On December 9, 2015, the United States District Court for the District of Minnesota, held that actions of the U.S. State Department taken pursuant to presidential permits were not reviewable by the court under the Administrative Procedures Act (APA), 5 U.S.C § 701 et seqWhite Earth Nation, et al., v. Kerry, No. 14-4726 (D. Minn. Dec. 9, 2015).  The case concerns two oil pipelines owned and operated by Enbridge, Inc., that cross the United States/Canada border–Line 3, which was constructed in the late 1960s, and Line 67 (also known as the Alberta Clipper Pipeline), which was constructed in the late 2000s following environmental review under the National Environmental Policy Act (NEPA), 42 U.S.C. ch. 55.

Line 67, the Alberta Clipper Pipeline, was constructed between 2008 and 2010. It runs from Hardisty, Alberta, in Canada, to Superior, Wisconsin, in the United States. (Source: http://www.hydrocarbons-technology.com, photo by Robert Somerville)

Line 67, the Alberta Clipper Pipeline, was constructed between 2008 and 2010. It runs from Hardisty, Alberta, in Canada, to Superior, Wisconsin, in the United States. (Source: http://www.hydrocarbons-technology.com, photo by Robert Somerville)

Because both lines cross the border, they are subject to the President’s inherent constitutional authority concerning foreign relations and operate under “presidential permits” issued by the U.S. Secretary of State exercising delegated power. The State Department issued Line 3’s presidential permit in 1991 and issued Line 67’s permit in 2009.

In 2012, Enbridge applied for an amendment to the presidential permit for Line 67 to increase the permitted carrying capacity of the line by almost 100 percent. The State Department initiated a supplemental environmental impact process for this expansion project, which is still ongoing. Meanwhile, in 2014, the State Department approved Enbridge’s plan to replace a significant portion of Line 3, finding the replacement plan was consistent with the terms of the existing 1991 presidential permit for that pipeline. Also in 2014, the State Department concluded that Enbridge’s proposed interconnections between the two pipelines did not require authorization from the State Department because the connecting pipelines are located outside of the border segments for both lines.

Plaintiffs in the case challenged the State Department’s decisions that it did not need to authorize the interconnecting pipelines and that the Line 3 replacement project was consistent with the 1991 presidential permit. These decisions violated NEPA and National Historic Preservation Act (NHPA, 54 U.S.C.. subtitle III), plaintiffs argued, by: (1) authorizing new, high-capacity pipelines without any NEPA or NHPA compliance; and (2) short circuiting an ongoing NEPA and NHPA review of the Line 67 Expansion Project.  Plaintiffs’ claims of violations of NEPA and NHPA were brought under the APA, which provides for a private right of action and a waiver of sovereign immunity for claims challenging agency action.

In rejecting plaintiffs’ arguments, the court noted that the well-settled law that presidential actions are not agency actions that are reviewable under the APA. The court concluded that the State Department’s decisions on the pipelines were presidential in nature, within the scope of the department’s delegated power. Thus, the court held—in accordance with principles of separation of powers—the determinations were not agency actions subject to judicial review under the APA. The court granted Enbridge’s motion for partial summary judgment.

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