Opponents of the long-stalled Keystone XL oil pipeline asked a federal court Friday in a lawsuit to declare President Donald Trump acted illegally when he issued a new permit for the project in a bid to get around an earlier court ruling.
In November, U.S. District Judge Brian Morris ruled that the Trump administration did not fully consider potential oil spills and other impacts when it approved the pipeline in 2017.
Trump’s new permit, issued last week, is intended to circumvent that ruling and kick-start the proposal to ship crude oil from the tar sands of western Canada to U.S. refineries.
White House officials have said the presidential permit is immune from court review. But legal experts say that’s an open question, and the case could further test the limits of Trump’s use of presidential power to get his way.
Unlike previous orders from Trump involving immigration and other matters, his action on Keystone XL came after a court already had weighed in and blocked the administration’s plans.
“This is somewhat dumbfounding, the idea that a president would claim he can just say, ‘Never mind, I unilaterally call a do-over,“’ said William Buzbee, a constitutional scholar and professor at Georgetown University Law Center.
The pipeline proposed by Calgary-based TransCanada has become a flashpoint in the debate over fossil fuel use and climate change.
Opponents say burning crude from the tar sands of Western Canada would make climate change worse. The $8 billion project’s supporters say it would create thousands of jobs and could be operated safely.
The line would carry up to 830,000 barrels (35 million gallons) of crude daily along a 1,184-mile (1,900-kilometre) path from Canada to Nebraska.
Stephan Volker, an attorney for the environmental groups that filed Friday’s lawsuit, said Trump was trying to “evade the rule of law” with the new permit.
“We have confidence that the federal courts – long the protectors of our civil liberties – will once again rise to the challenge and enforce the Constitution and the laws of this land,” Volker said.
The White House said in a statement that under the new order, federal officials still would conduct environmental reviews of the project.
However, officials said those would be carried out by agencies other than the State Department, which under Morris’ November order would have been forced to conduct another extensive study that could have taken months to complete.
TransCanada spokesman Matthew John said the administration’s action “clearly demonstrates to the courts that the permit is (the) product of presidential decision-making and should not be subject to additional environmental review.”
Friday’s lawsuit was filed in Morris’ court, meaning he’s likely to get the first opportunity at addressing the legality of Trump’s new order. Judges typically do not respond favourably to perceived end runs around their decisions, said Carl Tobias with the University of Richmond law school.
Another legal expert, Kathryn Watts at the University of Washington, said it’s unclear where the case will lead. Trump’s permit wades into “uncharted, unsettled” legal territory, she said.
The pipeline’s route passes through the ancestral homelands of the Rosebud Sioux in central South Dakota and the Gros Ventre and Assiniboine Tribes in Montana.
Earlier this week, a court granted the tribes’ request to intervene in an appeal of Morris’ November ruling that was filed by TransCanada. That case is pending before the 9th U.S. Circuit Court of Appeals.
Tribal officials contend a spill from the line could damage a South Dakota water supply system that serves more than 51,000 people including on the Rosebud, Pine Ridge and Lower Brule Indian Reservations.
An existing TransCanada pipeline, also called Keystone, suffered a 2017 spill that released almost 10,000 barrels (407,000 gallons) of oil near Amherst, South Dakota.