Conservatives Slam Keystone XL Pipeline Injunction

November 14, 2018 Updated: November 14, 2018

A federal judge’s order suspending construction of the long-delayed 1,200-mile Keystone XL Pipeline that would link Canadian oil sands fields to refineries on the U.S. Gulf Coast is an example of the judiciary’s out-of-control liberal activism, according to conservatives who favor rolling back the power of government.

“The Keystone pipeline provides clean energy and good jobs that will make America stronger, so leftists want it shut down,” said Donny Ferguson, president of Americans for a Better Economy, an Alexandria, Virginia-based nonprofit organization.

The job-creating project would add to the existing Keystone pipeline, finished in 2013, which runs from Alberta to Illinois, Texas, and Oklahoma. When completed, Keystone XL is supposed to move as much as 830,000 barrels of crude oil from Alberta to Montana, Oklahoma, and Texas, stretching 875 miles through Montana, South Dakota, Nebraska, and other parts of Canada.

Activists on the left were overjoyed by the court decision on Nov. 8 blocking the pipeline.

“Today’s ruling makes it clear once and for all that it’s time for TransCanada to give up on their Keystone XL pipe dream,” Sierra Club senior attorney Doug Hayes said. “The Trump administration tried to force this dirty pipeline project on the American people, but they can’t ignore the threats it would pose to our clean water, our climate, and our communities.”

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President Donald Trump announces the final approval of the XL Pipeline following a meeting with the National Economic Council in the Oval Office of the White House in Washington on March 24, 2017. At left is TransCanada CEO Russell Girling with U.S. Commerce Secretary Wilbur Ross (C). (MANDEL NGAN/AFP/Getty Images)

“Activists argue the pipeline would be especially damaging to the climate because it would mean extracting thick, low-quality oil from Canada’s oil sands, with lots of tree-cutting and energy consumption in the process, which would increase greenhouse gas emissions,” according to a summary in The Washington Post.

“Native American groups in Montana and elsewhere fought the Keystone project as well, saying its route failed to adhere to historical treaty boundaries and would impinge on their water systems and sacred lands.”

TransCanada isn’t deterred by the court decision. “We have received the judge’s ruling and continue to review it,” said spokesman Terry Cunha. “We remain committed to building this important energy infrastructure project.”

Ignored Obama Administration Findings

In a 54-page ruling in a lawsuit brought by environmentalist groups, Judge Brian Morris of the U.S. District Court in Montana found that the Department of State disregarded evidence related to climate change needed to measure the potential environmental impact of the pipeline project, in order to support President Donald Trump’s goal of moving forward with it.

That violated the Administrative Procedure Act, Morris held, which mandates that “reasoned” explanations be provided for government decisions, especially when they constitute reversals of well-studied actions. When the administration reconsiders the pipeline project, it will have to more thoroughly review how it may affect climate change and endangered species.

The ruling by Morris echoed complaints by Trump opponents who accuse the president of doing an end-run around the regulatory process as he tries to unleash the economy by rolling back Obama-era environmental regulations.

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Then-President Barack Obama announces the denial of the Keystone XL pipeline, flanked by Secretary of State John Kerry (R), and Vice President Joe Biden, in the Roosevelt Room of the White House in Washington on Nov. 6, 2015. (MANDEL NGAN/AFP/Getty Images)

Morris wrote that the Trump administration ignored Obama administration findings related to the “climate-related impacts” of the pipeline project and claimed those impacts “would prove inconsequential.” Foggy Bottom “simply discarded prior factual findings related to climate change to support its course reversal,” and relied on “outdated information” about the prospective impact oil spills might have on endangered species.

‘Expeditious Review’

In 2015, President Barack Obama rejected the project after dragging his heels for seven years without making a decision. He said the United States was now a “global leader when it comes to taking serious action to fight climate change.” The “biggest risk” the country faced was “not acting,” he said.

Trump campaigned against Obama’s nixing of the pipeline and took action to move the project forward days after being sworn in, promising it would create jobs, stimulate the economy, and reduce dependence on foreign oil.

Trump signed a presidential memorandum intended to promote construction of the Keystone XL Pipeline on Jan. 24, 2017. In it, he formally invited Calgary-based TransCanada Keystone Pipeline L.P. to re-submit its application to the Department of State for a presidential permit, a document needed for cross-border infrastructure projects, to move forward with construction of the pipeline.

The department was ordered to “take all actions necessary and appropriate to facilitate its expeditious review” and to “reach a final permitting determination … within 60 days of TransCanada’s submission of the permit application.”

Partisan and Legal Issues

Conservatives contacted by The Epoch Times expressed support for Trump and the pipeline. They rejected the judge’s reasoning, accusing him of acting arbitrarily and falling victim to environmentalist misinformation, especially with regard to the alleged phenomenon of anthropogenic global warming.

The judge’s “scattershot ruling” elevates environmental activism over judicial responsibility and professional restraint, said Tina Trent, a former candidate for District 26 of the Georgia General Assembly.

“It is particularly disappointing that Judge Morris failed at his job of winnowing the partisan from the legal issues at hand,” she said.

“Increasingly in America, we are seeing tidal waves of litigation against any decision that contradicts the goals of the hard left, be it at the ballot box or in the courts. This litigation is coming from an unholy triumvirate of academicians, powerful nonprofits, and their media mouthpieces. The academicians are, by any reasonable interpretation of modern academia’s money sources, working off the public dime.”

The pipeline shouldn’t even be a political issue, said Trent, a writer and former academic who holds a doctorate in contemporary political and social movements from Emory University.

“What would these elite activists prefer: more dependency on the oil from Middle East dictatorships, where women, gays, and foreigners are treated like slaves by any definition of the term, and where environmental rules like those governing this pipeline, let alone the workers toiling to extract oil there, are nonexistent?”

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A man holding a sign bearing the name of the Ihanktonwan Indian tribe participates in a protest against the proposed Keystone XL pipeline in Pierre, South Dakota on Oct. 13, 2014. (Andrew Burton/Getty Images)

Ferguson had words for the judge.

“Brian Morris, an Obama appointee and former United Nations lawyer, decreed Trump cannot exercise his authority to control the border because he didn’t account for so-called ‘climate change,’” Ferguson said. “That is insane and legally preposterous.”

He predicted the Supreme Court would “easily overturn” this “political ruling” on the pipeline and accused the judge of incompetence.

The Senate “should remove Morris and replace him with an actual judge, instead of a partisan activist who believes UN decrees should overrule his oath to uphold the Constitution.”

Judicial Overreach

The ruling by Morris is also the latest in a series of controversial, policy-obstructing court decisions against the Trump administration that conservative critics have attacked as examples of liberal judicial overreach.

Trump did enjoy a rare legal triumph on Dec. 4, 2017, when the Supreme Court allowed his Presidential Proclamation 9645, a ban on travelers from Islamic terrorism-producing nations, to take full effect. But since he was inaugurated, federal courts have repeatedly halted government operations.

Judges have issued injunctions, many of them with nationwide effect, preventing the administration from moving forward with policies related to immigration and national security, transgender military service, and Obama’s executive order-created Deferred Action for Childhood Arrivals (DACA) program, which prevents illegal aliens brought to the United States as children from being deported.

Before he resigned last week, then-Attorney General Jeff Sessions and federal lawmakers had been targeting the growing problem of unelected federal judges taking it upon themselves to veto presidential actions by issuing nationwide injunctions that reach far beyond the confines of a particular case. Sessions had directed federal prosecutors to try to curb these so-called “non-party” injunctions that allow judges to function as lawmakers.

Retiring House Judiciary Committee Chairman Bob Goodlatte (R-Va.) had been promoting the proposed Injunctive Authority Clarification Act of 2018. Its supporters say the goal of the measure is to restore the traditional understanding that a federal court’s injunctive power extends only to the protection of the parties before it.

In a similar vein, Seton Motley, president of Less Government, a Washington-area nonprofit, said judges such as Morris need to start doing their jobs instead of legislating from the bench.

“The judge is a judge,” Motley said. “He’s not a climate scientist. And more importantly, he’s not a Trump administration official. The Trump administration went through the correct legal channels in advance of approving the pipeline.”

“The judge may not personally like the decision. But that’s none of his official judicial business. His business is to rule on the legality of the decision. The decision is legal. His ruling is not,” he added.