Deja Vu All Over Again — The Trump Administration Refuses to Provide “Good Reasons” For Its Change in Course on Keystone XL

Yesterday, Judge Brian Morris granted summary judgment to plaintiffs on some of their claims challenging the State Department’s new Record of Decision for the Keystone XL project.  Whatever our Tweeter-in-chief may say, it’s actually a fairly balanced decision, which ruled in the Administration’s favor on a number of issues.

The most noteworthy part of the decision takes the State Department to task for failing to provide “good reasons” for the change in the ROD concerning climate change.  The Department’s failure even to try to justify the change is so stark that the Court’s explanation is worth some detail:

The Department possesses the authority to give more weight to energy security in 2017 than it had in 2015.  [H]owever,“even when reversing a policy after an election, an agency may not simply discard prior factual findings without a reasoned explanation.” The Department did not merely make a policy shift in its stance on the United States’s role on climate change. It simultaneously ignored the 2015 ROD’s Section 6.3 titled “Climate Change-Related Foreign Policy Considerations.”

Section 6.3 of the 2015 ROD determined that the United States’s climate change leadership provided a significant basis for denying the permit. The Department acknowledged science supporting a need to keep global temperature below two degrees Celsius above pre-industrial levels. The Department further recognized the scientific evidence that human activity represents a dominant cause of climate change. The Department cited trans-boundary impacts including storm surges and intense droughts.  And finally, the Department accepted the United States’s impact as the world’s largest economy and second-largest greenhouse gas emitter. The 2017 ROD initially tracked the 2015 ROD nearly word-for-word. The 2017 ROD, without explanation or acknowledgment, omitted entirely a parallel section discussing “Climate Change-Related Foreign Policy Considerations.” The 2017 ROD ignores the 2015 ROD’s conclusion that 2015 represented a critical time for action on climate change. The 2017 ROD avoids this conclusion with a single paragraph. The 2017 ROD simply states that since 2015, there have been “numerous developments related to global action to address climate change, including announcements by many countries of their plans to do so.” Once again, this conclusory statement falls short of a factually based determination, let alone a reasoned explanation, for the course reversal.

I have previously noted the Administration’s apparent unwillingness to meet even the lenient standard established by the Supreme Court in FCC v. Fox Television Stations for the review of changes in policy by a new administration.  The new administration merely must provide a “reasoned explanation” for the change.  However, as in the prior cases I have discussed, the State Department did not even try to do so.  In California v. BLM, the Court stated that BLM was “casually ignoring” its previous findings.  So too here.

And I am left wondering once more whether Trump even wants Keystone XL to be built or whether he actually prefers the opportunity to rile up his base by complaining about another disgraceful decision thwarting his goals.

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