Case 4:17-cv-00029-BMM Document 218 Filed 11/08/18 Page 1 of 54
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
NETWORK and NORTH COAST
NORTHERN PLAINS RESOURCE
COUNCIL, et al.,
UNITED STATES DEPARTMENT
OF STATE, et al.,
PIPELINE and TRANSCANADA
Plaintiffs Indigenous Environmental Network and Northern Plains Resource
Council (collectively aPlaintiffsa) bring this action against the United States
Department of State (athe Departmenta) and various other governmental agencies
and agents in their official capacities. Plaintiffs allege that the Department violated
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the Administrative Procedure Act (aAPAa), the National Environmental Policy Act
(aNEPAa), and the Endangered Species Act (aESAa) when it published its Record
of Decision (aRODa) and National Interest Determination (aNIDa) and issued the
accompanying Presidential Permit to allow defendant-intervenor TransCanada
Keystone Pipeline, LP (aTransCanadaa) to construct a cross-border oil pipeline
known as Keystone XL (aKeystonea). Plaintiffs have moved for summary
judgment. (Docs. 139 & 145.) The Department and TransCanada (collectively
aDefendantsa) have filed cross motions for summary judgment. (Docs. 170 &
The Court detailed the background of this case in its Order regarding the
Departmentas and TransCanadaas Motion to Dismiss for Lack of Jurisdiction.
(Doc. 99.) The Court will only recite those facts that have arisen since its Partial
Order on Summary Judgment Regarding NEPA Compliance. (aPartial Ordera)
The Court directed the Department, in its Partial Order, to supplement the
2014 final supplemental EIS (a2014 SEISa) to consider the Mainline Alternative
route as approved by the Nebraska Public Service Commission. (Doc. 210 at 12.)
The Court declined, however, to vacate the Presidential Permit. The Court instead
ordered the Department to file a proposed schedule to supplement the 2014 SEIS in
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a manner allowing appropriate review before TransCanadaas planned construction
The Department published the Notice of Intent to Prepare a SEIS in the
Federal Register on September 17, 2018. 83 Fed. Reg. 46,989 (Sept. 17, 2018).
The Department published the Notice of Availability of the Draft SEIS in the
Federal Register on September 24, 2018. 83 Fed. Reg. 48,358 (Sept. 24, 2018).
The Court will address each remaining issue in turn.
A court should grant summary judgment where the movant demonstrates
that no genuine dispute exists aas to any material facta and the movant is aentitled
to judgment as a matter of law.a Fed. R. Civ. P. 56(a). Summary judgment remains
appropriate for resolving a challenge to a federal agencyas 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).
The APA standard of review governs Plaintiffsa claims. See W. Watersheds
Project v. Kraayenbrink, 632 F.3d 472, 481 (9th Cir. 2011); Bennett v. Spear, 520
U.S. 154, 174 (1997). The APA instructs a reviewing court to ahold unlawful and
set asidea agency action deemed aarbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.a 5 U.S.C. ASS 706(2)(A). A rational
connection must exist between the facts found and the conclusions made in support
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of the agencyas action. Kraayenbrink, 632 F.3d at 481. The Court reviews the
Departmentas compliance with NEPA and the ESA under the arbitrary and
capricious standard pursuant to the APA. See Ctr. for Biological Diversity v. Natal
Highway Traffic Safety Admin., 538 F.3d 1172, 1194 (9th Cir. 2008).
Did the Department Violate NEPA when it Approved Keystone?
Plaintiffs first allege that the Department violated NEPA when it approved
Keystone. (Doc. 140 at 20.) NEPA serves as the abasic national charter for
protection of the environment.a 40 C.F.R. ASS 1500.1(a). NEPA requires federal
agencies to prepare a adetailed statementa for any amajor Federal actions
significantly affecting the quality of the human environment.a 42 U.S.C. ASS
4332(2)(C). The agencyas detailed statement is known as an environmental impact
statement (aEISa), and must describe the environmental impacts of the proposed
action. 42 U.S.C. ASS 4332(2)(C)(i), (ii).
The EIS must include a afull and fair discussiona of the effects of the
proposed action, including those on the aaffected region, the affected interests, and
the locality.a 40 C.F.R. ASSASS 1502.1, 1508.27(a). An agency also may be required to
perform a supplemental analysis aif significant new circumstances or information
relevant to environmental concerns and bearing on the proposed action or its
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impactsa arise during the NEPA review. 40 C.F.R. ASS 1502.9(c)(1)(ii). The Court
must ensure that the agency has taken a ahard looka at the environmental
consequences of its decision. Churchill Cnty. v. Norton, 276 F.3d 1060, 1072 (9th
A. Purpose and Need Statement
Plaintiffs challenge the reasonableness of the Departmentas purpose and
need statement. (Doc. 146 at 22.) Plaintiffs allege that the Department violated
NEPA when it focused the purpose and need narrowly on TransCanadaas private
interests and improperly restricted the scope of the 2014 SEIS. Id.
NEPA requires agencies to abriefly specify the underlying purpose and need
to which the agency is responding in proposing the alternatives including the
proposed action.a 40 C.F.R. ASS 1502.13. Courts afford agencies aconsiderable
discretion to define the purpose and need of a project.a Westlands Water Dist. v.
U.S. Dept. of Interior, 376 F.3d 853, 866 (9th Cir. 2004). NEPA permits an agency
to consider the needs and goals of the parties involved in the application. 40 C.F.R.
ASS 1508.18(b)(4). The agency may consider the context of the action proposed, as
well as the objectives of the private applicant. Alaska Survival v. Surface Transp.
Bd., 705 F.3d 1073, 1085 (9th Cir. 2013). A purpose and need statement will fail,
however, if it unreasonably narrows the alternatives in a manner that preordains the
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outcome. Id. at 1085. The Courtas duty requires it to review the purpose and need
statement for reasonableness. Westlands Water Dist., 376 F.3d at 866.
The purpose and need statement reasonably defines both TransCanadaas and
the Departmentas purposes. For TransCanada, athe primary purpose of [Keystone]
is to provide the infrastructure to transport Western Canadian Sedimentary Basin
(aWCSBa) crude oil from the Canadian border, to existing pipeline facilities near
Steele City, Nebraska, for onward delivery to Cushing, Oklahoma, and the Texas
Gulf Coast area.a DOSKXLDMT0005756. Most of the crude oil ultimately would
be delivered to refineries in the Gulf Coast area. Id. TransCanada maintains
contractual obligations to transport approximately 555,000 barrels per day (abpda)
of WCSB crude oil to the Gulf Coast area. Id. Keystone would serve to fulfill
TransCanadaas need to meet contractual demand, compete with other
transportation options, and to provide refiners a reliable supply of light crude oil
from the WCSB and the Bakken. Id. at 5757.
The Departmentas purpose stems from the Presidentas authority to require
permits for transboundary projects. Executive Order 13,337 delegates to the
Secretary of State (aSecretarya) the authority to receive applications for crossborder permits. 69 Fed. Reg. 25,299 (April 30, 2004). As part of this delegation,
the Secretary must determine if issuance of a permit would serve the national
interest. Id. at 25,300.
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The Departmentas purpose, therefore, stems from Keystoneas crossing of the
international border between the United States and Canada. This crossing requires
a cross-border permit. DOSKXLDMT0005757. The Department must put forth a
ROD approving or denying TransCanadaas cross-border permit application. Id. The
Department needed to consider Keystoneas application and whether it would serve
the national interest. Id. The Department reached a national interest determination
based on its evaluation of the Keystoneas potential environmental, cultural,
economic, and other impacts. Id.
No error exists in the Departmentas purpose and need statement. The
Department possesses broad discretion to define the purpose of its actions. The
Department may consider private interests as part of its purpose and need. See
Alaska Survival, 705 F.3d at 1085. The Department reasonably stated that it sought
to determine whether approval of the permit would serve the national interest.
DOSKXLDMT0005757. The Departmentas purpose and need statement further
proves reasonable when it considered both TransCanadaas private interests and the
Departmentas own requirements for issuing cross-border permits.
B. Adequacy of Alternatives
Plaintiffs next allege that the Department violated NEPA by failing to
consider a reasonable range of alternatives in approving Keystone. (Doc. 146 at
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24-25.) Plaintiffs allege that the Department unreasonably dismissed alternatives
that did not satisfy TransCanadaas purpose. Plaintiffs further contend that the
Department failed to consider feasible, environmentally beneficial alternatives. Id.
1. Dismissal of Alternatives
Plaintiffs allege that the Department only analyzed alternatives that satisfied
TransCanadaas private needs. Id. at 23-24. NEPA requires that an agency
a[r]igorously explore and objectively evaluate all reasonable alternatives, and for
alternatives which were eliminated from detailed study, briefly discuss the reasons
for their having been eliminated.a 40 C.F.R. ASS 1502.14. An agencyas consideration
of alternatives is dictated by the anature and scope of the proposed action.a Nw.
Envtl. Def. Ctr. v. Bonneville Power Admin., 117 F.3d 1520, 1538 (9th Cir. 1997).
An agency need not analyze alternatives that do not meet the agencyas purpose and
need. League of Wilderness Defs.-Blue Mountains Biodiversity Project v. U.S.
Forest Serv., 689 F.3d 1060, 1071 (9th Cir. 2012). However, a[t]he existence of
reasonable but unexamined alternatives renders an EIS inadequate.a Ctr. for
Biological Diversity v. U.S. Dept. of Interior, 623 F.3d 633, 643 (9th Cir. 2010)
(quoting Friends of Southeastas Future v. Morrison, 153 F.3d 1059, 1065 (9th Cir.
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The Department adequately examined proposed alternatives and reasonably
excluded those that did not meet the Projectas purpose and need. The factors that
the Secretary deemed relevant to the national interest included the following:
aforeign policy; energy security; environmental, cultural, and economic impacts;
and compliance with applicable law and policy.a DOSKXLDMT0002493. The
2014 SEIS articulated and analyzed the proposed Project and the alternatives. The
2014 SEIS also provided a separate section that detailed the alternatives
considered, but excluded from further consideration. Id. at 6082. The Department
set forth reasonable explanations for why each excluded alternative did not meet
the private needs of TransCanada. Further, the Department explained why it
excluded the alternatives due to national interest factors including environmental
and cultural resources, or increased spill risk. The Departmentas analysis of both
the private interest of TransCanada and the Departmentas national interest
considerations (i.e. environmental and cultural impacts) proves reasonable in its
dismissal of alternatives.
2. Range of Alternatives
Plaintiffs next argue that the Department failed to analyze a reasonable range
of alternatives because it did not consider more environmentally beneficial
alternatives. (Doc. 146 at 24.) The alternatives requirement ais the heart of the
environmental impact statement.a 40 C.F.R. ASS 1502.14. An agency must
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a[r]igorously explore and objectively evaluate all reasonable alternatives,a
including the aalternative of no action.a 40 C.F.R. ASS 1502.14(c). The range of
alternatives amust be bounded by some notion of feasibility.a Vt. Yankee Nuclear
Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 551-52 (1978). The
Court limits its review of the sufficiency of alternatives to whether the agency
considered alternatives anecessary to permit a reasoned choice.a Cal. v. Block, 690
F.2d 753, 767 (9th Cir. 1982).
The Department set forth four alternatives, including a no action alternative.
DOSKXLDMT0005946. Each alternative chosen, including the no action
alternative, comports with the Projectas underlying purpose and need, as they
address both the private interests of TransCanada and the Departmentas national
interest. The 2014 SEISas comparison of the chosen alternatives also provides the
Department with a reasoned choice. See Block, 690 F.2d at 767. Accordingly, the
range of alternatives analyzed by the Department proves reasonable.
3. No Action Alternative
Plaintiffs next allege that the Department failed to establish a true no action
alternative. (Doc. 140 at 26.) NEPA requires a afull and fair discussiona of direct,
indirect, and cumulative effects of the proposed action. 40 C.F.R. ASSASS 1502.1,
1502.16(a), (b), (h), 1508.25(c). NEPA also requires that aall reasonable
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alternativesa to the proposed action, including no action be addressed. 40 C.F.R. ASS
1502.14(a), (d). Part of the no action alternative includes consideration of the
apredictable actions of others.a 46 Fed. Reg. 18,026, 18,027 (Mar. 23, 1981).
The Departmentas no action alternative articulates four scenarios that would
occur in the absence of the pipeline. The Status Quo Baseline scenario represents
the first alternative. aUnder the Status Quo Baseline, the proposed Project would
not be built.a DOSKXLDMT0006050. Accordingly, the 2014 SEIS concludes that
the environmental conditions would remain the same under this scenario. Id. The
Department also analyzed three intermodal options including a aRail/Pipeline
Scenario,a aRail/Tanker Scenario,a and a aRail direct to the Gulf Coast Scenario.a
Id. at 6061-81. The Department purported to analyze these scenarios as
illustrations of the likely potential impacts associated with transport of crude oil in
the absence of Keystone. Id. at 61.
Plaintiffs correctly note that NEPA obligates agencies to provide only a
single no action alternative. See 40 C.F.R. ASS 1502.14(d). More importantly,
however, the Court must consider whether providing more than one alternative
proves arbitrary and capricious. Plaintiffs rely on Conservation Nw. v. Rey, 674
F.Supp.2d 1232 (W.D. Wash. 2009), in which parties challenged a forest
management plan as part of the protracted litigation involving the spotted owl. The
Forest Service analyzed two no action alternatives that represented its attempt to
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reconcile the latest iteration of the forest management plan with the effects of
recent litigation. Id. at 1246-47. The district court determined that having two noaction alternatives in the environmental analysis proved irrational when only one
baseline could exist. Id. at 1247. The district court determined that NEPA required
the Forest Service ato provide a single, comprehensive no-action alternative that
accurately represented the status quo at the time of the 2007 Final Supplement.a Id.
By contrast, Defendants argue that nothing in NEPA prohibits analysis of
multiple no action scenarios. Defendants cite Mont. Wilderness Assan v. McAllister
658 F.Supp.2d 1249, 1264 (D. Mont. 2009); affad, 666 F.3d 549 (9th Cir. 2011);
460 Fed. Appax 667 (9th Cir. 2011), where parties challenged the Forest Serviceas
revised travel management plan for the Gallatin National Forest. The Forest
Service evaluated two alternatives as the ano action alternatives.a McAllister, 658
F.Supp.2d at 1264. Alternative 1 considered aoff road motorized vehicle as it was
prior to 2001a when an off-highway vehicle ban had been approved. Id.
Alternative 2 contemplated athe possibility that use generally will continue on road
and trails being useda at the time of the proposed travel plan amendment. Id. The
district court determined that each of the ano action alternativesa reasonably
reflected the exemptions, discretion, and latitude in the Forest Serviceas current
management policies. Id.
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The Ninth Circuit agreed that having two no-action alternatives emphasized
the validity of the Forest Serviceas alternatives analysis. 460 Fed. Appax at 671.
The Ninth Circuit reasoned that the Forest Service had aconstructed two no action
alternativesa due to uncertainty as to how it ultimately would implement the ban on
off-highway travel. Id. (emphasis in original). The Ninth Circuit deemed nothing
unreasonable about the Forest Serviceas formulation of these no-action alternatives
under those circumstances. Id. The same reasoning applies to the alternatives
articulated by the Department. Uncertainty regarding what would happen in the
absence of Keystone supported the discussion of three no action alternatives in the
C. Keystoneas Impact on Tar Sands Production
1. The Departmentas aMarket Analysisa
Plaintiffs suggest that the amarket analysisa section of the EIS improperly
supports a conclusion that the same level of tar sands production would be
inevitable regardless of whether the Department approved Keystone. Plaintiffs
argue that this unsubstantiated assumption led to an arbitrary conclusion that
Keystone would have no impact on the worldas climate. (Doc. 140 at 20.) NEPAas
afull and fair discussiona requirement directs an agency to look at a Projectas
adirecta and aindirecta effects. 40 C.F.R. ASS 1508.8(a)-(b). Indirect effects include
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those acaused by the action and are later in time or farther removed in distance, but
are still reasonably foreseeable.a 40 C.F.R. ASS 1508.8(b).
Defendants argue, and the Court agrees, that the 2014 SEIS contained a full
and fair discussion of the market demand for oil. (Doc. 173 at 31.) The 2014 SEIS
set forth 140 pages of modeling why Keystone would not affect significantly the
rate of extraction of oil from Canadian oil sands. Id. at 36 (citing
DOSKXLDMT0005760-5908). The 2014 SEIS determined that the pipeline would
not affect significantly oil extraction in Canada. As a result of this determination,
the 2014 SEIS reasoned that the emissions associated with transporting 830,000
bpd of tar sands crude oil (Keystoneas capacity), would occur regardless of the
pipelineas existence. To reach this conclusion, the 2014 SEIS analyzed numerous
factors, including the price of oil, transportation costs, and supply and demand for
The WCSB produced 1.8 million bpd of crude oil when the Department
issued the 2014 SEIS. The 2014 SEIS estimated that production would increase to
at least 5 million bpd by 2030. Id. at 5789. The 2014 SEIS further concluded that
increased transportation capacity of oil from Canada by other pipelines and rail
transportation would meet demand. Id. at 5803. The 2014 SEIS reasoned that
existing pipeline capacity stood at 3.3 million bpd in 2014. The 2014 SEIS also
concluded that rail capacity supported 700,000 bpd, and estimated that rail capacity
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would increase to 1.1 million bpd by the end of 2014. Id. at 5804. Defendants
argue that rail transportation would fill any void in crude oil transportation in the
absence of construction of expanded pipeline capacity. (Doc. 173 at 35.)
The Court must limit its review to determining whether the 2014 SEIS took
a ahard looka at the effects of Keystone on oil markets. See Norton, 276 F.3d at
1072. The Department met this ahard looka requirement in its market analysis and
its conclusion that Keystone would not impact the rate of tar sands extraction. The
Department provided sufficient analysis that went beyond mere assumptions of the
rate of oil sands extraction rates in 2014. The Court finds no error in the
Departmentas 2014 analysis of the rate of tar sands extraction and its impact on
2. New Information Since 2014
Plaintiffs argue, however, that significant new information has come forth
since 2014 regarding oil markets, rail transportation, and greenhouse gas emissions
that requires a supplement of the Projectas impacts. (Doc. 140 at 35.) NEPA
imposes a continuing duty on federal agencies to supplement new and relevant
information. Price Rd. Neighborhood Assan v. U.S. Depat of Transp., 113 F.3d
1505, 1508-09 (9th Cir. 1997). NEPA requires a supplemental EIS if an aagency
makes substantial changes in the proposed action that are relevant to environmental
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concerns; or there are significant new circumstances or information relevant to
environmental concerns and bearing on the proposed action or its impacts.a 40
C.F.R. ASS 1502.9(c)(i)-(ii). An agency is not required, however, to asupplement an
EIS every time new information comes to light after the EIS is finalized.a Marsh v.
Or. Nat. Res. Council, 490 U.S. 360, 373 (1989). A supplement proves necessary
aif the new information [presented] is sufficient to show the remaining action will
aaffec[t] the quality of the human environmenta in a significant manner or to a
significant extent not already considered[.]a Id. at 374 (quoting 42 U.S.C. ASS
a. Change in Oil Markets
Plaintiffs first argue that the Department failed to consider a decrease in oil
prices in the 2014 SEIS. (Doc. 140 at 27.) The 2014 SEIS analyzed the possibility
of moderate fluctuations in oil prices and the possibility of a low oil price scenario.
The 2014 SEIS failed to address, however, the significant changes in oil prices that
have occurred since 2014. This lack of analysis fails to satisfy NEPAas hard look
requirement. The 2014 SEIS stated that apipeline constraints are unlikely to impact
production given expected supply-demand scenarios, prices, and supply costs.
Over the long term, lower-than-expected oil prices could affect the outlook for oil
sand production[.]a DOSKXLDMT0005895. The Department acknowledges that a
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significant drop in oil prices materially could change the analysis. The 2014 SEIS
conditioned much of its analysis, however, on the price of oil remaining high.
The record demonstrates the need to supplement. The 2014 SEIS stated the
price of crude oil would range from $100 per barrel to $140 per barrel over twenty
years. Id. at 5864. The 2014 SEIS predicts the price of oil needed to fall within the
range of $65-$75 per barrel in order for Keystone to break even. Id. at 5767. The
2014 SEIS concedes that Keystone would be affected by supply costs if the oil
prices fell within or below that range. Id.
The United States Energy Information Administration predicts that the price
of oil likely will remain below $100 for decades. Id. at 1849. The record shows
further that a dramatic drop in oil prices occurred soon after publication of the
2014 SEIS that lowered the price to nearly $38 per barrel. The Department
suggests that the current price of oil stands at roughly $60 per barrel. (Doc. 173 at
49.) This drop constitutes more than a mere fluctuation in oil prices.
Plaintiffs also present evidence that the Environmental Protection Agency
called upon the Department to revisit the EISas conclusions after the 2015 oil
prices dropped. (Doc. 140 at 36 (citing DOSKXLDMT0000973-74).) Oil prices
have remained below the abreak-evena numbers established in the 2014 SEIS. This
new and relevant information bears upon the Departmentas earlier analysis in the
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2014 SEIS. The Court makes no suggestion of whether this information should
alter the Departmentas analysis. Such an analysis proves material, however, to the
Departmentas consideration of Keystoneas impact on tar sands production.
b. Transportation of Crude Oil by Rail
Plaintiffs next argue that the 2014 SEIS incorrectly concluded that
significant amounts of crude oil would be transported by rail in the absence of
Keystone. (Doc. 140 at 37.) Plaintiffs assert that the 2014 SEIS wrongly predicted
the amount of tar sands that would be shipped by rail, and that new federal
regulations requiring updated train safety measures require a supplement.
Defendants contend that only immaterial changes in crude by rail have occurred
since 2014. (Doc. 173 at 77.) The 2014 SEIS predicts that loading capacity would
increase from 700,000 bpd to 1.1 million bpd. DOSKXLDMT0005805. The ROD
estimates that current rail loading capacity will exceed 1,075,000 bpd. Id. at 2504.
These numbers do not rise to the level of a material discrepancy in capacity.
Plaintiffs argue that tar sands crude oil has not been moving by rail at a
significant rate. (Doc. 140 at 37.) The rate of transportation fails to present a
material issue that would require a supplement. The capacity to transport the
amount predicted in the 2014 SEIS represents the critical issue. Plaintiffs have the
burden of showing that transportation capacity materially differs from its capacity
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in 2014. Plaintiffs have presented no evidence of a significant difference between
current capacity and the 2014 SEIS projections.
c. Greenhouse Gas Emissions
Plaintiffs next allege that the Department violated NEPA by failing to
evaluate the cumulative climate impacts of Keystone in combination with other
pipelines. (Doc. 140 at 27-28.) Plaintiffs argue that the 2014 SEIS viewed
Keystone in isolation. Plaintiffs allege that this isolated view failed to account for
the expansion of the Alberta Clipper pipeline from 450,000 bpd to 880,000 bpd,
and failed to use updated emissions modeling. (Doc. 140 at 29.)
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. When Keystone was proposed, Plaintiffs urged
the Department to evaluate the cumulative climate impacts of Keystone and the
Alberta Clipper expansion in the Keystone 2014 SEIS. The Department
acknowledged the proposed expansion of the Alberta Clipper in the Keystone 2014
SEIS. DOSKXLDMT0005805. The Department failed, however, to analyze the
cumulative greenhouse gas emissions impacts of both pipelines. The Department
instead limited its analysis of emissions to the capacity of Keystone alone.
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The Department analyzed the cumulative emissions of Keystone and the
Alberta Clipper in the Alberta Clipper EIS. The Alberta Clipper EIS also used the
updated Greenhouse Gas, Regulated Emissions, and Energy Use in Transportation
(aGREETa) model to analyze greenhouse gas emissions. Id. at 2501. The GREET
model results in estimates of greenhouse gas emissions that are up to 20% higher
than the model used in the 2014 SEIS. Plaintiffs argue that the development of the
Alberta Clipper expansion, and the new GREET model constitute new and relevant
information that warrants supplement. (Doc. 140 at 42.)
NEPA requires that an EIS consider the cumulative impacts of the proposed
action. 40 C.F.R. ASS 1508.7. aCumulative 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.a Id. The
cumulative impacts analysis must do more than merely catalogue relevant projects
in the area.
Cumulative impacts instead 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 provision requires an agency to
discuss and analyze in sufficient detail to assist athe decisionmaker in deciding
whether, or how, to alter the program to lessen cumulative impacts.a Churchill
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Cnty., 276 F.3d at 1080 (quoting City of Carmel-by-the-Sea v. U.S. Depat of
Transp., 123 F.3d 1142, 1160 (9th Cir. 1997)). Further, the environmental
consequences must be considered together when several projects that may have
cumulative environmental impacts are pending concurrently. Kleppe v. Sierra
Club, 427 U.S. 390, 410 (1976).
Defendants failed to analyze cumulative climate impacts along with the
pending Alberta Clipper expansion. The Court considers the Departmentas analysis
of Keystone in the Alberta Clipper EIS as a cumulative action. See 40 C.F.R. ASS
1508.7. The Department similarly should have analyzed the Alberta Clipper
pipelineas emissions in the Keystone SEIS. The Department argues that the
Keystone SEIS obtained a full picture of the pipelineas climate change impacts.
(Doc. 173 at 43.) The Department also admits, however, that the 2014 SEIS failed
to analyze greenhouse gas emissions associated with the Alberta Clipper. (Doc.
173 at 50-51.) The Department thus failed to paint a full picture of emissions for
these connected actions, and, therefore, ignored its duty to take a ahard look.a See
Norton, 276 F.3d at 1072.
The Department argues that the cumulative analysis in the Alberta Clipper
EIS obviated the need for it to conduct a separate cumulative analysis for
Keystone. The Department equates this omission to harmless error. In determining
whether a NEPA violation proves harmless, a court considers awhether the error
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amaterially impeded NEPAas goals a that is, whether the error caused the agency
not to be fully aware of the environmental consequences of the proposed action,
thereby precluding informed decisionmaking and public participation, or otherwise
materially affected the substance of the agencyas decision.aa Ground Zero Ctr. for
Non-Violent Action v. U.S. Depat of Navy, 860 F.3d 1244, 1252 (9th Cir. 2017)
(quoting Idaho Wool Growers Assan v. Vilsack, 816 F.3d 1095, 1104 (9th Cir.
The Keystone SEIS indicated that greenhouse gas emissions associated with
the pipeline would range annually from 1.3 to 27.4 MMTCO2e. The Alberta
Clipper EIS determined that combined greenhouse gas emissions associated with
both pipelines would range annually from 2.1 to 49.9 MMTCO2e. A difference of
this magnitude cannot be dismissed simply as harmless error. The error left out
significant information from the climate analysis in the Departmentas possession.
The Department should have considered the cumulative impacts of both projects.
The Court recognizes the Departmentas decision to issue the permit regarding the
Alberta Clipper expansion. The Court cannot assume without reasoned analysis,
however, that the Department would reach the same conclusion for the Keystone
permit. The Department must supplement this analysis to include the same
information. Further, the Department must supplement the environmental analysis
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to include the same updated GREET model analysis used in the Alberta Clipper
D. Impacts in Canada
Plaintiffs next argue that the Department violated NEPA by failing to
consider sufficiently potential environmental impacts in Canada. (Doc. 146 at 28.)
The 2014 SEIS explains that Keystone would transport heavy crude oil 1,204 miles
from its existing facilities in Hardisty, Alberta, Canada to Steele City, Nebraska. In
total, the Project would consist of approximately 327 miles of pipeline in Canada,
and 875 miles in the United States. DOSKXLDMT0005752. The 2014 SEIS
analyzed the pipelineas impacts along the 875 miles from the Canadian border to
The 2014 SEIS contained no comprehensive analysis of the impacts in
Canada. The 2014 SEIS provided a section detailing aextraterritorial concernsa that
explained the Canadian governmentas independent environmental review. Id. at
7358. The Department included information of potential impacts in Canada aas a
matter of policy.a Id. Defendants argue that the language of NEPA does not
expressly extend NEPAas applications outside of the territorial United States.
(Doc. 173 at 55.) Defendants also urge that the 2014 SEISas incorporation of the
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Canadian governmentas analysis of the impacts within Canada fulfills its
obligations under NEPA. Id. at 60.
Plaintiffs rely on Backcountry Against Dumps v. Chu, 215 F.Supp.3d 966
(S.D. Cal. 2015), to support NEPAas extraterritorial application. The district court
in Backcountry examined the validity of a Department of Energy (aDOEa) crossborder permit to connect a transmission line across the United States a Mexico
border. Id. at 972. The transmission line would run approximately 1.65 miles in
total, including a 0.65 mile stretch in the United States. Id. The terminus of the
project was to be a planned wind turbine facility in Mexico. Id. The court
considered (1) whether the extraterritorial effects of the proposed transmission line
must be considered, and (2) whether the effects of the wind project itself in both
Mexico and the United States must be considered. Id. at 980.
The district court determined that Congress intended NEPA to apply
extraterritorially. Id. The district court in a subsequent order regarding remedies
recognized, however, that the government of Mexico had conducted significant
environmental review of that portion of the project within Mexico. Backcountry
Against Dumps v. Perry, 2017 WL 3712487, at *3 (S.D. Cal. Aug. 29, 2017). The
district court determined that DOE could attach and incorporate by reference any
environmental documents prepared by the government of Mexico to satisfy its
NEPA obligations. Id.
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The Canadian National Energy Board (aCNEBa) provided substantial
environmental review of those portions of Keystone within Canada. The 2014
SEIS detailed that review. DOSKXLDMT0007358-86. CNEB conducted analyses,
identified issues, held hearings, and issued findings. Id. The CNEB identified
potential adverse environmental effects, including wildlife habitat, groundwater
impacts, and greenhouse gas emissions. Id. at 7362-63. The CNEB further
provided mitigation measures. Id. The CNEB review process also involved
participation by impacted Tribal Nations. Id. at 7379.
CNEBas involvement in Keystone, its environmental review within Canada,
and the incorporation of that review into the 2014 SEIS proves material. NEPA
procedures ensure that the agency makes environmental information available to
the public. 40 C.F.R. ASS 1500.1(b). The 2014 SEISas incorporation of the Canadian
governmentas environmental review sufficiently informed officials and citizens of
impacts in Canada before the Department made a decision and took action on
Keystone. See Id.
E. Other Environmental Impacts
Plaintiffs allege three additional areas where the Department failed to
provide a afull and fair discussion.a These areas include Keystoneas impacts to
cultural resources, the adequacy of comment responses, and oil spills.
Case 4:17-cv-00029-BMM Document 218 Filed 11/08/18 Page 26 of 54
1. Cultural Resources
NEPA requires agencies to analyze impacts to cultural resources. 40 C.F.R.
ASSASS 1502.16(g), 1508.8. Plaintiffs argue that Keystone poses risks of direct damage
to cultural resources within the Project area. (Doc. 146 at 36.) Plaintiffs contend
that the social, cultural, and health impacts run the length of Keystone, and that
over 1,000 acres remain unsurveyed for potential cultural resources. Id.
The record reflects that the Department entered into an agreement with other
federal agencies and state historic preservation officers. DOSKXLDMT000655354. This agreement governs identification of historic properties and consultation
regarding potential adverse impacts. Id. The Department also consulted with Indian
tribes, federal agencies, and local governments regarding cultural resources. Id.
The 2014 SEIS identified 397 cultural resources that may be affected by the
Project. Id. at 6521. The 2014 SEIS states, however, that a[a]s of December 2013,
approximately 1,038 acres remained unsurveyed and are the subject of ongoing
field studies.a Id. at 6522. The Department offered no supplemental information on
the unsurveyed acres before it issued the 2017 permit. The Department describes
the surveys as aongoing.a (Doc. 173 at 68.) The Department contends, therefore,
that it will work to identify cultural resources and mitigate harm to them
throughout the process. This explanation proves outdated.
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Neither party has provided information regarding whether the Department,
any other federal agency, state historic officer, or local government surveyed the
remaining 1,038 acres between 2014 and 2017. The 2014 SEIS fails to provide a
afull and fair discussion of the potential effects of the project to cultural resourcesa
in the absence of further information on the 1,038 unsurveyed acres. See Native
Ecosystems Council v. U.S. Forest Serv., an Agency of U.S. Dept. of Agric., 418
F.3d 953, 965 (9th Cir. 2005). aNEPA ensures that [agencies] will not act on
incomplete information, only to regret its decision after it is too late to correct.a
Marsh, 490 U.S. at 371. The Department appears to have jumped the gun when it
issued the ROD in 2017 and acted on incomplete information regarding potential
cultural resources along the 1,038 acres of unsurveyed route. The Department must
supplement the information on the unsurveyed acres to the 2014 SEISas cultural
resources analysis, in order to comply with its obligations under NEPA. See 40
C.F.R. ASSASS 1502.16(g), 1508.8.
Plaintiffs next argue that Defendants failed to respond adequately to public
comments that it received on the Draft 2014 SEIS. (Doc. 146 at 44.) NEPA
requires a federal agency to solicit public comments on draft environmental impact
statements and consider comments both individually and collectively. 40 C.F.R. ASS
1504(a). The affected agency possesses the following options to respond to those
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comments: modifying alternatives; developing and evaluating alternatives not
previously given serious consideration; supplementing, improving, or modifying
its analyses; making factual corrections; or, explaining why the comments do not
warrant further agency response. 40 C.F.R. ASS 1504(a)(1)-(5). The degree that the
comments bear aon the environmental effects of the proposed actiona shapes the
scope of an agencyas responsibility to respond to comments. Block, 690 F.2d at
The 2014 SEIS adequately addressed the comments. The 2014 SEIS first
organized comments into themes based on subject matter. The 2014 SEIS
dedicated a significant portion to responding to the categories and opposing
viewpoints. DOSKXLDMT0007723. The Department was under no duty to set
forth full length views of its disagreements. See Block, 690 F.2d at 773. The
Department did not violate NEPA in its comments analysis.
3. Oil Spills
Plaintiffs next allege that the Department failed to consider new information
regarding oil spills. Plaintiffs contend that numerous oil pipeline spills have
occurred since the 2014 SEIS. (Doc. 140 at 39.) Plaintiffs argue that these new
spills indicate a higher likelihood of spills from Keystone than the Department had
anticipated in 2014. Id. Plaintiffs also argue that new studies showing a greater
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difficulty in cleaning up spills warrant a supplement. Id. at 40. Defendants note
that the 2014 SEIS discussed twelve leaks from Keystone I that occurred in its first
year of operation. (Doc. 173 at 78.) Defendants further contend that the mitigation
measures provided in the 2014 SEIS adequately address any concern raised by the
new studies. (Doc. 171 at 81.)
The 2014 SEIS predicts no more than 1.1 spills from Keystone every ten
years. DOSKXLDMT0012067-68. The 2014 SEIS relies on Pipeline and
Hazardous Material Safety Administration (aPHMSAa) data from 2002 to 2012 to
reach its conclusions. Id. at 11317-19. During this period, PHMSAas data indicated
that there were 1,692 spill or leak incidents nationwide. Id. at 11319. Plaintiffs cite
eight major spills that have occurred between 2014 and 2017, including a major
spill on Keystone I. Id. at 1239. Plaintiffs argue that the Department should have
considered this more recent information in its 2017 permitting decision. (Doc. 140
at 39.) Plaintiffs argue further that the Department failed to analyze a new study
regarding the difficulty of cleaning up tar sands crude oil spills. (Doc. 140 at 40.)
The ROD acknowledges that aseveral new studies related to cleanup of
diluted bitumen have been published.a DOSKXLDMT0002506. The ROD cites a
study by the National Academy of Sciences (aNASa) that Plaintiffs argue should
have been evaluated in the 2014 SEIS. (Doc. 140 at 40.) NAS conducted the study
at the direction of Congress. Specifically, Congress asked NAS to address
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awhether the transport of diluted bitumen in pipelines has potential environmental
consequences that are sufficiently different from those of commonly transported
crude oils to warrant changes in regulations governing spill response planning,
preparedness, and cleanup.a Id. at 1379. The study found that diluted bitumen
presents more challenges for cleanup response than other types of oil moved by
pipeline. Id. at 1391. The study also determined that responders need more training
and better communication to address these spills adequately. Id.
The major spills that occurred between 2014 and 2017 qualify as significant.
The Department would have evaluated the spills in the 2014 SEIS had the
information been available. Further, the risk of spills likely would affect
Keystoneas potential impact on other areas of the RODas analysis, including risks
to water and wildlife. These new spills and the information provided by them
warrant an update.
The ROD similarly fails to show how the 2014 SEIS adequately addressed
the NAS study regarding tar sands oil. The ROD merely asserts that Keystone has
agreed to consult with local emergency responders and update its mitigation
response plans as new information becomes available. This conclusory statement
fails to meet NEPAas ahard looka requirement. The absence of this information
from the 2014 SEISas mitigation measures demonstrates that the agency acted
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upon incomplete information in setting forth its mitigation measures. Marsh, 490
U.S. at 371. The Department must supplement this information.
Plaintiffs also argue that the Department failed to analyze sufficiently
potential impacts of Keystoneas spills and leaks to water resources. The Courtas
determination that the Department must supplement information regarding spills
allows the Department to address how the updated information on spills will
impact water resources.
F. The Departmentas Change in Course Between 2015 and 2017
An agency must provide a detailed justification for reversing course and
adopting a policy that arests upon factual findings that contradict those which
underlay its prior policy.a FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515
(2009). Agency action qualifies as aarbitrary and capricious if the agency has . . .
offered an explanation for its decision that runs counter to the evidence before the
agency, or is so implausible that it could not be ascribed to a difference in view or
the product of agency expertise.a Org. Vill. of Kake v. U.S. Dept. of Agric., 795
F.3d 956, 966 (9th Cir. 2015) (quoting Motor Vehicle Mfrs. Assan of the U.S., Inc.
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).
1. Compliance with the APA standard for a policy change
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The United States Supreme Court established a four part test in Fox to
determine whether a policy change complies with the APA: (1) the agency displays
aawareness that it is changing position;a (2) the agency shows that athe new policy
is permissible under the statute;a (3) the agency abelievesa the new policy is better;
and (4) the agency provides agood reasonsa for the new policy. Fox, 556 U.S. at
515-16; See also Kake, 795 F.3d at 966. The new policy must include aa reasoned
explanation . . . for disregarding facts and circumstances that underlay or were
engendered by the prior policy,a if the new policy rests upon factual findings that
contradict those underlying its prior policy. Id.
The Ninth Circuit examined in Kake whether the United States Department
of Agriculture (aUSDAa) properly reversed course after having declined to exempt
the Tongass National Forest in Alaska from the aRoadless Rulea in a 2001 ROD.
Kake, 795 F.3d at 967. In 2003, a[on] precisely the same record,a USDA
concluded that the asocial and economic hardship to Southeast Alaska
outweigh[ed] the potential long-term ecological benefits of the Roadless Rulea Id.
(citing 68 Fed. Reg. 75,136, 75,141 (Dec. 30, 2003) (internal citations omitted)).
The Ninth Circuit determined that the USDA had satisfied the first three elements
of Fox: (1) USDA was aware it was changing course; (2) USDA determined that
the new policy was permissible under the statutes; and (3) USDA believed the new
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policy was better. Kake, 795 F.3d at 967. USDA failed on the fourth element,
however, when it provided no agood reasona for adopting the new policy. Id.
Here, as in Kake, the central issue involves whether the 2017 ROD rests on
factual findings that contradict those in the 2015 ROD. And if the 2017 RODas
factual findings contradict the 2015 ROD, the Court must analyze whether the
2017 ROD contains a areasoned explanation.a Id. at 967.
2. The Departmentas Conclusions on Climate Change
The Department denied the permit in its 2015 ROD. The Department relied
heavily on the United Statesas role in climate leadership. DOSKXLDMT0001188.
The Department issued a new ROD in 2017. The new ROD noted that athere have
been numerous developments related to global action to address climate change,
including announcements by many countries of their plans to do soa since the 2015
ROD. Id. at 2518. Moreover, the new ROD suggested that aa decision to approve
[the] proposed Project would support U.S. priorities relating to energy security,
economic development, and infrastructure.a Id. The Department argues that this
about-face constitutes a mere policy shift, and that on its own, cannot be found
arbitrary and capricious. (Doc. 173 at 88.)
The Department possesses the authority to give more weight to energy
security in 2017 than it had in 2015. See Kake, 795 F.3d at 968. Kake and State
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Farm make clear, however, that aeven when reversing a policy after an election, an
agency may not simply discard prior factual findings without a reasoned
explanation.a Id. The Department did not merely make a policy shift in its stance
on the United Statesas role on climate change. It simultaneously ignored the 2015
RODas Section 6.3 titled aClimate Change-Related Foreign Policy
Section 6.3 of the 2015 ROD determined that the United Statesas climate
change leadership provided a significant basis for denying the permit. The
Department acknowledged science supporting a need to keep global temperature
below two degrees Celsius above pre-industrial levels Id. at 1182-83. The
Department further recognized the scientific evidence that human activity
represents a dominant cause of climate change. Id. The Department cited transboundary impacts including storm surges and intense droughts. Id. And finally, the
Department accepted the United Statesas impact as the worldas largest economy
and second-largest greenhouse gas emitter. Id.
The 2017 ROD initially tracked the 2015 ROD nearly word-for-word. The
2017 ROD, without explanation or acknowledgment, omitted entirely a parallel
section discussing aClimate Change-Related Foreign Policy Considerations.a The
2017 ROD ignores the 2015 RODas conclusion that 2015 represented a critical
time for action on climate change. The 2017 ROD avoids this conclusion with a
Case 4:17-cv-00029-BMM Document 218 Filed 11/08/18 Page 35 of 54
single paragraph. The 2017 ROD simply states that since 2015, there have been
anumerous developments related to global action to address climate change,
including announcements by many countries of their plans to do so.a Id. at 2518.
Once again, this conclusory statement falls short of a factually based
determination, let alone a reasoned explanation, for the course reversal. aAn
agency cannot simply disregard contrary or inconvenient factual determinations
that it made in the past, any more than it can ignore inconvenient facts when it
writes on a blank slate.a Fox, 556 U.S. at 573.
The Departmentas 2017 conclusory analysis that climate-related impacts
from Keystone subsequently would prove inconsequential and its corresponding
reliance on this conclusion as a centerpiece of its policy change required the
Department to provide a areasoned explanation.a See Kake, 795 F.3d 968. The
Department instead simply discarded prior factual findings related to climate
change to support its course reversal.
II. Did the Department and FWS Violate the ESA and APA in Approving
A. The ESA
Section 7(a)(2) requires agencies, in consultation with the expert wildlife
agency (here, the U.S. Fish and Wildlife Service (aFWSa)), to ensure athat any
action authorized, funded, or carried out by [an] agency . . . is not likely to
Case 4:17-cv-00029-BMM Document 218 Filed 11/08/18 Page 36 of 54
jeopardize the continued existence of any endangered species or threatened species
or result in the destruction or adverse modification of habitat[.]a 16 U.S.C. ASS
1536(a)(2), (4). To ajeopardizea means to areduce appreciably the likelihood of
both the survival and recovery of a listed species in the wild by reducing the
reproduction, numbers, or distribution of that species.a 50 C.F.R. ASS 402.02.
The agencies must initiate formal consultation if the actions may adversely
affect listed species. 50 C.F.R. ASS 402.14. Formal consultation requires a detailed
inquiry known as a Biological Opinion (aBiOpa). Id. The BiOp analyzes whether
the action likely would cause jeopardy to listed species. 16 U.S.C. ASS 1536(b)(3)(A).
The agencies must use athe best scientific and commercial data availablea to reach
their conclusions. 16 U.S.C. ASS 1533(b)(1)(A). The best available data requirement
prohibits an agency from adisregarding available scientific evidence that is in some
way better than the evidence [it] relies on.a Kern Cnty. Farm Bureau v. Allen, 450
F.3d 1072, 1080 (9th Cir. 2006) (quoting Sw. Ctr. For Biological Diversity v.
Babbit, 215 F.3d 58, 60 (D.C. Cir. 2000)). FWS acannot ignore available
biological information.a Id. (quoting Conner v. Burford, 848 F.3d 1441, 1454 (9th
B. Factual Background
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The Department entered into formal consultation in 2012 with FWS under
ESA Section 7. The Department issued its Biological Assessment (aBAa) in
December of 2012. The Department identified thirteen federally listed threatened
or endangered species in the proposed Project area. DOSKXLDMT0002510. The
FWS issued a BiOp to the Department in May 2013 regarding seven of the thirteen
species. Id. The species discussed included the American burying beetle,
endangered black-footed ferret, interior least tern, whooping crane, pallid sturgeon,
piping plover, and western prairie fringed orchid. Id.
Since 2013, FWS has listed as threatened the northern long-eared bat and the
rufa red knot. FWS identified the American burying beetle as the only listed
species likely to be affected adversely by Keystone after it was proposed again in
2017. Id. FWS issued a concurrence to the 2013 BiOp. FWS concluded that
consultation did not need to be reinitiated. Id. The Nebraska PSC approved the
Mainline Alternative Route (aMARa) in Nebraska, however, on November 20,
2017. Accordingly, the Department reopened consultation with FWS on January
31, 2018, regarding the MAR. (Doc. 179 at
Plaintiffs argue that the Department violated the ESA and APA when it
approved Keystone. Plaintiffs allege that the Department failed to use the best
available science to assess harm to whooping cranes, interior least terns, and piping
plovers. Plaintiffs allege that the Department failed to address oil spills and
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extraterritorial impacts. Plaintiffs allege finally that the Department failed to
analyze reasonably impacts to the black-footed ferret, rufa red knot, northern longeared bat, and western prairie fringed orchid.
C. Whooping Crane
The whooping crane is a migrating bird that occurs only in North America.
FWS000000000663. FWS listed the whooping crane as endangered on March 11,
1967. FWS estimated the total wild population in 2006 to be 338 birds. Id. Studies
show that the whooping crane population must reach at least 1,000 individuals to
be genetically viable. Id.
The whooping crane migrates throughout much of Keystoneas proposed
area. Id. The BA identifies power lines associated with Keystone as collision
hazards to whooping cranes. Id. at 670. The BA determined, however, that
Keystoneas commitment to follow recommended conservation measures would
avoid and minimize disturbance of migrating whooping cranes. Id. at 674. The BA
ultimately concluded that the Project was not likely to adversely affect the
whooping crane. Id.
Plaintiffs argue that FWSas consideration of the impacts on the whooping
crane failed to satisfy the abest available sciencea standard of ESA Section 7.
Plaintiffs argue that neither the BA, nor FWSas concurrence analyzed the best
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available science, including telemetry data. Id. at 56. Defendants argue that the
telemetry data does not impact the adequacy of the agenciesa conclusions. (Doc.
173 at 92.)
1. The Telemetry Data Does Not Undermine the Agenciesa
The Department relied on historical sightings data to make its
determinations regarding the whooping crane. Historical sightings data includes
over fifty years of observations compiled by FWS regarding whooping crane
migration. (Doc. 153-1 at 31.) This data shows the boundaries of the whooping
crane migration corridor and recurring stop-over locations. Both parties agree that
historical sightings data represents the best available science. Id. The parties
disagree, however, as to whether use of telemetry data would alter the
Departmentas analysis. Plaintiffs argue that the 2014 SEIS underestimated the risk
of collisions with power lines without the use of telemetry data. (Doc. 140 at 59.)
The United States Geological Survey (aUSGSa) maintains telemetry data
through the Whooping Crane Tracking Partnershipas (aWCTPa) Telemetry Project.
(Doc. 118 at 7.) The Telemetry Project collects telemetry data from radio-tagged
cranes. Id. The WCTP captures whooping cranes and attaches a transmitter to their
leg. This transmission sends a signal received by satellite in a frequency of every
six hours. Id. The telemetry data comes from 20% of the whooping crane
Case 4:17-cv-00029-BMM Document 218 Filed 11/08/18 Page 40 of 54
population that was radio-tagged. Id. at 8. The Telemetry Project seeks to
document whooping crane movement within their migratory corridor and to gather
behavioral data. Id.
Defendantsa expert asserts that the use of telemetry data has numerous
limitations and flaws. Defendantsa expert states, for example, that the WCTP
collected telemetry data over a short span of time (2010-2014), whereas the
historic sightings date back as far as the 1950s. (Doc. 128-4 at 18.) Defendantsa
expert also opines that the telemetry data points may represent the same individual
bird traveling within a small area on one stopover. Id. Further, telemetry data does
not account for altitude, so it may not distinguish between birds flying at lower
altitudes in migration, or at elevations where altitude was inconclusive. Id.
Importantly, Plaintiffsa expert does not explain how the telemetry data
undermines the historical sightings data used by the Department. Plaintiffsa expert
instead aobserved that several of the historical [FWS] sightings . . . were at the
same locations as recent telemetry data records. In fact the telemetry data only
identified a few locations . . . that were not identified using the historical data.a
(Doc. 118 at 16.) Plaintiffsa expert concludes that the telemetry data confirms site
fidelity observed in historical sighting data. Id. at 16.
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aThe determination of what constitutes the best scientific data available
belongs to the agencyas special expertise.a San Luis & Delta-Mendota Water Auth.
v. Jewell, 747 F.3d 581, 602 (9th Cir. 2014) (internal quotations omitted).
Accordingly, an agency possesses discretion to determine the best available
science. Further, both partiesa experts conclude that telemetry data confirms, rather
than undermines sightings data. At best, the telemetry data provides additional
information regarding how recent specific areas are used by whooping cranes.
(Doc. 118 at 15.) Plaintiffs fail to show how this information would change the
agenciesa analysis. The agenciesa failure to consider the telemetry data in their
analysis does not provide a sufficient basis to conclude that the agencies acted
arbitrarily and capriciously.
2. The Conservation Measures Are Reasonable
Plaintiffs also argue that the conservation measures set forth in the BA are
insufficient. (Doc. 140 at 64-65.) Plaintiffs question the ability of FWS to
implement the measures, and their effectiveness. Id. The conservation measures,
however, include avoiding designated critical habitat, applying a five-mile buffer
to high-use areas, and burying power lines within one mile of suitable migration
habitat. FWS000000000674. Conservation measures also include marking new
lines and installing bird flight diverters. Id. Site-specific consultations with electric
utilities are also required to minimize impacts to whooping cranes. Id. at 769.
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These measures were adequately evaluated and explained by FWS. Plaintiffs have
not provided a sufficient basis for the Court to divert from the expertise FWS
possesses to recommend and implement conservation measures. See Jewell, 747
F.3d at 602.
D. Interior Least Tern and Piping Plover
Plaintiffs argue that FWS failed to analyze adequately impacts to
endangered interior least terns and threatened piping plovers from increased raptor
predation attributable to the Project. (Doc. 140 at 70.) The BA concludes that
power line routes associated with Keystone likely would attract raptors.
FWS000000000660. The BA proposes the use of perch deterrents to be installed in
coordination with FWS. Id. at 2069-70. The BA determines that a[p]rotection
measures could be implemented by electrical service providers to minimize raptor
perching in accordance with the Avian Power Line Interaction Committee
(aAPLICa), Suggested Practices for Avian Protection on Power Lines (APLIC
1996).a Id. at 654. Plaintiffs argue that a 2006 edition of the APLIC contradicted
BAas conclusion. The 2006 edition recognizes that perch discouragers intend ato
move birds from an unsafe location to a safe location and do not prevent perching.a
(Doc. 143-1 at 36.) The 2006 APLIC further determines that the use of perch
deterrents is not recommended to prevent predation. Id.
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The raptor predation protection measures that reference the 1996 guidance
address dangers to black-footed ferrets, rather than dangers to terns or plovers.
FWS000000000654. The use of this guidance would not apply to Plaintiffsa
arguments regarding terns and plovers. The 2006 guidance does not disavow the
use of perch deterrents. (Doc. 143-1 at 17.) The guidance simply cautions that
perch deterrents do not prevent perching, but are intended to manage where birds
perch. Id. In the end, the guidance suggests that electric utilities and agencies work
together to identify predation risk to sensitive species. Id. Finally, the BA discusses
other conservation measures, including pre-construction surveys and rerouting of
power lines. These steps and other measures should be coordinated with FWS.
FWS000000000719. These proposed conservation measures prove reasonable
under the circumstances.
E. Oil Spills
Plaintiffs next argue that the Department and FWS failed to consider
properly the potential impacts of pipeline spills on listed species. (Doc. 146 at 52.)
Plaintiffs argue that the agencies failed to account for potential spill risk to listed
species other than the American burying beetle. Id. at 55. The Department must
supplement new and relevant information regarding the risk of spills. The 2014
SEIS, the BA, and the BiOp relied on outdated information regarding potential oil
spills and the agencies must account for the supplemental information. The
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Department and FWS must use the abest scientific and commercial data availablea
in all respects, including the effects of potential oil spills on endangered species. 16
U.S.C. ASS 1536(a)(2). Section 7 requires consultation with FWS to ensure the
proposed action is anot likely to jeopardize the continued existence of any
endangered species . . . a 16 U.S.C. ASS 1536(a)(2). The Department must consider
the new information regarding oil spills in the 2014 SEIS with respect to potential
effects on listed species. The Department must also coordinate with FWS in
making its determination.
F. Extraterritorial Impacts
Plaintiffs argue that the Department failed to initiate consultation with
regard to listed species, including potential impacts to Whooping Cranes in
Canada. (Doc. 146 at 56.) The aaction areaa determines the geographic scope of
ESA consultation. The ESA defines the aaction areaa as aall areas to be affected
directly or indirectly by the Federal action and not merely the immediate area
involved in the action.a 50 C.F.R. ASS 402.02. The determination of an action area
requires an agency to apply scientific methodology. Native Ecosystems Council v.
Dombeck, 304 F.3d 886, 902 (9th Cir. 2002).
The action area as defined by FWS stretches from the border of the United
States with Canada to Steele City, Nebraska. FWS000000002085. Plaintiffs
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contend that consultation should have occurred along the entire Project, including
within Alberta, Canada. Plaintiffs provide no authority that directs the ESAas
application outside of the United States. Plaintiffs instead cite the ESAas statutory
language requiring agencies to consider direct and indirect impacts to species in
aall areas to be affected.a 50 C.F.R. ASS 402.02.
No evidence in the record indicates that Congress intended agencies to
engage in ESA consultation related to permitting decisions made in another
country. To the contrary, the ESA limits required consultation to aaffected States.a
16 U.S.C. ASS 1536(a)(2). Absent contrary intent, legislation of Congress applies
only within the territorial jurisdiction of the United States. Morrison v. Natl.
Australia Bank Ltd., 561 U.S. 247, 255 (2010). Plaintiffs have failed to indicate
any contrary intent that the statutory language of Section 7 should apply outside of
the United States.
The Court notes that the government of Canada separately requires
environmental review of Keystoneas impacts. CNEB conducted an environmental
review of Keystoneas Alberta, Canada section that includes evaluation of listed
species, mitigation plans, and protections. This evaluation includes impacts to the
endangered whooping crane. The Court finds no support in the record to apply
Section 7 in Canada. The Court will defer to the government of Canadaas
environmental review of Keystoneas impacts within its own jurisdiction.
Case 4:17-cv-00029-BMM Document 218 Filed 11/08/18 Page 46 of 54
G. Remainder of Species
Plaintiffs argue that the Department and FWS failed to analyze impacts to
the black-footed ferret, rufa red knot, northern long-eared bat, and western prairie
fringed orchid. (Doc. 146 at 51-63.) The Court will analyze each species in turn.
1. Black-Footed Ferret
Plaintiffs assert that the agencies inadequately analyzed impacts to the
black-footed ferret. (Doc. 146 at 57-58.) The parties do not dispute that the
proposed Project would pass through no known black-footed ferret habitat.
Plaintiffsa argument instead relies on Keystoneas crossing of prairie dog towns, as
prairie dogs represent a potential ferret population recovery habitat. (Doc. 146 at
FWS determined that no wild populations of black-footed ferrets exist along
the proposed route of the Project. FWS000000000651. The primary species
population have been captured and provide the basis for an ongoing breeding
program operated by FWS. Id. Several reintroduced populations occur outside of
the Project area in Montana, South Dakota, and Kansas. Id. at 652.
The black-footed ferret depends on prairie dogs, both for food and habitat.
Id. As a result, the FWS surveyed the proposed route in Montana, South Dakota,
and Nebraska, for prairie dog towns as potential black-footed ferret habitat. Id. The
Case 4:17-cv-00029-BMM Document 218 Filed 11/08/18 Page 47 of 54
survey identified no impacts in Montana. Id. at 653. The survey identified eight
prairie dog towns found along the proposed route in South Dakota and Nebraska.
Id. FWS recommended no mitigation measures or additional consultation under the
ESA as the black-footed ferrets associated with these towns have been designated
as non-essential experimental populations. Id.
Potential Project impact to prairie dog towns requires no mitigation or
additional consultation regarding black-footed ferrets. FWS releases experimental
populations at its discretion. FWS must determine whether the population ais
essential to the continued existence of an endangered or a threatened species.a 16
U.S.C. ASS 1539(j)(2)(B). FWSas determination that the experimental black-footed
ferret populations are not essential to the continued existence of the species allows
FWS to treat these populations as a species proposed to be listed. 16 U.S.C. ASS
2539(j)(2)(C)(i). Section 7 requires consultation for listed species only when an
action likely would jeopardize that listed species. 16 U.S.C. ASS 1536(a)(2), (4). FWS
correctly determined that no consultation and mitigation were required for the nonessential experimental black-footed ferret populations potentially associated with
the prairie dog towns. FWS000000000653.
2. Rufa Red Knot & Northern Long-Eared Bat
Case 4:17-cv-00029-BMM Document 218 Filed 11/08/18 Page 48 of 54
Plaintiffs next argue that the Department failed to analyze impacts to the
rufa red knot and the northern long-eared bat. (Doc. 146 at 59-60.) FWS listed the
rufa red knot in December of 2014 and the northern long-eared bat in April of
2015. The 2012 BA, the 2013 BiOp, and the 2014 SEIS did not discuss these yetto-be listed species. The Department reinitiated consultation in July 2015,
however, regarding the rufa red knot, and in 2017 regarding the northern longeared bat. The Department has satisfied Section 7as consultation requirements
through this re-initiation of consultation for recently listed species.
Plaintiffs provide no additional data or studies upon which the Department
should have relied to reach its conclusion that the Project is anot likely to adversely
affecta the rufa red knot. Plaintiffs also argue that the Departmentas analysis of
potential threats to the northern long-eared bat proved inadequate because the
Department failed to identify conservation measures associated with construction
impacts. Id. at 60. The listing decision determined, however, that no habitation
limitations constrain the northern long-eared bat. 81 Fed. Reg. 1,900, 1,903 (Jan.
14, 2016). Moreover, development actions have shown no negative impacts to
northern long-eared bat populations. Id.
FWSas listing decision focused primarily on white-nose syndrome (aWNSa)
as the main threat to the northern long-eared bat. Id. at 1901. FWS identifies WNS
within zones. FWS maps evidence of WNS within a county as a positive detection
Case 4:17-cv-00029-BMM Document 218 Filed 11/08/18 Page 49 of 54
for the entire county. Id. at 1902. FWS adds a 150-mile buffer to the county line as
part of the zone. Id.
The Departmentas 2017 consultation determined that portions of the
proposed Project encompassed WNS zones. FWS0000000002742. The Department
identified two conservation measures to address WNS in its 2017 BA. Id. at 2742.
The first measure includes a commitment by TransCanada to refrain from
removing any trees within 0.25-mile buffer around known WNS zones. Id. The
second measure requires TransCanada to avoid cutting or destroying any other
trees within a 150-foot radius of known maternity roost trees. Id. at 2742-43. The
Court finds no error in these proposed conservation measures or FWSas
concurrence that the Project is anot likely to adversely affecta the bat. Id. at 2749.
3. Western Prairie Fringed Orchid
Plaintiffs argue that the Department failed to provide adequate conservation
measures to the western prairie fringed orchid. (Doc. 146 at 60.) Plaintiffs argue
that the conservation measures rely solely on efforts by TransCanadaas employees
to avoid the plant. Id. at 61. Plaintiffs further allege that these proposed measures
fail to address the risk of invasive species and herbicide use. Id. The 2014 SEIS
conservation measures propose a complete habitat suitability survey before
construction. FWS00000002065. Plaintiffs have presented no proposed method of
Case 4:17-cv-00029-BMM Document 218 Filed 11/08/18 Page 50 of 54
conservation superior to a complete survey that could detect the plant early in its
growth cycle. The conservation measures also adequately address the risk of
invasive species. TransCanada has developed a weed and vegetation monitoring
plan to prevent the spread of invasive species. DOSKXLDMT0001020-21. The
conservation measures further require habitat restoration and revegetation.
FWS000000002066. The Departmentas anot likely to adversely affecta conclusion
regarding the orchid proves reasonable under the circumstances.
CONCLUSION AND REMEDIES
Plaintiffs have asked the Court to issue an injunction that would require the
Department to comply fully with NEPA, the ESA, and the APA. Plaintiffs have
asked the Court to enjoin and set aside the Departmentas cross-border permit and
ROD. Plaintiffs also have requested an injunction to set aside the BA, BiOp and
FWS concurrence. Finally, Plaintiffs have requested that the Court prohibit activity
in furtherance of construction or operation of Keystone and associated facilities.
An agency action is deemed invalid when not promulgated in compliance
with the APA. Kake, 795 F.3d at 970. Upon remand, a court should provide the
agency with specific instructions to address its errors. Alliance for the Wild Rockies
v. Zinke, 265 F.Supp.3d 1161, 1181 (D. Mont. 2017). The Court provides the
Case 4:17-cv-00029-BMM Document 218 Filed 11/08/18 Page 51 of 54
Claim 1: The Departmentas apurpose and needa statement in the 2014 SEIS
did not violate NEPA. The Departmentas range of alternatives analyzed in the 2014
SEIS did not violate NEPA. 40 C.F.R. ASSASS 1502.1, 1502.13, 1502.14. Further, the
Department did not violate NEPA when it set forth its no-action alternative in the
2014 SEIS. Similarly, the Department did not violate NEPA in its analysis of
transportation of crude oil by rail in the 2014 SEIS. The Departmentas response to
public comments on the draft 2014 SEIS comported with its obligations under
NEPA. And finally, the Departmentas incorporation of the CNEBas analysis of
impacts in Canada satisfied NEPA.
The Departmentas analysis of the following issues fell short of a ahard looka
and requires a supplement to the 2014 SEIS in order to comply with its obligations
The effects of current oil prices on the viability of Keystone
(Section I (C)(2)(a));
The cumulative effects of greenhouse gas emissions from the
Alberta Clipper expansion and Keystone (Section I (C)(2)(c));
A survey of potential cultural resources contained in the 1,038
acres not addressed in the 2014 SEIS (Section I (E)(1)); and
An updated modeling of potential oil spills and recommended
mitigation measures (Section I (E)(3)).
Case 4:17-cv-00029-BMM Document 218 Filed 11/08/18 Page 52 of 54
These omissions require a remand with instructions to the Department to satisfy its
obligations under NEPA to take a ahard looka at the issues through a supplement
to the 2014 SEIS.
Claim 2: Plaintiffsa second group of claims relate to the need for
TransCanada to obtain a right of way across BLM-owned land. The partiesa current
motions for summary judgment do not address these claims. The Court defers
ruling on these claims until the parties have submitted motions and supporting
Claim 3: NEPA and the APA require a detailed justification for reversing
course and adopting a policy that arests upon factual findings that contradict those
which underlay its prior policy.a Fox, 556 U.S. at 515. The Department must give
aa reasoned explanation for disregarding facts and circumstances that underlay or
were engendered by the prior policy.a Kake, 795 F.3d at 996. The Court previously
determined in its Order denying Defendantsa Motion to Dismiss (Doc. 99) that it
possessed jurisdiction to review the ROD as a final agency action under NEPA and
the APA. Id. at 8-9. The Department failed to comply with NEPA and the APA
when it disregarded prior factual findings related to climate change and reversed
course. The Court vacates the 2017 ROD and remands with instructions to provide
a reasoned explanation for the 2017 RODas change in course. Kake, 795 F.3d at
Case 4:17-cv-00029-BMM Document 218 Filed 11/08/18 Page 53 of 54
Claims 4 and 5: Section 7(a)(2) of the ESA requires that an agency ensure its
actions are not likely to jeopardize the continued existence of endangered or
threatened species, and are not likely to destroy or adversely modify critical
habitat. 16 U.S.C. ASS 1536(a)(2). The agency must rely on the best available science
and commercial data available in reaching its conclusions. 16 U.S.C. ASS
1533(b)(1)(A). The Department did not violate the ESA when it did not use the
telemetry data to assess potential harm to whooping cranes. The Department did
not violate the ESA when it put forth mitigation measures related to the western
prairie fringed orchid. The Department did not violate the ESA in its analysis of
the black-footed ferret, the rufa red knot, the northern long-eared bat or terns and
plovers. Further, the Department did not violate the ESA when it did not apply
Section 7 in Canada.
The Departmentas 2012 BA, and FWSas 2013 BiOp and concurrence shall
be set aside and remanded to the Department with instructions to consider potential
adverse impacts to endangered species from oil spills associated with Keystone in
light of the updated data on oil spills and leaks. The Court declines at this time to
require the Department to re-initiate formal consultation with FWS pending the
outcome of FWSas updated analysis of the oil spill data.
Case 4:17-cv-00029-BMM Document 218 Filed 11/08/18 Page 54 of 54
Plaintiffsa Motions for Summary Judgment (Docs. 139 & 145) are
GRANTED IN PART and DENIED IN PART in accordance with the above
Defendantsa CrossaMotions for Summary Judgment (Docs. 170 & 172) are
GRANTED IN PART and DENIED IN PART;
It is further ordered that the Departmentas ROD issued on March 23, 2017, is
Plaintiffsa request for injunctive relief is GRANTED. The Court enjoins
Federal Defendants and TransCanada from engaging in any activity in furtherance
of the construction or operation of Keystone and associated facilities until the
Department has completed a supplement to the 2014 SEIS that complies with the
requirements of NEPA and the APA.
This matter is REMANDED to the Department for further consideration
consistent with this order.
DATED this 8th day of November, 2018.