Americans wanting a class-A example of judicial lawmaking—“legislating from the bench,” as conservatives like to say—might take a look at U.S. district court Judge Brian Morris’s decision last week halting construction of Keystone XL oil pipeline.
The pipeline, commonly called KXL, is the proposed 1,200-mille pipeline that would bring oil from the oil sands of Alberta to Steele City, Nebraska. KXL would shortcut a much longer existing line. In 2015 the Obama administration blocked the TransCanada Corporation from moving forward with the project, citing concerns over emissions that supposedly cause climate change. President Trump gave the project the go-ahead in 2017.
Environmental groups sued, alleging that the State Department, which has authority to approve the transnational project, hadn’t done enough homework on the project’s environmental impact. The 1970 National Environmental Policy Act requires federal agencies to prepare environmental impact statements (EIS) on proposed projects. The Trump administration relied on the State Department’s 2014 supplemental EIS, but Judge Morris found that that wasn’t enough. Why? Because, for starters, the 2014 statement “conditioned much of its analysis . . . on the price of oil remaining high,” and the price of oil has dropped significantly since 2014. The judge also faulted the 2014 EIS for “fail[ing] to analyze greenhouse gas emissions associated with the Alberta Clipper,” another pipeline, and for neglecting to update the impact statement in various other detailed ways.
All this means that the State Department didn’t take a “hard look” at potential environmental impacts, as required by federal law. That phrase “hard look” first appeared in a 1993 U.S. district court decision, Oregon Natural Resources Council v. Lowe (not cited in this latest decision on KXL) and later appeared in a 2001 appeals court decision, Churchill County v. Norton. The “‘hard look’ requirement,” as Judge Morris calls it, amounts only to the truism that federal agencies must take NEPA, the 1970 statute, seriously.
The plain fact is that the Trump administration doesn’t believe the Obama administration, based on the available evidence, had a good reason to block TransCanada’s permit to build the Keystone XL pipeline. And so it lifted the block. This was a policy decision, not a legal one. The Obama administration had full authority not to grant the permit, and the Trump administration had full authority to lift it.
The environmental groups’ lawsuit, however, allowed Judge Morris, an Obama appointee, to reverse the Trump administration’s decision by appealing to the hopelessly nebulous “hard look” criterion—a criterion itself based on a district court judge’s interpretation of a 1970 statute. The judge, in other words, thought the Trump administration was making a bad policy decision, but rather than ruling that it has the authority to make a bad decision, he ruled that the decision isn’t in line with federal law, according to a mere phrase in an earlier district court decision.
The ruling doesn’t block the TransCanada project but merely forces the State Department to produce more information in support of it. That could take more than a year, likely several. In the meantime, TransCanada may decide it’s not worth pursuing the $8 billion project—thus handing the environmental lobby the victory it sought in bringing the lawsuit. The lesson? In the world of liberal jurisprudence, if a judge wants to stop an agency from doing what it has the full statutory authority to do, he can usually find a way.
