ELR Citation: 50 ELR 20005
No(s). CV-19-28-GF-BMM (D. Mont. Dec 20, 2019) (Morris, J.)

A district court denied a motion to dismiss a challenge to President Trump's issuance of a permit authorizing a pipeline company to construct a cross-border segment of the Keystone XL oil pipeline. Environmental groups argued the permit's unilateral authorization of the pipeline conflicted with Congress' exclusive power to regulate under the Foreign Commerce Clause. The president moved to dismiss, but the court found the groups pled a plausible claim that merited further argument and analysis. The groups next argued the president lacked authority to grant permission to construct the segment across portions of federal land because only Congress possessed power through the Property Clause to dispose and make rules and regulations respecting federal land. The court again denied the motion to dismiss, finding that Congress possessed "complete control" over federal land and that the president arguably interfered with Congress' constitutional power by issuing the permit without requiring the congressionally-approved comprehensive State Department review process set forth in Executive Order No. 13337. The groups also argued the president violated Executive Order No. 13337 by failing to obtain the views of various federal agencies or the Secretary of State's determination of whether issuance of the permit would serve the national interest. The president asserted that he could not violate an Executive Order as a matter of law. But the court found the groups' assertion that the president lacks inherent constitutional authority to issue the permit, combined with Congress' approval of the order's permitting process through the Temporary Payroll Tax Cut Continuation Act, supported the group's claim. It therefore denied the president's motions to dismiss, but also denied the groups' motion for a preliminary injunction at this stage because the company is not currently engaged in any activities that alter the status quo.