Why a Judge's Order to Let Keystone XL Pipeline Construction Begin Is Still a Win

Another day, another Keystone XL protest.
Photo: Getty

President Donald Trump is determined on ensuring the Keystone XL Pipeline becomes a reality, including trying to squash lawsuits against him and the project. A court ruled Friday, however, against his motion to dismiss an ongoing lawsuit that could stop the 1,184-mile-long crude oil pipeline.

And that’s pretty amazing.

The gigantic pipeline would transport up to 830,000 barrels of oil a day between Alberta, Canada, and the Gulf Coast. Any spill may pose to water and land, and all the oil it could transport will worsen climate change. Former President Barack Obama rejected it in 2015 after protests grew heated. Environmentalists and landowners whose backyard this monstrosity would run through were pumped.

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Unfortunately, the current president decided to revive Keystone XL within his first month in the White House through executive order. U.S. District Court Judge Brian Morris—the same one ruling here—reversed that in November 2018, but that didn’t stop Donald Trump who issued a new presidential permit in April.

Environmental groups such as the Indigenous Environmental Network, sued the administration arguing the new permit was illegal, but the president’s people filed a motion to dismiss the lawsuit altogether. The courts denied that Friday, adding the whirlwind that’s surrounded the pipeline for a decade.

“[T]his is a complete win for the tribes on the motions to dismiss,” Native American Rights Fund attorney Natalie Landreth said in a statement. “We look forward to holding the Trump Administration and TransCanada accountable to the Tribes and the applicable laws that must be followed.”

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Indeed, Judge Morris is clear plaintiffs have a case. He notes that they have offered enough proof that the president may have broken the law by issuing this permit earlier this year. He writes in his order:

“Plaintiffs’ assertion that the President lacks the inherent constitutional authority to issue the 2019 Permit, combined with Congress’s approval of the 2004 Executive Order’s permitting process through the [Temporary Payroll Tax Cut Continuation Act], sufficiently supports Plaintiffs’ claim that the 2019 Permit violated the 2004 Executive Order at this stage in the litigation.”

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Many environmental activists, especially indigenous leaders who’ve been at the forefront of fighting the pipeline, are celebrating this ruling as a victory. That being said, the ruling isn’t entirely a win.

The plaintiffs were denied their request for a temporary injunction, which would have stopped all work on the pipeline project during the judicial review process. Though there’s currently no ongoing work, pipeline developer TC Energy (formerly known as TransCanada) plans to begin pre-construction work come spring 2020. That work will include transporting pipes and establishing worker camps, which present their own dangers to local communities but especially to indigenous women.

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While the judge acknowledged there’s case here, his order said he can’t stop anything that isn’t yet happening. In short, plaintiffs must renew their request once activity actually begins. That’s not necessarily a bad thing, but opponents were hoping to stop any of it from even starting during this litigation in the first place. This ruling allows pre-construction to start and continue while opponents wait for a response from the courts after they file.

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“That is a scenario that could definitely play out, and it is concerning for us,” Dallas Goldtooth, an organizer with Indigenous Environmental Network, told Earther.

On the flip side, however, Goldtooth said this might be a good thing. A temporary injunction could’ve potentially given TC Energy a better case for an appeal. It’s tough to know for sure how that appeal would’ve shaken out, but Goldtooth and other groups are still celebrating this ruling. And they’re also preparing for what’s to come. Attempts to stop the pipeline have only grown in intensity after Keystone XL’s forebearer—the Keystone Pipeline—suffered a major spill in November.

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“We are continuing to prepare for as many scenarios as possible,” Goldtooth said. “We stand strong with local communities who are defending the sacredness of their land, air, water, and communities. Should construction begin, we want to support communities to defend the sacred.”

That means, in part, preparing for an increased police presence, especially in the state of South Dakota where Governor Kristi Noem is planning a second round of riot-boosting laws after the courts ruled against her first batch.

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“These riot-boosting laws, their intention is clear as day for everybody,” Goldtooth said. “It’s obvious that the governor is targeting Native communities. It’s obvious that the governor does not want Native peoples to stand up and assert their first amendment right and protect their communities. Everyone I talk to, it’s clear as day that these are racist laws, and they have to be challenged and rejected.”

The fight against this pipeline is going to really rev up come 2020. Construction will begin this coming year. That much is clear. The question is: What happens after the pipes reach the construction site?

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About the author

Yessenia Funes

Senior staff writer, Earther. The one who "pulls the race card" in the name of environmental justice. You dig?

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