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White Earth Nation v. Kerry

ELR Citation: 45 ELR 20236
Nos. 14-4726, (D. Minn., 12/09/2015) (Davis, J.)

A district court dismissed a lawsuit filed against the State Department in connection with two upgrade projects for a major oil sands pipeline that crosses the U.S-Canada border. One project would replace an existing pipeline segment, and the second would construct an interconnection between two existing pipeline segments. Because the pipelines cross an international border, they are subject to the president's inherent constitutional authority concerning foreign relations and required a presidential permit, authority for which has been delegated by executive order to the Secretary of State. Both pipelines at issue here are covered by existing presidential permits; this case arose after the owner of the pipelines informed the State Department about the upgrade projects. The State Department issued two letters stating that the replacement project was consistent with the applicable permit and that the interconnection project did not require authorization because it was outside the scope of its permit. Environmental groups and Native American tribes filed suit, claiming the government authorized the projects without complying with NEPA and the National Historic Preservation Act in violation of the APA. They sought a court order to set aside the approvals, as well as a permanent injunction barring the use of the new pipeline segments until the government complies with the two Acts. But in determining that the projects were either consistent with or outside the scope of the permits, the State Department was acting pursuant to its authority under executive order. Because the State Department's actions are presidential in nature, they are not subject to judicial review under the APA.