After years of legal and political arguing over the Keystone Xcel pipeline, the Obama administration denied a permit to construct it, but last week President Trump reversed that decision and said the pipeline could proceed. The president's decision, however, did not end the fight over the pipeline. First, several Native American groups filed suit in federal court in Montana, and now the Sierra Club and other environmental advocacy groups have filed
a lawsuit in the same court. Here to talk with us about the litigation to stop the pipeline are Receivers, director of the Environmental Environmental Law Clinic at Stanford Law School and Evan's old and a professor at the University of Toledo College of Law. Debora tell us what the Sierra Club and these other plaintiffs are alleging uh in order to try to stop the President's decision to allow
the pipeline to go into effect. Sure, the complaint that was filed on Thursday by the environmental groups really focuses on the claims under the National Environmental Policy Act and under the sort of general Administrative Procedure Act, and what they're alleging is that UM there has not been enough
review of of the environmental impacts from the pipeline. There is an environmental review that was done a while back, but they're alleging that there's new information about the dangers posed by the particular kind of oil coming out of Alberta, UM, and new information about the price of oil and how that might affect whether UM this pipeline would facilitate UH more getting more oil out of the ground than would
otherwise happen. So they're alleging that those those things have not been adequately considered in the State Department's approval, and also that the State Department has not articulated a reason for a legitimate reason for reversing the Obama administration decision. Evan. Are there any differences between the suits by the two groups, the environmental groups and the Native American groups. There are a couple of differences. The arguments are basically the same,
the claims are basically the same. UM. The UH the complete was filed earlier in the week, has a little more detail, has more detail about UM the environmental risks associated with the the pipeline, and as a little bit of legal arguments, neither one of which is necessary or even typical at this stage in the federal case. So I would say that even though they do look different,
they are essentially making the same claims. Bro the what are the arguments that's getting made here is that the old and the environmental impact statement is from two thousand fourteen. Um it's the planeffs are arguing it's stale. They should you know that it And it also doesn't take into account a lot of the information that you mentioned. What is the law in terms of how recent an environmental impact statement has to be in order for it to
be valid. Yeah, there's no clear bright line about when an EI ask like that goes stale. But um so it depends on what evidence the plaintiffs will bring forward to support their claim that there's new information that should
have been considered. And I think in particularly environmental groups are focusing on a study by the National Academy of Sciences that was released a year or so ago that um uh, that really talks in more detail about the specific dangers of this kind of oil and how it's it's more difficult to react to a spill of oil.
You know, we have spills from pipelines and and other oil facilities and so they want so part of what they're arguing is that that that that the e I S needs to be updated in order to incorporate that new information. So again there's no bright line. It depends if they can put forward enough information to convince the court that the that that the the e I S needs to be updated. Evan, can you anticipate what the
government's response is likely to be? It can't just be new president, new order, right, Well, so the first thing to keep in mind is that at this stage there is not really going to be um an argument about the underlying merits, and so the first thing is going to happen is the government is going to move to dismiss and the complaints and at this point there's not going to be a lot of argument about the underlying facts.
So at this first stage, when the government moves to dismiss, it's going to um accept the purposes of the of its motion. These facts as they are stated. It's going to make legal arts mentioned. So what what the court is going to have to decide in the first instance is just say the legal question of whether the plaintes have stated a claim, that is, whether they have UH noted any facts for which the law provides legal redress.
So we're not gonna see a lot of uh doaking doking it out on the facts of this stage in the litigation. Deborah, do you think there will be some we have about thirty seconds here. Do you think, well, there will be a motion for an injunction or is this just going to play out over a longer period of time. I'm not sure about that because there's as you probably know, that this is not the end of
the line. So in particular for this particular segment, which is kind of the hypot news of a triangle um, the pipeline would have to go go through Nebraska, and there is a whole another state process that's going on in Nebraska. So I'm not sure whether the plaintiffs will ask for an injunction. It might be kind of hard to get at this point because there's no imminent harm that the pipeline is going to be built um in
these early early times. And I do agree that I think the government's going to move to dismiss primarily or at least one of the claims, being that it doesn't even have to do an e I S for this project. I think they're taking a position that these permits are fully discretionary and although the State Department did did an e I S, it didn't have to. Al Right, Well, we're going to talk more about the ongoing fight, which who knows when it will end over the Keystone XCEL pipeline.
In a reversal of one of the prior administration's major decisions, President Trump last week approved construction of the Keystone XL pipeline that will run from Canada to Nebraska. But environmental and Native American groups are now suing to prevent the pipeline going forward. And so the many years of controversy over this pipeline did not come to a close with
the president's decision last week. We are talking about the new litigation with deb Receives, the director of the Environmental Law Clinic at Stanford University, and Evans Old and professor at the University of Toledo College of Law. Evan, you had one president's administration say that the pipeline would not be allowed to go forward, they wouldn't get a permit to come across from Canada. Now you have a new president.
New administration came in with different policies and they with the same background of information reverse the decision and say that the pipeline can proceed. Is that does that cause any legal issues? Is it okay for an administration to just reverse what the prior administration did. That's a great question. So there is a a long tradition UH, including a statut cult the Administrative Procedure Act, that is quite skeptical of the agency changes of um UH policy just based
on the change of administration. And so the question that the court is going to ask is is this change in policy arbitrary or capricious? Now it's not a it's not a clear cut question because there definitely his authority, including Supreme Court UM at times has upheld changes in policy. It seemed to be supported by nothing more than the
fact that the administration changed. On the other hand, sometimes courts say, well, now you need to provide more information than just that was and this is now in order to justify a change in policy. And I'll tell you the one thing that's very interesting about this is that UM A court is more likely to defer to the agency to the extent that the court UM is going to apply what's called Chevron deference. And Chevron is the name of the Supreme Court case that um that directs
courts to defer to agency determinations. And what's interesting about that is that in general the Republicans and Congress, particularly in the House, have been very opposed to a strong Chevron deference. And so if they have their way and are able to, either through legislation or through the confirmation of Judge Gorcium, restrained the power of Chevron deference, it would mean that it is less likely that changes in policy like the woman we just saw are going to
be upheld by courts on review. Which side has the stronger argument? Um, Well, yeah, I think it's it's a bit of a toss up here because there is a document when the State Department reversed this recent reverseless a few days ago. Uh. They they put out of documents like thirty pages long. That kind of is their explanation.
So just as we were saying, they have to at least give some explanation to make the decision not arbitrary and capricious and and and you know, so it's hard to handicap because there are some legitimate arguments that there's new information that should have been considered and that it
was arbitrary to simply reverse the decision. On the other hand, as uh, as we just heard, the there is deference to the agency, especially UM in this arena where it's a kind of a for the reason there's a presidential permit is that it's it's the pipeline goes across borders, and so it's kind of a foreign affairs issue, which is even more deference to the at the presidential level. So I I don't know, um uh, you know who
ultimately might might win out on this one. I think it's kind of a toss up, and it all depends on whether the judge thinks there's enough um explanation uh for for why the State Department reverse course? Well, Evan environmental litigation can often take up a lot of time, and the this is not an environmental impact statement that has really ever been looked at by a court because the prior administration denied the permit, so you didn't have litigation about where the I E I S was sufficient.
What is the court going to do when it looks at the E I s now, how searching an inquiry will it do? Well? The inquiry the court is going to make is um is when they're gonna ask how how hard of a look did the agency take at the UM the underlying policy decision. And so they're going to ask did the State Department UM comply with the the law, the National Environmental Policy Act and putting together
uh the environmental Impact Statement. They're going to ask whether or not UM they complied with the regulations about asking for comment from the public UM. And then the court is going to evaluate whether, given the the way that the environmental environmental impacts they WOS put together, whether the agency took a hard look at the at the facts that have collected before it made its policy decisions. Debra, one last thing, how long given all that, do you
think this will go on for? I think these cases don't move super quickly. I mean, as we talked about earlier, there might be a request for some kind of injunction but and there's probably going to be a motion to dismiss. But but if neither of those things happen, then you know you kind of are in for the long haul. There's a record the agency would produce, and they would they would set briefing schedule and argument and that that could take quite a while. UM. Typically these cases go
on for a year or more. Well, our thanks to receive us the director of the Environmental Law Clinic at Stanford University Law School, and Evans Aldawn, a professor at the University of Toledo College of Law, for being here on Bloomberg Law to talk about new litigation over the Keystone XL pipeline. Coming up on Bloomberg Law, we're gonna
be talking about Texas Attorney General Ken Paxton. He was once the scourge of the Obama administration, or at least one of them, took them to court on everything, but now he is facing UH securities fraud charges in Texas and he lost a couple of key rulings in court. That's coming up on Bloomberg Law. This is Bloomberg