In his first days as President, Donald Trump has issued several directives to expedite pipeline and energy infrastructure projects and bring pipe steel manufacturing jobs back to the U.S. Through an executive order, the President directed federal agencies to expedite environmental reviews and approvals for all infrastructure projects, with emphasis on “high priority” projects such as pipelines. In addition, the President issued two executive memoranda to renew and expedite the approval of two oil pipeline construction projects, the Keystone XL Pipeline and the Dakota Access Pipeline (DAPL). In another executive memo, Trump directed the Commerce Department to prepare a plan under which all new and repaired pipe used in the U.S. would be manufactured stateside. In issuing these presidential directives, the new administration has furthered prior commitments to support pipeline infrastructure and domestic jobs, but whether these directives can truly expedite the necessary remaining approvals for Keystone XL and DAPL remains uncertain in light of limited consequence of these executive directives (beyond the executive branch) and the inevitable legal challenges.
The legacy of Keystone XL lives on, as fallout from that politically influenced debate has created a stigma for many new pipeline construction projects. The Sierra Club and other opposition groups openly admitted that their challenge to the Keystone XL pipeline was really a stalking horse to bring more attention to climate change generally. While that opposition was not intended as a more specific objection to pipelines, regional and local citizen groups are now opposing almost any form of new pipeline construction, on a more confrontational basis, using Keystone XL climate change type arguments even where they are not relevant.
The Sierra Club recently filed a complaint in U.S. District Court for the Northern District of California against the U.S. Army Corps of Engineers (Corps), alleging that the Corps wrongfully withheld documents pertaining to its evaluation of the environmental impacts of the proposed Keystone XL pipeline. In March 2013, the Sierra Club requested preconstruction notifications (PCNs) submitted by TransCanada to the Corps, pursuant to Freedom of Information Act (FOIA) (5 U.S.C. § 552, et. seq.). The Corps denied the Sierra Club’s request on the basis that the PCNs, which contain detailed route information, were exempt from FOIA disclosure under the “inter-agency documents” exemption to FOIA (FOIA Exemption 5) (5 U.S.C. § 552(b)(5)). The Sierra Club subsequently filed an appeal with the Corps asserting that the exemption does not apply to documents prepared by an outside party and submitted to an agency. The Sierra Club’s current suit alleges violations of FOIA and the Administrative Procedure Act.
Nationwide permitting for linear projects, relied upon by pipeline operators for construction and maintenance projects, recently survived a challenge from environmental groups. On December 30, 2013, the U.S. District Court for the Western District of Oklahoma ruled against the Sierra Club and other environmental groups in their challenge to the U.S. Army Corps of Engineers’ (Corps) use of Nationwide Permit 12 (NWP 12) for linear utility line projects. The suit, initially brought in June 2012, specifically targeted the Corps’ approval of a NWP 12 for the construction of the southern “Gulf Coast” leg of the Keystone XL pipeline, but also more broadly challenged the Corps’ 2012 reissuance of NWP 12 as a violation of the Clean Water Act (CWA), National Environmental Policy Act (NEPA), and the Administrative Procedure Act (APA) (see prior pipelinelaw alert here).