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No. 18-36068, Consolidated with Nos. 18-36069, 19-35036, 19-35064, 19-35099
__________________________________________________________________

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
__________________________________________________________________
INDIGENOUS ENVIRONMENTAL NETWORK ET AL.,
Plaintiffs-Appellees-Cross-Appellants,
v.
UNITED STATES DEPARTMENT OF STATE ET AL.,
Defendants-Appellants,
and
TRANSCANADA KEYSTONE PIPELINE, LP, ET AL.,
Intervenor-Defendants-Appellants.
On Appeal from the United States District Court
for the District of Montana
Nos. 4:17-cv-00029-BMM and 4:17-cv-00031-BMM
APPELLANTS’ MOTION TO DISMISS THE CONSOLIDATED APPEALS,
VACATE THE DISTRICT COURT’S JUDGMENTS, VOID ITS INJUNCTION
AND FINAL ORDERS, AND REMAND WITH INSTRUCTIONS TO DISMISS
FOR MOOTNESS
__________________________________________________________________

Peter R. Steenland, Jr.
James R. Bieke
Joseph R. Guerra
Peter R. Whitfield
Kathleen M. Mueller
SIDLEY AUSTIN LLP
1501 K Street, N.W.
Washington, D.C. 20005
(202) 736-8000
Attorneys for Intervenor-DefendantsAppellants
TransCanada Keystone Pipeline LP and
TransCanada Corporation

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CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1, TransCanada
Keystone Pipeline, LP and TransCanada Corporation make the following
disclosures:
TransCanada Keystone Pipeline, LP, is a Delaware limited partnership
wholly owned by TransCanada Keystone Pipeline, LLC and TransCanada
Keystone Pipeline GP, LLC, which are indirectly wholly owned by
TransCanada Corporation.
TransCanada Corporation is a Canadian public company organized under the
laws of Canada. No publicly held corporation owns 10% or more of TransCanada
Corporation’s stock.

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TABLE OF CONTENTS
Page
CORPORATE DISCLOSURE STATEMENT ........................................................ i
TABLE OF AUTHORITIES .................................................................................. iii
PRELIMINARY STATEMENT ............................................................................. 1
STATEMENT OF FACTS ...................................................................................... 3
A. Background: Events through 2017 ................................................................ 3
B. Proceedings Below ......................................................................................... 6
C. New Presidential Permit................................................................................. 8
ARGUMENT ........................................................................................................... 9
A. Plaintiffs’ Claims Are Moot ........................................................................ 10
B. Because Plaintiffs’ Claims Are Moot, The Appeals Should Be
Dismissed And The District Court’s Judgments Should Be Vacated ......... 13
C. The District Court’s Injunction Should Be Dissolved................................. 14
RELIEF REQUESTED .......................................................................................... 17
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES
Page
Cases
Arizonans for Official English v. Arizona,
520 U.S. 43 (1997) .............................................................................................. 13
Cablevision of Tex. III, L.P. v. Okla. W. Tel. Co.,
993 F.2d 208 (10th Cir. 1993) ............................................................................ 15
Ctr. for Biological Diversity v. Marina Point Dev. Co.,
566 F.3d 794 (9th Cir. 2009) ..................................................................10, 13, 14
Humane Soc’y of the U.S. v. Kempthorne,
527 F.3d 181 (D.C. Cir. 2008) ............................................................................ 14
Outdoor Media Grp., Inc. v. City of Beaumont,
506 F.3d 895 (9th Cir. 2007) .............................................................................. 10
Preiser v. Newkirk,
422 U.S. 395 (1975) ............................................................................................ 10
San Luis Unit Food Producers v. United States,
709 F.3d 798 (9th Cir. 2013) .............................................................................. 11
Sierra Club v. Clinton,
689 F. Supp. 2d 1147 (D. Minn. 2010)................................................................. 4
U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship,
513 U.S. 18 (1994) .............................................................................................. 14
United States v. Munsingwear, Inc.,
340 U.S. 36 (1950) ..........................................................................................3, 13
United States v. Sanchez-Gomez,
138 S. Ct. 1532 (2018) ........................................................................................ 10
Winter v. NRDC,
555 U.S. 7 (2008) ................................................................................................ 16

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Wyoming v. Zinke,
871 F.3d 1133 (10th Cir. 2017) .......................................................................... 14

Regulations
Executive Order 11,423, 33 Fed. Reg. 11,741 (Aug. 20, 1968) ................................ 4
Executive Order 13,337, 69 Fed. Reg. 25,299 (May 5, 2004)................................... 4
Memorandum of January 24, 2017, Construction of the Keystone XL
Pipeline, 82 Fed. Reg. 8,663 (Jan. 30, 2017) ....................................................... 5

Legislative Materials
President Ulysses Grant’s Seventh Annual Message to Congress,
reprinted in Papers Relating to the Foreign Relations of the United
States, Vol. 1, 44th Cong. 1st Sess., H.R. Doc. No. 1, Pt. 1 (Dec. 6,
1875) ..................................................................................................................... 4

Other Authorities
22 U.S. Op. Att’y Gen. 514 (1899) ............................................................................ 4
30 U.S. Op. Att’y Gen. 217 (1913) ............................................................................ 4
38 U.S. Op. Att’y Gen. 163 (1935) ............................................................................ 4
Whiteman, Digest of International Law, Vol. 9 (1968) ............................................ 4

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PRELIMINARY STATEMENT
Pursuant to Federal Rule of Appellate Procedure 27 and Ninth Circuit Rule
27-1, appellants TransCanada Keystone Pipeline, LP, and its parent TransCanada
Corporation (jointly “TransCanada”), intervenor-defendants in the proceedings
below, move this Court to dismiss these consolidated appeals, and to vacate the
district court’s judgments, dissolve its permanent injunction, and remand the
underlying lawsuits to the district court with instructions to dismiss them. These
consolidated appeals, and the underlying suits, have been rendered moot by recent
actions of the President that vitiate the bases for plaintiffs’ claims.
In the suits giving rise to these appeals, plaintiffs challenged a Presidential
Permit, issued by the U.S. Department of State (“State”), that authorized
TransCanada to construct and operate 1.2 miles of oil pipeline facilities crossing
the Canada-United States border as part of the Keystone XL Pipeline Project (the
“Project” or “Keystone XL”). Plaintiffs alleged that, in issuing that permit, State
and various other federal governmental agencies and officials (collectively
“Federal Defendants”) were subject to, and had violated, the Administrative
Procedure Act (“APA”), the National Environmental Policy Act (“NEPA”), and
the Endangered Species Act (“ESA”). The central, dispositive issue before the
district court was whether State’s issuance of a Presidential Permit pursuant to an
express delegation of the President’s authority to grant such permits was agency

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action, which is subject to the requirements of the foregoing statutes, or
Presidential action, which is not subject to those requirements. The district court
concluded that State had engaged in agency action, and that the Federal Defendants
had violated the APA, NEPA, and the ESA in several respects. The court enjoined
construction and certain pre-construction activities (i.e., assembling worker camps)
to ensure that “bureaucratic momentum” would not skew the additional
environmental analysis the Court required State to undertake.
On March 29, 2019, the President formally revoked the permit that State had
issued and, acting in his own name and under his own authority, granted a new
Presidential permit authorizing TransCanada to construct the same cross-border oil
pipeline facilities that had been the subject of the earlier permit. These actions
render plaintiffs’ claims moot. Those claims all challenged the validity of a permit
that no longer exists. Accordingly, no effective relief can be granted with respect to
those claims. Indeed, one of the plaintiffs has acknowledged as much, by filing a
new suit in which it recognizes the validity of the President’s revocation of the
State-issued permit, alleges that the new permit is invalid, and seeks injunctive
relief with respect to that new permit.
Accordingly, as TransCanada explains in detail below, these recent
developments dictate that the consolidated appeals be dismissed as moot. In
addition, the judgments below should be vacated, the district court’s injunction

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should be dissolved, and the cases should be remanded with instructions to dismiss
for mootness. See United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950).
TransCanada is not moving for the foregoing relief in the district court
because the new Presidential Permit was issued after the appeals were filed and
jurisdiction vested in this Court. TransCanada’s counsel has contacted counsel for
the other parties and has been advised that the Federal Defendants-Appellants
support this motion; Plaintiffs-Cross-Appellants Indigenous Environmental
Network (“IEN”) and North Coast River Alliance take no position at this time, but
reserve the right to oppose after they review this filing; and the remaining
Plaintiffs-Cross-Appellants oppose this motion. The Intervenor-Appellees have not
advised us of their positions.
STATEMENT OF FACTS
A. Background: Events through 2017
TransCanada proposed Keystone XL in 2008 as an expansion of an existing
pipeline system. See State’s March 23, 2017 Record of Decision/National Interest
Determination (“2017 ROD/NID”) (Appendix A) at 9 (Appx009). Because
Keystone XL would cross the Canada-U.S. border, TransCanada needs a
Presidential Permit authorizing the construction of border-crossing facilities.
For nearly 150 years, the permitting of international cross-border facilities
has been understood to fall within the President’s inherent constitutional power
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over foreign affairs.1 Through the 1960s, Presidents personally signed and issued
permits for such facilities. See Whiteman, Digest of International Law, Vol. 9
(1968); ECF No. 44-5, at 17-21.2 In 1968, the President delegated his authority to
issue certain cross-border permits to State. Executive Order 11,423, § 1(a), 33 Fed.
Reg. 11,741 (Aug. 20, 1968). A later executive order refined the process for
issuing cross-boundary pipeline permits. Executive Order 13,337, 69 Fed. Reg.
25,299 (May 5, 2004). Under Executive Order 13,337, the Secretary of State was
authorized to issue such permits if doing so would “serve the national interest.” Id.
Accordingly, TransCanada applied to State in 2008 for a Presidential Permit
to construct Keystone XL facilities on or near the Canada-U.S. border in Montana.
2017 ROD/NID at 9 (Appx009). In response, State coordinated a multi-year review
of the Project’s environmental impacts. See id. However, in January 2012,
President Obama denied TransCanada’s initial application on the ground that a

1

See President Ulysses Grant’s Seventh Annual Message to Congress, reprinted in
Papers Relating to the Foreign Relations of the United States, Vol. 1, 44th Cong.
1st Sess., H.R. Doc. No. 1, Pt. 1 (Dec. 6, 1875); Sierra Club v. Clinton, 689 F.
Supp. 2d 1147, 1163 (D. Minn. 2010); see also, e.g., 38 U.S. Op. Att’y Gen. 163
(1935) (gas pipeline); 30 U.S. Op. Att’y Gen. 217 (1913) (electrical power); 22
U.S. Op. Att’y Gen. 514 (1899) (submarine cables).

2

All ECF numbers cited in this motion relate to the document numbers in Case No.
4:17-cv-00029-BMM in the district court.
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deadline imposed by Congress in a December 2011 law was too short to allow
consideration of the impacts of a potential alternative route in Nebraska. Id.
TransCanada renewed its application in May 2012, id., and State completed
its environmental analysis in January 2014. Id at 5, 10 (Appx005, 010). On
November 6, 2015, State issued a ROD/NID in which it denied the permit.
Appendix B (Appx032-063). State concluded that, although the Project would
yield “meaningful” economic benefits and that TransCanada had “agreed to
mitigate” many of its potential environmental and cultural impacts, approval would
not be in the national interest because it would be perceived to undermine U.S.
foreign policy efforts to be a global leader in attempting to combat climate change.
Id. at 30, 31 (Appx061, 062).3
On January 24, 2017, President Trump issued a memorandum inviting
TransCanada to re-apply for a Presidential Permit. Memorandum of January 24,
2017, Construction of the Keystone XL Pipeline, 82 Fed. Reg. 8,663, § 3(i) (Jan.
30, 2017). TransCanada re-applied and, in March 2017, State issued a new
ROD/NID that approved TransCanada’s application. 2017 ROD/NID at 3, 31
3

In that ROD/NID, State explained that a determination as to whether cross-border
pipeline facilities will “serve the national interest” is “Presidential in nature, and
therefore the requirements of NEPA [and] the ESA … are inapplicable.” 2015
ROD/NID at 3 (Appx034). “Nevertheless, as a matter of policy and in order to
inform [its] determination regarding the national interest,” State reviews the
impacts of proposed projects “in a manner consistent, where appropriate, with
these statutes.” Id. (emphasis added).
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(Appx003, Appx031). In that ROD/NID, State reiterated that its determination was
“Presidential action, made through the exercise of Presidentially delegated
authorities,” and that therefore the requirements of NEPA, the ESA, and the APA
“that do not apply to Presidential actions are also inapplicable here.” Id. at 3
(Appx003). At the same time, State issued a Presidential Permit authorizing
TransCanada to construct, connect, operate, and maintain a 1.2-mile segment of
Keystone XL at the Canada-U.S. border. ECF No. 44-8.
B. Proceedings Below
Two sets of plaintiffs sued to challenge the permit and underlying
ROD/NID, alleging that the Federal Defendants had violated NEPA, the APA, and
the ESA. TransCanada intervened and, together with the Federal Defendants,
moved to dismiss. They argued that the issuance of that Presidential Permit was
Presidential action, and thus not reviewable under those laws.
The district court denied those motions, ruling that State’s issuance of the
Presidential Permit was agency, not Presidential, action. Appendix C (Appx064096). Accordingly, it held that the permit was subject to review under the APA and
ESA for compliance with the requirements of those laws and NEPA. Id. at 9-15,
28-29 (Appx072-078, 091-092).4 The court distinguished contrary decisions by

4

NEPA does not provide a private right of action, and thus judicial review of
alleged violations of NEPA can be obtained only under the APA. See infra note 7.
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other courts by asserting that, in his January 2017 Memorandum, the President had
“waived” his right to review State’s decision, thereby converting Presidential
action into agency decision-making. See id. at 10, 12 (Appx073, 075).
After concluding that it had jurisdiction to review State’s decision, the court
granted partial summary judgment to the plaintiffs, and ordered State to
supplement its NEPA review with an analysis of an alternative pipeline route
through Nebraska. Appendix D (Appx097-109). In a subsequent decision, the court
rejected many of the plaintiffs’ remaining claims and accepted others. Appendix E
(Appx110-163). It directed State to supplement its NEPA analysis in various
respects. Id. at 15-23, 26-31 (Appx124-132, 135-140). The court also vacated the
2017 ROD/NID and instructed State to provide a “reasoned explanation” for the
change from its 2015 national interest determination. Id. at 35 (Appx144). Further,
it instructed State and the Fish and Wildlife Service to consider whether recent data
regarding oil spills would alter prior conclusions that the Project was not likely to
adversely affect avian species protected under the ESA. Id. at 43-44 (Appx152153). Finally, the court enjoined the Federal Defendants and TransCanada “from
engaging in any activities in furtherance of the construction or operation of
Keystone and associated facilities” until State completes the supplemental review.
Id. at 54 (Appx163). The court entered final judgment on November 15, 2018.
Appendix F (Appx164-165).

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The court subsequently confirmed that its injunction barred pre-construction
activities such as preparing right-of-way storage and contractor yards and worker
camps. Appendix G (Appx166-181). The court concluded that plaintiffs would
suffer irreparable harm because the “bureaucratic momentum” created by these
activities could “skew” State’s further NEPA analysis. Id. at 10 (Appx175).
On December 21, 2018, TransCanada appealed (Nos. 18-36068 and 1836069) and moved the district court for a stay pending appeal.5 The district court
narrowed its injunction to permit certain pre-construction activities, but refused to
allow the building of worker camps or any construction of the pipeline itself.
Appendix H (Appx182-212). TransCanada’s subsequent motion in this Court for a
stay of the injunction pending appeal was denied on March 15, 2019.
C. New Presidential Permit
On March 29, 2019, President Trump formally revoked the permit
previously issued by State and, bypassing the procedures of E.O. 13,337,
personally signed a new Presidential Permit authorizing TransCanada “to
construct, connect, operate, and maintain pipeline facilities at the international
border of the United States and Canada at Phillips County, Montana, for the import

5

Subsequently, both sets of plaintiffs cross-appealed (Nos. 19-25036 and 1935064), the Federal Defendants appealed (No. 19-35099), and other pipeline
opponents were permitted to intervene as plaintiffs-appellees in this Court (ECF
No. 34).
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of oil from Canada to the United States.” Appendix I (Appx213). This permit
“supersedes the Presidential permit issued to [TransCanada], dated March 23,
2017,” that State had issued. Id.
One week later, on April 5, 2019, plaintiffs IEN filed a new suit against the
President, as well as various federal agencies and officers, that seeks to have the
new Presidential Permit declared invalid. Appendix J (Appx218-243). The new
complaint acknowledges that the President had the authority to revoke the permit
that State issued, id. at 219-220, and thus recognizes that the permit at issue in
these consolidated appeals no longer has any operative legal effect. The new
complaint seeks to invalidate the new permit on theories that were not litigated in
these proceedings, and seeks a new injunction that would run against, inter alia,
the President who is not a defendant in these cases.
ARGUMENT
Because the President has revoked the Presidential Permit that State issued,
the NEPA, APA, and ESA claims that were litigated below—and that would
otherwise be litigated in these appeals—no longer present a case or controversy
under Article III of the U.S. Constitution. Those claims all concerned the validity
of a permit and the underlying ROD/NID justifying its issuance. Neither of these
documents, however, has any continuing legal significance. Because plaintiffs’
claims are moot, the district court’s judgments should be vacated, its injunction

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should be dissolved, and the cases should be remanded with instructions to
dismiss.
A. Plaintiffs’ Claims Are Moot.
As the Supreme Court has explained, “[t]he exercise of judicial power under
Art. III of the Constitution depends on the existence of a case or controversy. . . .
‘The rule in federal cases is that an actual controversy must be extant at all stages
of review, not merely at the time the complaint is filed.’” Preiser v. Newkirk, 422
U.S. 395, 401-02 (1975) (quoting Steffel v. Thompson, 415 U.S. 452, 459 n.10
(1974)). See also United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1537 (2018)
(“A case that becomes moot at any point during the proceedings is ‘no longer a
“Case” or “Controversy” for purposes of Article III,’ and is outside the jurisdiction
of the federal courts”) (quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 91
(2013)).
It is clear that plaintiffs’ claims challenging State’s issuance of the 2017
permit are moot because those claims no longer present a “controversy as to which
effective relief can be granted.” Outdoor Media Grp., Inc. v. City of Beaumont, 506
F.3d 895, 900 (9th Cir. 2007) (emphasis added) (quoting People of Vill. of Gambell
v. Babbitt, 999 F.2d 403, 406 (9th Cir. 1993)); see also Ctr. for Biological
Diversity v. Marina Point Dev. Co., 566 F.3d 794, 804-05 (9th Cir. 2009) (same).
Plaintiffs’ claims were all based on the assertion that State engaged in “agency

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action” when it issued the 2017 ROD/NID and granted TransCanada’s application
for a Presidential Permit. The district court’s agreement with that assertion
provided the basis for its holding that it had authority to review the Federal
Defendants’ actions for compliance with the APA, NEPA, and the ESA.6
But the parties’ dispute over whether State engaged in “agency action” when
it issued the prior permit is moot. The President has revoked State’s permit and
issued a new Presidential permit authorizing construction and operation of the
same cross-border facilities covered by State’s prior permit. A decision of this
Court affirming or denying the district court’s “agency action” determination
cannot provide legally “effective” relief, because it will have no bearing on
whether TransCanada can build the pipeline facilities that plaintiffs seek to block.
For this same reason, the parties’ disputes over whether State complied with
NEPA, the APA or the ESA present no controversies as to which effective relief
can be granted. Virtually all of the relief the district court ordered was justified
by—and designed to cure—alleged defects in the 2017 ROD/NID. That document,
however, has no continuing legal significance: Its sole purpose was to approve and
justify a permit that no longer exists. Thus, a decision by this Court affirming or
reversing the district court’s orders (1) vacating the ROD/NID, (2) requiring State

6

In the Ninth Circuit, the requirements of the APA are treated as jurisdictional
prerequisites to suit. See, e.g., San Luis Unit Food Producers v. United States, 709
F.3d 798, 801 (9th Cir. 2013).
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to supplement the environmental analysis underlying that document, and (3)
requiring State to provide a more complete explanation for a change in policy
reflected in that document cannot provide “effective” relief, because these orders
cure alleged defects in a document that itself has no legal effect.7
The same is true of a decision affirming or reversing the injunction entered
against TransCanada. That injunction was entered to ensure the efficacy of the
court’s orders requiring State to comply with NEPA and the APA. See Appx170176, Appx207-209 (injunction avoids the risk that construction will create
“bureaucratic momentum” in favor of the project and bias State’s NEPA analysis).
Because, as just noted, the latter relief is legally meaningless, so too is an
injunction entered in aid of that meaningless relief.
IEN’s new complaint challenging the new Presidential Permit confirms that
the consolidated appeals are moot. IEN concedes that the President had “the
authority … to revoke the 2017 Permit.” Appx219-220. That concession

7

Requiring supplementation of the NEPA analysis underlying a legally irrelevant
ROD/NID is not only meaningless, but unnecessary here. State’s environmental
analysis will be updated as part of the NEPA analysis that must be done in
connection with the issuance of permits that TransCanada is required by statute to
obtain from the Bureau of Land Management (“BLM”) and the Army Corps of
Engineers for certain segments of the pipeline in the United States. If plaintiffs are
dissatisfied with the final environmental analysis underlying those permits, they
can challenge it in suits challenging those permits, assuming there is a valid basis
for such claims.
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underscores that the documents at the center of the consolidated appeals—the 2017
permit and 2017 ROD/NID underlying it—have no continuing legal force or effect.
More fundamentally, TransCanada’s authority to construct the Keystone XL
Project derives from a different permit; that permit is being attacked on different
grounds in a different suit; and plaintiffs must obtain a new injunction that would
run against new defendants, most notably the President himself, to prevent
construction of the Project. All of these aspects of the new lawsuit simply
underscore that the 2017 permit and ROD/NID, and the parties’ dispute over their
validity, are now legally irrelevant, and these appeals are now moot.
B. Because Plaintiffs’ Claims Are Moot, The Appeals Should Be
Dismissed And The District Court’s Judgments Should Be Vacated.
When an appeal becomes moot before the appellate court can hear or rule on
the appeal, “[t]he established practice . . . in the federal system . . . is to reverse or
vacate the judgment below and remand with a direction to dismiss.” Munsingwear,
340 U.S. at 39; accord Arizonans for Official English v. Arizona, 520 U.S. 43, 71
(1997); Ctr. for Biological Diversity, 566 F.3d at 805 (ESA claims became moot
on appeal, so “there is no further jurisdiction to proceed, and the district court’s
judgment under the ESA must be vacated”). “Vacatur ‘clears the path for future
relitigation’ by eliminating a judgment the loser was stopped from opposing on
direct review.” Arizonans, 520 U.S. at 71 (quoting Munsingwear, 340 U.S. at 40).

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Although a court may deny the equitable remedy of vacatur when “the party
seeking relief from the judgment below caused the mootness by voluntary action,”
U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 24 (1994), this
exception is inapplicable here. TransCanada “is not the party responsible for
mooting the case.” Humane Soc’y of the U.S. v. Kempthorne, 527 F.3d 181, 188
(D.C. Cir. 2008) (quoting Wyoming v. U.S. Dep’t of Agric., 414 F.3d 1207, 1213
(10th Cir. 2005)). The mootness was caused by the President, an independent actor
who was not even a party to the cases giving rise to the consolidated appeals. Thus,
vacatur is appropriate to ensure that TransCanada cannot be prejudiced in the
future by judgments that it was unable to appeal due to the President’s actions. See
Ctr. for Biological Diversity, 566 F.3d at 804-05 (vacating injunction barring
construction of condominium project that could harm bald eagles when plaintiffs’
ESA claim became moot because “FWS delisted the bald eagle”); cf. Wyoming v.
Zinke, 871 F.3d 1133, 1145-46 (10th Cir. 2017) (vacating judgment invalidating
BLM fracking rule when BLM “rendered [the] appeals prudentially unripe” by
proposing to rescind the regulation).
C. The District Court’s Injunction Should Be Dissolved.
As noted, vacatur addresses the res judicata or claim-preclusive effects of a
final judgment that a party like TransCanada is prevented from appealing. The
injunction, however, governs TransCanada’s rights to engage in activities now in

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the real world. Because the new Presidential Permit has mooted plaintiffs’ claims,
the injunction issued on the basis of those moot claims should be dissolved.
As a result of that injunction, TransCanada was unable to begin assembling
worker camps by March 15, 2019, and has now lost the 2019 construction season.
See Declaration of Norrie Ramsay (Appendix K) (Appx244-247). In light of the
new Presidential Permit, however, TransCanada has developed plans for a more
ambitious 2020 construction season to try to make up for as much of the lost time
as feasible. Id. at 247. Under those plans, TransCanada would begin assembling
worker camps as soon as possible, but cannot do so until the now-moot injunction
is dissolved. Id.
The President’s issuance of a new permit has eliminated any basis for the
continued maintenance of that injunction. The decision in Cablevision of Tex. III,
L.P. v. Oklahoma Western Telephone Co., 993 F.2d 208 (10th Cir. 1993), is
instructive. There, a district court enjoined a defendant from operating a cable
system without the necessary authorization from the Federal Communications
Commission (“FCC”), but then refused to lift the injunction after the defendant
obtained such authorization. The Tenth Circuit reversed, holding that, once the
FCC granted the necessary approval, “the basis for the injunction evaporated,” and
there was no “principled basis upon which the permanent injunction could be left
in place.” Id. at 210, 211. The same is true here. The alleged defects in State’s

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approval of a now-revoked permit provide no principled basis for enjoining
activities authorized under a new permit.
Indeed, leaving that injunction in place would not only be unjustified, it
would impermissibly afford IEN interim relief in its new lawsuit. In that suit, IEN
seeks both preliminary and permanent injunctive relief to prohibit the initiation of
“any activities in furtherance of the Project” under the new Presidential Permit.
Appx242-243. But “[a] preliminary injunction is an extraordinary remedy never
awarded as of right,” Winter v. NRDC, 555 U.S. 7, 24 (2008), and to obtain such
relief, IEN “must establish that [it] is likely to succeed on the merits, that [it] is
likely to suffer irreparable harm in the absence of preliminary relief, that the
balance of equities tips in [its] favor, and that an injunction is in the public
interest.” Id. at 20.
Before activities under the new Presidential Permit can be enjoined,
therefore, IEN must demonstrate, among other things, that it is likely to succeed on
the merits of entirely new—and quite novel—legal theories. Thus, although
Presidents, exercising their inherent constitutional powers, personally issued crossborder permits for nearly a century before delegating that task to State, IEN must
demonstrate that it is likely to succeed on its claims that the President’s direct
issuance of the new permit to TransCanada (1) violates the Property Clause of the
U.S. Constitution, (2) conflicts with Congress’s correlative power to regulate

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foreign and interstate commerce, (3) violates Executive Order 13337, and (4) is
ultra vires by virtue of certain unspecified provisions of the Federal Land Policy
Management Act. Appx236-242. While IEN may be entitled to pursue such claims,
it is not entitled to a preliminary injunction unless and until it shows it is likely to
succeed on the merits and the court has jurisdiction to enter the relief plaintiffs
request. If the current injunction, which rests on indisputably moot claims, is not
dissolved, IEN would be impermissibly relieved of one of the burdens it must
shoulder to obtain equitable relief from a federal court. Relieving IEN of that
burden would be particularly impermissible here, where it seeks injunctive relief
against the President himself.
RELIEF REQUESTED
For the foregoing reasons, the Court should dismiss the consolidated
appeals, vacate the district court’s judgments, dissolve its injunction and final
orders, and remand with instructions to dismiss the plaintiffs’ suits as moot.

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Respectfully submitted,
/s/ Peter R. Steenland
Peter R. Steenland, Jr. (psteenland@sidley.com)
James R. Bieke (jbieke@sidley.com)
Joseph R. Guerra (jguerra@sidley.com)
Peter R. Whitfield (pwhitfield@sidley.com)
Kathleen M. Mueller (kmueller@sidley.com)
SIDLEY AUSTIN LLP
1501 K Street, N.W.
Washington, D.C. 20005
(202) 736-8000
Attorneys for Intervenor-Defendants
Appellants TransCanada Keystone Pipeline
LP and TransCanada Corporation
April 8, 2019

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CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(5), I certify that the
foregoing Appellants’ Motion to Dismiss the Consolidated Appeals, Vacate the
District Court’s Judgments and Final Orders, Void Its Injunction, and Remand with
Directions to Dismiss as Moot is in 14-point proportionally spaced Times New
Roman font.
I further certify that this motion contains 3,945 words, excluding the items
listed in Federal Rule of Appellate Procedure 32(f), and thus meets the requirement
of Circuit Rules 27-1 and 32-3(b).
/s/ Kathleen M. Mueller

 Case: 18-36068, 04/08/2019, ID: 11256014, DktEntry: 35-1, Page 25 of 25

CERTIFICATE OF SERVICE
I hereby certify that on this 8th day of April, 2019, I served one copy of the
foregoing Appellants’ Motion to Dismiss the Consolidated Appeals, Vacate the
District Court’s Judgments, Void Its Injunction and Final Orders, and Remand with
Directions to Dismiss as Moot on all registered counsel in these consolidated cases
through the Court’s CM/ECF system.
/s/ Kathleen M. Mueller