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FEATURE | What the TransCanada pipeline decision may mean for the Marianas

LAST week, Judge Brian Morris of the U.S. District Court in Montana ruled that the State Department violated the National Environmental Policy Act or NEPA when, two days into his presidency, Donald Trump signed an executive order reviving plans for the Keystone XL pipeline.

Earthjustice attorney David Henkin believes that decision bodes well for his and Tinian-based attorney Kimberly King-Hinds’ efforts to appeal the decision made by NMI District Court Judge Ramona V. Manglona in Tinian Women Association et al v. U.S. Department of the Navy et al.

He and King-Hinds accused the U.S. Navy and Department of Defense of violating NEPA by illegally segmenting connected militarization projects located across the Marianas, failing to adequately consider alternative locations for their Guam Relocation Plan and neglecting to address in their environmental impact statement or EIS the cumulative impacts of two connected plans: to relocate thousands of Marines from Okinawa to Guam and to create live-fire training ranges on Tinian and Pagan.

Judge Manglona ruled that the Navy and Department of Defense did not violate NEPA in late August. Henkin and King-Hinds filed for an appeal in mid-September; their oral arguments will be heard by the 9th Circuit Court in San Francisco on December 21.

“I do think it’s worthy of note that the district court in Montana got it right with respect to at least two key issues that are also present in the Marianas case,” Henkin told Variety. “…the duty to supplement an EIS when new information surfaces indicating the impacts will be much greater than the agency assumed in its earlier analysis and… the duty to consider cumulative impacts, even when those impacts may also be analyzed in a subsequent EIS for another project.”

“The Montana court relied on violations of these two legal duties, among other violations, to conclude the EIS prepared for the Keystone XL pipeline violated NEPA.  We will be urging the 9th Circuit to conclude that the Navy’s EIS was illegal based on similar violations.”

The Keystone XL project has prompted environmental impact statements, legal debate, protests and political controversy since Calgary-based firm TransCanada first proposed building the Alberta-to-Texas oil line in July of 2008; the Obama administration rejected TransCanada’s application in 2012, and when the Senate signed a bill to build the pipeline in 2015, Obama vetoed it.

It wasn’t until two years later that President Trump attempted to resuscitate the plagued venture. But embattled environmentalists and lawyers were standing by, prepared to fight yet another round with the GOP’s and TransCanada’s brainchild.

“I’ve been leading the legal fight against Keystone XL on behalf of Sierra Club for a little over ten years, so there have been many ups and downs along the way,” Doug Hayes told Variety. Hayes is lead counsel and one of four attorneys on the case.

“The judge’s ruling on Thursday [last week] ordered the U.S. State Department to prepare a new supplemental environmental impact statement [or SEIS], since there was a lot of new information on the project’s impacts that had occurred since the previous EIS in 2014,” he said.

“The judge vacated the State Department’s approval of the pipeline, so there’s no approved pipeline at this point. He also issued an injunction preventing TransCanada from taking any action on the pipeline in the meantime.”

“The SEIS claim is pretty simple,” Hayes continued. “The last EIS prepared for this project was released in January of 2014, and there’s been a lot of new information on the projects impacts that has arisen since then.”

Hayes said the SEIS should address dropping oil prices and additional data about tar sands crude oil spills and greenhouse gas emissions.

“When the Trump Admin revived this project, they should have considered all this new information in an SEIS, but instead ignored it and rushed a decision without preparing any further analysis. Thus, the judge ruled that they have to go back and conduct that analysis in an SEIS,” he explained.

“On the cumulative climate impacts claim, the State Department has been approving pipeline after pipeline over the last decade, always taking a narrow view of each project’s climate impacts and reasoning ‘the approval of any one project like Keystone XL is unlikely to lead to significant climate impacts,’” Hayes said.

“But NEPA requires an evaluation of the cumulative climate impacts of other past, present, and reasonably foreseeable projects. In this case, the State Department had Keystone XL and another tar sands pipeline, Alberta Clipper, pending before the agency at the same time, yet refused to evaluate their cumulative impacts in the 2014 EIS for Keystone. The judge ruled that they must evaluate the cumulative climate impacts of approving both projects.”

With luck, Henkin and King-Hinds can secure a similar decision for the Marianas.