Charles Langston:Keystone XL Pipeline Ruling: Trump Administration Must Release Documents

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A federal judge in Montana has ordered the Trump administration to release documents it relied on to approve construction of the Keystone XL pipeline last year, a development that pipeline opponents believe could stymie the controversial project.

Last March, the State Department approved construction of the nearly 1,200-mile pipeline, which would carry crude oil from the tar sands region of Alberta, Canada, to Nebraska and ultimately to refineries on the Gulf Coast. The approval reversed a 2015 decision by the Obama administration, which had blocked the project by refusing to issue a permit for the pipeline to cross the Canadian border.

Environmental groups sued the Trump administration, saying its reversal broke three laws and that it failed to conduct additional, updated environmental reviews before granting approval.

As the lawsuit progressed, the government released only some documents, prompting environmentalists to push for a more complete record—or an explanation of why other  documents were being withheld. In January, the plaintiffs told the court that the government “wrongly omitted an unknown number of emails and other internal communications.”

“The government provided a cherry-picked record,” said Jackie Prange, an attorney for the Natural Resources Defense Council, one of the plaintiffs in the case. “We were asking the government to produce all the documents, or if it wasn’t going to, say which ones and why. Our concern is that there’s a black box here, and the public deserves to know what evidence the Trump administration relied on to approve the pipeline.”

Under the law, the government can withhold certain documents that are deemed “deliberative,” but it has to provide a “privilege log” that explains why they were withheld from the record.

The Trump administration now has until March 21 to release the documents or the privilege log.

Government attorneys had argued it could take years and more than $6 million to review to documents before releasing them, noting that the record contained at least 4.5 million documents. They called the environmental groups’ request a “fishing expedition.” Prange said the government’s estimates were “vastly overblown.”

The Problem of Out-of-Date Documents

A few days after President Donald Trump took office, he issued an executive order to give the pipeline a green light. The project’s developer, TransCanada, renewed its permit request six days after Trump’s inauguration, on Jan. 26, 2017. The State Department granted the permit in March, and TransCanada has said it could begin construction in 2019.

Environmental groups contend that the Trump administration based its decision on old environmental reviews.

“A lot of things that the State Department had relied on had been proven wrong or were out of date,” Prange said. “The Trump administration relied on the same documents that had been prepared in 2014, that the Obama administration looked at and did not approve. They relied on the same problematic documents.”

Among other things, a drop in the price of oil and a surge in domestic production undermined the economic analysis of the old environmental impact statement.

A hearing on the merits of the case—on the environmental groups’ primary contentions that the Trump administration acted illegally—is scheduled for May.

“This decision gives us one more reason to believe this pipeline will never be built,” May Boeve, executive director of the environmental advocacy group 350.org, said in an statement. “The Trump administration’s approval of the Keystone XL pipeline has been nothing but smoke and mirrors.”

A Bid to Undermine Environmental Reviews

The administration, meanwhile, is attempting to make it more difficult for environmental groups to sue under the National Environmental Policy Act (NEPA), which requires environmental reviews of major federal actions.

Trump’s recently unveiled infrastructure plan calls for $200 billion in new spending on roads, bridges and other infrastructure over the next decade. A main objective of the plan is to shorten environmental reviews and permitting for proposed projects, as well as the timeframe for challenging permits in the courts. 

The plan would limit the NEPA review process to two years and would establish a 150-day statute of limitations for any legal challenge. The current timeframe for legal challenges is six years.

This week, the White House released “The Economic Report of the President,” which also stressed the administration’s desire to skim through the review process.

“For both fuel and power infrastructure, the demand for more transmission capacity in new regions has made issues related to gaining regulatory permission more salient,” the report said.

Environmental groups have said the infrastructure plan would gut the environmental reviews that are at the heart of bedrock environmental laws.

“This is a climate-wrecking fossil fuel infrastructure plan that fast-tracks pipelines at the expense of frontline communities and working people,” Boeve said after the proposal was released. “This flies in the face of everything we know about climate science.”