The question of whether Presidential Permit authority is constitutional and/or subject to judicial review has been and continues to be an unsettled issue. A little more than a month after the State Department’s November 2015 denial of TransCanada’s application for a Presidential Permit to construct its Keystone XL pipeline project, the United States District Court for the District of Minnesota ruled in White Earth Nation et al. v. Kerry et al. that State Department Presidential Permitting decisions are Presidential in nature and are therefore not subject to judicial review. Approximately one month later, in January 2016, TransCanada filed two separate actions to challenge the Obama administration’s rejection of its application for a Presidential Permit for the Keystone XL pipeline. The first action was filed in federal district court in Texas to challenge the denial of the Keystone Presidential Permit, and the second is a Notice of Intent to submit a claim to arbitration under Chapter 11 of the North American Free Trade Agreement (NAFTA).
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State Department
Government Inaction: Fate of Keystone XL Remains Political
By Hunton Andrews Kurth LLP on
The State Department recently released the Final Environmental Impact Statement (FEIS) for the Keystone XL Pipeline. As a final installment to the project’s review under the National Environmental Policy Act (NEPA), the FEIS assesses the potential impacts associated with the proposed pipeline and its alternatives.
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Review of Presidential Permit Limited to Border Crossing (Not Entire Pipeline)
By Hunton Andrews Kurth LLP on
Posted in Operation & Maintenance, Policy
In late 2013, the U.S. State Department granted a Presidential Permit approving the reversal of flow of an existing pipeline that crosses the U.S.-Canadian border in North Dakota. In contrast to other pending Presidential Permits for several proposed pipelines, such as Keystone XL, it appears that the State Department limited its review in this instance to a short section of the pipeline at the border crossing, as opposed to the entire pipeline.
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