile border crossing segment.
Plaintiffs fail to show that they are likely to suffer irreparable injury in the
absence of preliminary relief. Plaintiffs’ filings blurred the lines between the
impact of the 1.2-mile border-crossing segment of the pipeline and the impact of
the full pipeline. For example, Plaintiffs allege that Keystone construction will
injure cultural resources, mineral estates, water resources, and tribal sovereign and
treaty interests. (Doc. 120 at 17–25). These alleged injuries appear to occur almost
entirely outside the 1.2-mile border-crossing segment and would not arise from
construction activities within the 1.2-mile border-crossing segment. Any alleged
irreparable injuries caused by construction outside the 1.2-mile border-crossing
segment go beyond the scope of the relief available because the permit only covers
the border segment. The proper “scope of injunctive relief is dictated by the extent
of the violation established.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979). The
Court must set aside those injuries for purposes of injunctive relief analysis at this
Plaintiffs claim two irreparable injuries within the 1.2-mile border-crossing
segment: four identified cultural historical sites, other unidentified cultural
historical sites, and “public health and safety threats” related to worker camps.
(Doc. 131 at 11–18). Each of these claimed injuries can result directly from the
construction and eventual operation of the border crossing. Plaintiffs have not
demonstrated, however, the likelihood, rather than mere possibility, of injury.
Winter, 555 U.S. at 21 (directing that a plaintiff “must demonstrate a likelihood of
irreparable injury—not just a possibility—in order to obtain preliminary relief.”). It
appears from the record that there are no cultural resources within the 1.2-mile
border crossing segment. The 2008 literature study of cultural resources cited by
Plaintiffs that identified four potential sites has since been contradicted by two inperson search studies. (Doc. 141 at 20–21; Doc. 143 at 6–7). Those studies found
no such sites. The alleged harms from worker camps remain speculative. The 2019
Permit does not authorize worker camp planning, placement, and operation.
Plaintiffs cannot enjoin activities based on irreparable injuries that occur outside
the scope of the 2019 Permit. Cf. Save Our Sanoran, Inc. v. Flowers, 408 F.3d
1113, 1123 (9th Cir. 2005) (“The authority to enjoin development extends only so
far as the Corps’ permitting authority.”).
Balance of equities and public interest
Both sides in this dispute can and do make valid arguments for their side in
the balance of equities and public interest. Plaintiffs point to the cultural, historical,
and environmental harms relating to construction and eventual operation of
Keystone. (Doc. 120 at 25–30; Doc. 131 at 18–21). TC Energy points to significant
investment made in the project over the last decade, potential economic and tax
revenue impacts, as well as current construction activities at the border. (Doc. 126
at 26–27). Federal Defendants point to national interests in supporting “energy
security and maintaining strong bilateral relations with Canada.” (Doc. 127 at 27).
The weight of these factors remains unclear and fails to compel the granting of
TC Energy filed several status reports that detail its plans and
implementation of construction activities. (Docs. 87, 90, 94, 158). TC Energy
represented to the Court that it began construction of the border-crossing segment
of the pipeline on April 4, 2020. (Doc. 158-1 at 3). TC Energy further represented
that it anticipated completing the construction of that segment in May 2020. (Doc.
158-1 at 4). Construction will slow or stop with the winter months. The facts on the
ground suggest further ambiguity, and even potential mootness, when weighing the
equities involved in preliminary relief.
Preliminary injunctive relief represents an extraordinary remedy. Winter,
555 U.S. at 22. Plaintiffs carry the burden to provide a “clear showing” that they
are “entitled to such relief.” Id. Plaintiffs have failed to meet their burden because
serious merit questions remain, Plaintiffs have not shown irreparable harm, and the
balance of equities and public interest provide ambiguous guidance. The Court will
deny Plaintiffs’ Renewed Motions for Preliminary Injunction and Temporary
Restraining Orders (Docs. 119, 130) for the above reasons.
Summary Judgment Motions
A court should grant summary judgment where the movant demonstrates
that no genuine dispute exists “as to any material fact” and the movant is “entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment remains
appropriate for resolving a challenge to a federal agency’s actions when review
will be based primarily on the administrative record. Pit River Tribe v. U.S. Forest
Serv., 469 F.3d 768, 778 (9th Cir. 2006).
Three motions for summary judgment remain pending before the Court. TC
Energy filed a Motion for Summary Judgment on all claims on January 24, 2020.
(Doc. 96). Federal Defendants filed a Motion for Summary Judgment on February
25, 2020. (Doc. 108). Plaintiffs filed a Motion for Summary Judgment with respect
to its constitutional, mineral, and tribal jurisdiction claims (Claims Two, Five, and
Six) on February 25, 2020. (Doc. 113).
The Court’s above determination that the 2019 Permit authorizes only the
1.2-mile border crossing segment makes summary judgment appropriate in part.
Plaintiffs have asserted claims relating to mineral and tribal jurisdiction based on
the 1851 Fort Laramie Treaty and the 1855 Lame Bull Treaty. (Doc. 114 at 19–33).
Those claims only extent to tribal land that lie well outside the 1.2-mile border
crossing segment, and so they are not implicated in this case centered on the 2019
Permit. See Gros Ventre Tribe v. United States, 469 F.3d 801, 813 (9th Cir. 2006)
(“[T]he United States agreed to protect the Tribes from depredations that occurred
only on tribal land.”). The 2019 Permit grants no exemptions to laws governing
public land use or tribal land use. Such laws still apply to the Keystone XL
project—including over federal lands in that first 1.2-mile segment. The 2019
Permit does not authorize pipeline construction across tribal land, however, and so
Plaintiffs’ mineral and treaty claims fail. The Court will grant summary judgment
in part for Federal Defendants and TC Energy on those claims, and, therefore, deny
summary judgment in part for Plaintiffs on those claims. What remains of
Plaintiffs’ Motion for Summary Judgment is their claim based on the U.S.
Constitution. That constitutional claim will be the subject of additional briefing
Finally, Plaintiffs raised in their opposition to Federal Defendant’s Motion
for Summary Judgment that they sought to challenge an additional action by BLM.
TC Energy sought and received a right-of-way permit from BLM for the 1.2-mile
border-crossing segment as well as approximately 43 other miles of federal land.
See U.S. Bureau of Land Management, Record of Decision: Keystone XL Pipeline
Project Decision to Grant Right-of-Way and Temporary Use Permit on Federally
Administered Land, DOI-BLM-MT-C020-2020-0022-OTHER_NEPA (Jan. 22,
2020). BLM issued their record of decision (“2020 ROD”) regarding the Keystone
right-of-way on January 22, 2020. Id. The 2020 ROD relies, in turn, on the
findings of a Final Supplemental Environmental Impact Statement for the
Keystone XL Project (“2019 FSEIS”), 84 Fed. Reg. 70,187, 70,188 (Dec. 20,
2019), in response to a previous Order by the Court. See IEN v. U.S. Department of
State, et al., 347 F.Supp.3d 561 (D. Mont. 2018). Plaintiffs requested that the Court
“incorporate Interior’s final agency action into the complaint by amendment under
Fed. R. Civ. P. 15(b). (Doc. 137 at 2 (citing Desertrain v. City of L.A., 754 F.3d
1147 (9th Cir. 2014)).
The Court declines this collateral attempt to amend Plaintiffs’ complaint by
incorporation. Rule 12(b) provides courts with the ability to treat a complaint as
amended at trial to allow for introduction of certain evidence or when an issue is
tried by consent of the opposing party. See Fed. R. Civ. P. 15(b). Neither situation
applies to this case. Such an amendment would unduly prejudice Federal
Defendants and cause undue delay in the proceedings with the development of a
new administrative record. Plaintiffs sought to add these new claims through an
opposition brief in the midst of summary judgment briefing, a month after they had
filed their own summary judgment motion on existing claims, and only a month
before the full set of summary judgment motions would be argued for final
disposition. This maneuver was procedurally problematic, but there remain other
options for Plaintiffs to challenge the 2020 ROD. The 2020 ROD is already the
subject of two other lawsuits before the Court. See Bold All. v. U.S. Dep’t of the
Interior, 4:20-cv-00059-BMM-JTJ (D. Mont.); Assiniboine & Sioux Tribes of the
Ford Peck Indian Rsrv. v. U.S. Dep’t of the Interior, 4:20-cv-00044-BMM-JTJ (D.
Mont.). Those cases remain in the early stages of litigations. Plaintiffs may seek to
intervene in one of these two cases or may file a separate action that can be heard
on similar schedule to these existing lawsuits. Denial of this motion will not cause
undue burden or prejudice to Plaintiffs under these circumstances.
Additional Briefing on Authority for the 2017 Presidential Permit
Plaintiffs raised three claims in their Complaint: that President Trump’s
issuance of the 2019 Permit 1) violated the Property Clause of the U.S.
Constitution; 2) violated the Commerce Clause of the U.S. Constitution; and 3)
violated Executive Order 13,337. (Doc. 37 at 24, 27, 31). These claims implicate
novel and complex separation of powers questions. The Court earlier sought
supplemental briefing on separation of powers among other issues. (Doc. 93). The
Court now seeks to narrow the constitutional analysis. The Court will require
further briefing, however, in an effort to distinguish the exact contours of
presidential and congressional authority over pipeline border-crossing permits.
The Youngstown Framework
The President wields significant authority, particularly in the “era of
presidential administration.” Elena Kagan, Presidential Administration, 114 Harv.
L. Rev. 2245, 2246 (2001). This significant authority comes with critical
limitations intended to safeguard our constitutional system—particularly when the
President takes unilateral action. See Youngstown Sheet & Tube v. Sawyer, 343
U.S. 579, 634 (1952) (Jackson, J., concurring) (cautioning the dangers of a
strengthened executive on the “balanced power structure of our Republic”). These
safeguards include the separation of powers between the coordinate branches, the
qualified delegation of authority from Congress, and federalism. See, e.g.,
Mistretta v. United States, 488 U.S. 361, 380 (1989) (noting that the constitutional
principle of separation of powers embodies “the central judgment of the Framers of
the Constitution that, within our political scheme, the separation of governmental
powers into three coordinate Branches is essential to the preservation of liberty” in
order to preventing aggrandizement by one branch encroaching into the sphere of
authority of another); Buckley v. Valeo, 424 U.S. 1, 122 (1976) (per curiam) (“The
Framers regarded the checks and balances that they had built into the tripartite
Federal Government as a self-executing safeguard against the encroachment or
aggrandizement of one branch at the expense of the other.”).
A court may determine whether a unilateral presidential action went beyond
the bounds of the executive power and infringed on the enumerated powers of
Congress. Even where the President has broad discretion over an issue, “that
discretion is not boundless” and “may not transgress constitutional limitations.”
Abourezk v. Reagan, 785 F.2d 1043, 1061 (D.C. Cir. 1986). It remains “the duty of
the courts, in cases properly before them, to say where th[e] . . . constitutional
boundaries lie.” Id. Justice Jackson established a three-category framework to
assess the constitutionality of an executive action. See Youngstown Sheet & Tube,
343 U.S. at 635–37 (Jackson, J., concurring).
In the first category, “[w]hen the President acts pursuant to an express or
implied authorization [from Congress], his authority is at its maximum.” Id. at 635.
When Congress legislates to give the President authorization to act on a subject,
the President personifies “the federal sovereignty,” and his actions are
presumptively valid. Id. at 636–37. Few cases apply this first category. In those
cases that do exist, the U.S. Supreme Court tends to find both express and implied
authorization as reinforcing factors placing the executive action into this category.
See, e.g., Trump v. Hawaii, 138 S. Ct. 2392, 2407–08 (2018); Dames & Moore v.
Regan, 453 U.S. 670, 669 (1981).
In the second category, when the “President acts in absence of either a
congressional grant or denial of authority” relying on “his own independent
powers” then “congressional inertia, indifference or quiescence may sometimes, at
least as a practical matter, enable, if not invite, measures on independent
presidential responsibility.” Youngstown, 343 U.S. at 637. Still fewer cases exist
involving this second category of executive action. See, e.g., Zivotofsky v. Kerry,
576 U.S. 1059, 1088–94 (2015); United States v. Midwest Oil Co., 236 U.S. 459,
In the third category, “[w]hen the President takes measures incompatible
with the expressed or implied will of Congress, his power is at its lowest ebb.”
Youngstown, 343 U.S. at 637. In such a case, Presidents may rely only on their own
independent power, after “subtraction of such powers as Congress may have over
the subject.” Id. at 639. Several examples of this third category exist. See, e.g.,
Zivotofsky v. Kerry, 576 U.S. 1059, 1088–94 (2015); Medellín v. Texas, 552 U.S.
491, 525–29 (2008).
The three Youngstown categories prove useful, but they serve only as guides.
Executive actions “in any particular instance fall not neatly in one of three
pigeonholes, but rather at some point along a spectrum running from explicit
congressional authorization to explicit congressional prohibition.” Dames & Moore
v. Regan, 453 U.S. 670, 669 (1981). “[T]he great ordinances of the Constitution do
not establish and divide fields of black and white.” Id. at 669 (quoting Springer v.
Philippine Islands, 277 U.S. 189, 209 (1928) (Holmes, J., dissenting).
In separation of powers cases, the U.S. Supreme Court “has often ‘put
significant weight upon historical practice.’” Zivotofsky, 135 S. Ct. at 2091
(quoting NLRB v. Noel Canning, 134 S. Ct. 2550, 2559 (2014)). The history of the
pipeline permitting process involved a string of executive actions. The
constitutionality of any particular executive action must be analyzed in its own
context, and each executive decision over the history of a particular policy may fall
at a unique point on the Youngstown framework spectrum.
The Supreme Court provided a model for historical analysis of a particular
power in Zivotofsky. Justice Anthony Kennedy systematically analyzed the history
of the legislative and executive contest over the power to recognize foreign
nations. See Zivotofsky, 576 U.S. at 23-28. Justice Kennedy meticulously
categorized a series of historical recognition decisions within the Youngstown
framework in order to contextualize the particular recognition decision before the
Supreme Court. See id. This model for separation of powers analysis proves useful
and applicable to the case before the Court today.
The history of presidential permits for pipelines—and for Keystone in
particular—provides a new example of historical inter-branch conflict. This Court
previously sought additional briefing to inform its analysis of the separations of
powers questions implicated in this case. (Doc. 74). The Court now seeks
additional briefing with more specific direction.
The Court seeks briefing on the application of Youngstown to the timeline of
pipeline border-crossing permits. The Parties should assume that the Foreign
Commerce Clause, the Property Clause, and the various executive and legislative
powers relating to foreign affairs remain relevant to this analysis. (Doc. 73 at 21–
34). The Parties should center analysis on border-crossing pipeline permits, not
border-crossing permits in general.
1. Where on the Youngstown spectrum do each of the following individual
executive actions lie:
a. Issuance of pre-1968 cross-border pipeline permits;
b. Issuance of Executive Order 11423, Providing for the Performance of
Certain Functions Heretofore Performed by the President with
Respect to Certain Facilities Constructed and Maintained on the
Borders of the United States, Exec. Order 11423, 33 Fed. Reg. 11741
(Aug. 20, 1968);
c. Executive Order 13,337, Issuance of Permits With Respect to Certain
Energy-Related Facilities and Land Transportation Crossings on the
International Boundaries of the United States, Exec. Order No.
13,337, 69 Fed. Reg. 25299 (April 30, 2004);
d. State Department Denial of TC Energy’s application following
Congress’ passage of the Temporary Payroll Tax Cut Continuation
Act (“TPTCCA”), Pub. L. No. 112-78, 125 Stat. 1280 (December 23,
e. President Barack Obama’s veto of the Keystone XL Pipeline
Approval Act. Veto Message to the Senate: S. 1, Keystone XL
Pipeline Approval Act, 2015 WL 758544 (2015); and
f. President Donald Trump’s issuance of the 2019 Permit.
2. Address the following additional questions that will inform the Court’s
a. Did TPTCCA endorse the EO 13,337 process generally?
b. Did TPTCCA endorse the EO 13,337 process only for Keystone?
c. Assuming TPTCCA endorsed the EO 13,337 process for Keystone,
how could TC Energy obtain a permit once President Obama denied
d. How should the Court interpret the passage of the Keystone XL
Pipeline Approval Act?
Accordingly, IT IS ORDERED that:
• Plaintiffs’ Motion for Preliminary Injunction (Doc. 119) is DENIED;
• Plaintiffs’ Motion for Temporary Restraining Order (Doc. 130) is
• TC Energy’s and Federal Defendants’ Motions for Summary
Judgment (Docs. 96, 108) are GRANTED IN PART on Plaintiffs’
Claims Five and Six;
• Plaintiffs’ Motion for Summary Judgment (Doc. 113) is DENIED IN
PART on Claims Five and Six;
• The Parties shall file simultaneous briefing, not to exceed 10,000
words, on the issues listed in Part III.b of this Order within 30 days of
the issuance of this Order.
Dated the 16th day of October, 2020.
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