JARED MARGOLIS: What the courts found is that the government didn’t do a full analysis of the impacts that KXL would have on the environment. The National Environmental Policy Act (NEPA) requires agencies to undertake what they call “a hard look” at the consequences of the agency approving a project like this. And the State Department did not take that hard look at issues regarding the greenhouse gas emissions associated with the project, the impact of oil spills and some other issues like that. And they also didn’t account for the fact that the government determined under the Obama administration that the project was not in the national interest and yet here the Trump administration reversed course and said it was in the national interest without fully explaining that reversal in their decision. And that sends a really important message to the Trump administration, which says you can’t just make these decisions without some support, without some acknowledgement of the impact of those decisions. And that’s really important for those of who care about clean air and clean water and the environment because, as we’ve seen, the administration has been making decisions like this to allow projects like this to go forward to permit destruction of the environment in order to promote economic development. And this is saying to the administration, you have to pull back and really think through what the consequences of these decisions are, and they clearly didn’t do that.
BETWEEN THE LINES: So the ruling was that the State Department needs to do another Environmental Impact Statement (EIS), or add to the existing one, or what?
JARED MARGOLIS: So, what happens with an EIS that’s incomplete is they remand it back to the agency and the court says, you need to supplement this EIS. So here they need to do an Supplemental EIS; that’s a whole new document that supplements the existing EIS. That supplemental document is subject to the same public comment period and the same oversight that the original EIS is subject to. So we’ll have a full process here that looks at the supplemental issues that the court said need to be addressed.
BETWEEN THE LINES: Jared Margolis, I read that it’s possible, rather than go down that road, that the Trump administration might appeal this ruling.
JARED MARGOLIS: Certainly, they could decide to appeal the ruling and take it to the Ninth Circuit. There are a couple of arguments they could make. The big one is that the government has taken the position that the NEPA actually doesn’t apply in this situation. Their argument is that this is a presidential decision; the permit that’s being issued here is something that’s been created by an executive order and that therefore gives the president the authority and the president is not subject to NEPA. The problem with that argument is that the decision is actually getting made by the State Department, and the State Department as an agency of the government is subject to NEPA. We went through this issue on what they call Motions to Dismiss on this case, and the judge agreed with us that that State Department does have to follow NEPA and then, as you know, subsequently determined that they did not fully comply with that law. The government will then likely argue on appeal that the president’s decision – even though it was made by the State Department – isn’t subject to NEPA, and we’ll have to deal with that at the appellate level. But we don’t know what they will appeal; we don’t know if there are other aspects of the case they will appeal. We believe that we are correct on that point; we believe the judge was correct in ruling on our favor on that point, and we think the Ninth Circuit will agree that the State Department should be making this decision with a full understanding of the risks involved, which requires an EIS under NEPA.
BETWEEN THE LINES: Either way, whether they go with a Supplemental EIS or decide to appeal the judge’s decision, what kind of delay do you think we’re looking at?
JARED MARGOLIS: It’s difficult to say in terms of timeframe. If they are actually going to address all the issues that the judge is saying, they need to address in a reasonable way, it will likely take up to a year, or more, to do that. If they appeal, it depends on the posture of the case. If they ask for expedited review at the Ninth Circuit, that is likely to delay any construction activities for at least six months to a year, if we’re going to be looking at this in a reasonable manner.
BETWEEN THE LINES: TransCanada says they’re sticking with this project, which was first proposed ten years ago and has run into fierce opposition from indigenous groups, climate activists and local residents in the path of the pipeline. Do you think it will get built?
JARED MARGOLIS: This decision, it definitely will cause more delay and more cost. It makes this less economic for TransCanada. Really, it’s showing not only TransCanada and the government that they haven’t done enough analysis, but it’s going to show the public why this is not a good idea, because this analysis is going to show why this is going to have devastating impacts to our environment and our climate and people and communities and species that live along the lines that are subject to these potential spills and other harms associated with this project, and so while they haven’t made a decision yet, it seems, this is definitely make it harder for this project to ever get built, and we’re confident that this is going to hopefully result in this project being abandoned because it’s in everyone’s real interest – except for the few people that are going to make money off it – it’s in everyone’s interest not to be tapping in to these horrible tar sands. And it’s an important point to remember that there are not very many jobs from this project; this is not benefiting America – this is Canadian product that’s likely going to Asia. This is not in our interest, and to allow construction of this devastating project across our country – it’s unconscionable.
