The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This case, brought under the National Environmental Policy Act ("NEPA") and other federal environmental statutes, arises from decisions of the Bureau of Land Management ("BLM") and other federal agencies facilitating the construction of a refined petroleum products pipeline from Bloomfield, New Mexico to Salt Lake City, Utah. Comprising 220 miles of natural gas pipeline proposed to be converted to petroleum products use and 260 miles of newly constructed pipeline, the pipeline traverses primarily private lands but also crosses the Manti-LaSal and Uinta National Forests. Defendant-Intervenor, the Williams Pipe Line Company ("Williams"), a common carrier of petroleum products, seeks by construction of this pipeline to provide access to the potentially lucrative petroleum products market in Salt Lake City.
Primarily at issue in this case is the relationship between the proposed Williams pipeline and another proposed pipeline, set to run from Odessa, Texas to Bloomfield, New Mexico. The proponent of that project, Equilon Pipeline LLC ("Equilon"), formerly was partnered with Williams in a joint venture to construct a single pipeline encompassing both of the proposed segments and running all the way from West Texas to Salt Lake City. The full pipeline would connect Salt Lake City to the national petroleum products grid, including high-capacity refineries in West Texas and shipping terminals on the Texas Gulf Coast.
When BLM, the agency primarily responsible for reviewing applications for rights-of-way for utility corridors across federal lands, made it clear to Equilon and Williams that, for purposes of NEPA environmental review, BLM would consider the entire proposed Odessa to Salt Lake City pipeline as a single project, rather than two separate endeavors, Williams and Equilon terminated the joint venture and applied separately for rights-of-way to construct their respective pipelines across federal lands. BLM ultimately granted Williams' application for a right-of-way after preparing a final environmental impact statement ("FEIS") that did not address the environmental impacts of the proposed Equilon pipeline.
Plaintiffs in this case are Sinclair Oil, a petroleum products company with a current presence in the Salt Lake City market; several environmental groups concerned with pipeline safety; and individuals owning land on or near the proposed Williams pipeline route.*fn1
The plaintiffs raise a host of claims, foremost among which is the assertion that BLM improperly limited the scope of the Williams FEIS to exclude the Equilon pipeline, allowing the impact of the Equilon project to be considered in a separate environmental review process and preventing the full environmental impacts of the combined projects from being considered adequately in the ROW decision-making process. Plaintiffs also assert other defects in the FEIS and claim that BLM was required by law to prepare a supplemental environmental impact statement ("SEIS") based on information that came to light after the issuance of the FEIS. Plaintiffs raise additional claims under the Endangered Species Act, the Mineral Leasing Act, and the National Forest Management Act.
Before the Court are two sets of cross-motions for partial summary judgment and defendant-intervenor Williams Pipe Line Company's motion to dismiss Count 13 of the amended complaint. As provided in this Court's Order of March 31, 2005, the Court granted summary judgment for plaintiffs on Count 1 of their amended complaint, which alleges that BLM improperly segmented its environmental analysis of the Williams project, and remanded the matter to BLM for the preparation of a Supplemental Environmental Impact Statement addressing only the issue of whether the Williams and Equilon pipeline projects are "connected actions" under 40 C.F.R. § 1508.25(a)(1). The Court granted summary judgment for defendants on all other counts. This Opinion explains the reasoning underlying the Court's Order of March 31, 2005.
A. History of the Williams, Equilon, and Aspen Projects
This case arises from defendant-intervenor Williams Pipe Line Company's effort to construct a petroleum products pipeline providing access to the Salt Lake City, Utah petroleum products market. Salt Lake City historically has been isolated from the national petroleum products grid. At the time the Williams project was initiated, nearly all the refined petroleum products in the state of Utah were supplied by five small in-state refineries and one Wyoming refinery owned by plaintiff Sinclair Oil. As a result, prices for gasoline and other petroleum products in Utah are considerably higher than they are in most parts of the country connected to the national grid. Williams asserts that if the Utah market were connected to the massive refineries on the Texas Gulf Coast, competition would increase and prices would drop considerably.
Williams proposes to build a petroleum products pipeline connecting the Salt Lake City area with Bloomfield, New Mexico, a town near the "Four Corners" area (where Utah, New Mexico, Arizona, and Colorado meet), which also is not currently connected to the national petroleum products grid. Two hundred twenty miles of the line would be converted from an existing natural gas pipeline extending from Bloomfield to Crescent Junction, Utah. The 260-mile section from Crescent Junction to Salt Lake City, however, would consist of newly constructed pipe, 96.95 miles of which would traverse federal lands, including the Manti-LasSal and Uinta National Forests. See U.S. Department of the Interior, Record of Decision for the Williams Petroleum Products Pipeline Project (Oct. 12, 2001) ("Oct. 2001 ROD") at 1, A.R. vol. 6 at 123.
The Mineral Leasing Act, 30 U.S.C. §§ 181 et seq., requires Williams to obtain a right-of-way ("ROW") from the Bureau of Land Management, a subdivision of the Department of the Interior ("DOI"), before it can construct, operate, or maintain a pipeline on federal lands.*fn2
Williams filed an initial ROW application with the Utah office of BLM in 1998. See Oct. 2001 ROD at 1, A.R. vol. 6 at 128. Although that application pertained only to the segment of the pipeline running from Thompson Springs, Utah to the Salt Lake City area, the application stated that this pipeline segment was part of a larger project to build a pipeline extending all the way from southeast Texas to "the Wasatch Front area of Utah," in the vicinity of Salt Lake City. See Supplement to Application for Transportation and Utility Systems and Facilities on Federal Lands (Nov. 6, 1998) ("Nov. 1998 Williams Application") at 1, A.R. vol. 1 at 324. A separate application for the New Mexico segment of the project was to be filed with BLM in Farmington, New Mexico. See id.
In February 1999, Williams and another company, Equilon Pipeline LLC, formed a joint venture, Aspen Products Pipeline LLC ("Aspen"), to construct a petroleum products pipeline from Odessa, Texas to Salt Lake City. See Defendant-Intervenors' Statement of Points and Authorities in Opposition to Plaintiffs' Motion for Partial Summary Judgment and in Support of Motion for Summary Judgment and Motion to Strike ("Def-Intervs'. Opp. 1st Mot. Summ. J.") at 3-4. A March 15, 1999 amendment to the Williams ROW application redesignated Aspen as the proponent of the project and extended the northern terminus of the line slightly. See id. at 4; Letter from John R. Thomas to Mark Mackiewicz (March 15, 1999), Re: Williams Pipe Line Company Revised Right-of-Way Application, A.R. vol. 1 at 235. Also under the aegis of Aspen, Equilon filed a ROW application with the New Mexico office of BLM for the southern segment of the pipeline, running from Odessa, Texas, to Bloomfield.*fn3
The National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq., provides that a federal agency must prepare an environmental impact statement for "proposals for... major federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C); see also 40 C.F.R. § 1502.3. NEPA and its implementing regulations require the agency preparing an EIS to consider carefully the scope of its analysis, defined by Council on Environmental Quality ("CEQ") regulations as "the range of actions, alternatives, and impacts to be considered in an environmental impact statement." 40 C.F.R. § 1508.25.*fn4 Actions that are "connected" or "cumulative" in impact should be discussed in the same environmental impact statement; actions that are "similar" may be analyzed in the same statement. 40 C.F.R. § 1508.25(a).
After meeting with Williams and Equilon, and over the companies' strenuous objections, BLM decided that rather than prepare separate EIS's for the northern and southern segments of the pipeline, BLM would for NEPA purposes examine the entire Aspen pipeline from Odessa to Salt Lake City as a single project. See Letter from Sally Wisely, Director, Utah Office of BLM, to Tim Powell, Williams Energy Services (Feb. 1, 2000) ("Feb. 2000 Wisely Letter"), A.R. vol. 8 at 449. The Environmental Protection Agency, the Council on Environmental Quality, Sinclair Oil (a plaintiff here), and other interested parties also had submitted comments urging BLM to examine the entire Aspen project in a single EIS. See Statement of Uncontested Facts in Support of Motion of Plaintiffs and Plaintiff-Intervenors for Partial Summary Judgment ("Pls'. Facts") ¶¶ 8-13. Because the two segments were to be considered as part of a single environmental review process, construction of either segment could not begin until environmental review of the entire pipeline was completed.
As a direct consequence of BLM's decision to prepare a single EIS, in March 2000 Williams and Equilon decided to terminate the Aspen joint venture and construct separately the northern and southern segments of the proposed pipeline. Williams filed another amended application to "clarify" that its pipeline would end in Bloomfield and that Williams would "no longer include Equilon's proposed pipeline as an alternative source of supply" for its line. See Letter from Tim Powell to Sally (March 8, 2000) ("Mar. 2000 Powell Letter"), A.R. vol. 8 at 451. Williams further requested that its ROW application be reviewed independently of any ROW application filed by Equilon. Id. The amended ROW application described the proposed project as "a pipeline to transport refined petroleum products from Bloomfield, New Mexico to the Wasatch Front area of Utah." See Application for Transportation and Utility Systems and Facilities on Federal Lands, Amended, March 2000 (March 8, 2000), A.R. vol. 8 at 458. Equilon also filed an amended ROW for its segment of the pipeline, still proposed to extend from Odessa to Bloomfield. See Pls'. Facts ¶ 18.
On April 19, 2000, DOI published in the Federal Register a notice of intent to proceed with an EIS addressing the Williams pipeline, as well as natural gas pipelines proposed by Questar Pipeline Company ("Questar") and Kern River Gas Transmission Company ("Kern"), which would traverse largely the same route across federal lands as the Williams line. See 65 Fed. Reg. 21006 (April 19, 2000). After notice and public comment, on February 9, 2001,*fn5 BLM completed the draft environmental impact statement ("DEIS") for the Williams project. See Williams, Questar, & Kern River Pipeline Projects: Draft Environmental Impact Statement (March 2001) ("DEIS"), A.R. vol. 2 at 1. The DEIS did not include analysis of the environmental effects of the Equilon proposal.
The omission of Equilon from the DEIS elicited negative comments from numerous parties, including some of the plaintiffs in this action. The EPA, required by NEPA and the Clean Air Act to comment on the action, see 42 U.S.C. § 7609; 42 U.S.C. § 4332(2)(C), objected to the DEIS on this and other grounds. In an April 16, 2001, letter to BLM submitted during the notice and comment period, EPA raised the issue of "segmentation" in the DEIS:
The DEIS needs to analyze additional connected actions that would include impacts related to the Equilon pipeline.... EPA was informed by BLM and public individuals that these two "separate projects" were once proposed as one project.... BLM and Williams have not provided any information in the DEIS such as information on supply contracts that would support the argument that the two pipelines are not connected.
See Letter from Cynthia Cody, Chief, NEPA Unit, Ecosystems Protection Program, EPA to LaVerne Steah, Project Manager, Bureau of Land Management (April 16, 2001) ("Apr. 2001 Cody Letter") at 5, A.R. vol. 8 at 66.
On June 1, 2001, BLM issued a final environmental impact statement for the Williams project. See Plaintiffs' Amended Complaint ("Am. Compl.") ¶ 8. The FEIS acknowledged the receipt of many public comments arguing for the consideration of the Williams and Equilon pipelines in a single EIS on the grounds that they were either "connected" or "cumulative" actions. See Final Environmental Impact Statement for the Questar, Williams, & Kern River Pipeline Project (June 1, 2001) ("FEIS") § 22.214.171.124 at 1-30. BLM defended its decision to analyze the projects separately, however, on four grounds. First, "the Williams project would not automatically trigger other actions that require environmental impact statements," as the Equilon project and its environmental analysis already were underway. Id. Second, "[t]he Williams project can and would proceed regardless of whether other actions are taken previously or simultaneously.... Williams has stated that it can acquire a supply of products for its pipeline even if the Equilon project is not constructed." Id. Third, "[t]he Williams project is not an interdependent part of a larger action and depends on the larger action for its justification." Finally, although BLM "acknowledge[d] that the Equilon project is a related or foreseeable project,... [t]he area of geographic overlap between the two projects is very small, and the potential additive effects on resources are very limited." Id.
On June 20, 2001, EPA sent a letter to BLM requesting documentation supporting the argument that the Equilon and Williams pipelines were not connected projects, and pointing out that "the only difference" between the single Aspen application and the separate Williams/Equilon applications "is that the two companies have dissolved the previous [partnership] agreement. CEQ does not require a formal agreement in order for two projects to be defined as connected actions." See Letter from Cynthia Cody, Chief, NEPA Unit, Ecosystems Protection Program, EPA to LaVerne Steah, Project Manager, Bureau of Land Management at 2 (June 20, 2001) ("June 2001 Cody Letter"), A.R. vol. 8 at 69-70. BLM received no further written communication from EPA on the DEIS or FEIS.
Relying on the environmental analysis in the FEIS, on June 5, 2001, the Fish and Wildlife Service ("FWS") issued a Biological Opinion on the effect of the Williams project on numerous plant and animal species in the project area, in accordance with Section 7 of the Endangered Species Act, 16 U.S.C. §§ 1531 et seq. The Biological Opinion concluded that the Williams project would not have adverse effects on most of the species considered, and that the pipeline "may affect, but is not likely to adversely affect the endangered Colorado pikeminnow, razorback sucker, humpback chub, and bonytail in Colorado." See Final Formal Section 7 Consultation for the Utah Portion of the Williams Pipe Line Company Proposed Pipeline Extending From Bloomfield, New Mexico to Salt Lake City, Utah (June 5, 2001) ("Bio. Op.") at 1-2, A.R. vol. 6 at 35. FWS premised this conclusion partially on Williams' commitment to numerous measures designed to minimize the impact of pipeline construction and operation on listed species. Id. at 2.
The required environmental reviews having been substantially completed, Williams needed the approval of one more agency before it could obtain a ROW from BLM. The National Forest Management Act, 16 U.S.C. §§ 1600 et seq., requires preparation of a Land and Resource Management Plan ("Forest Plan") governing the management of resources in each national forest. The existing plan for the Manti-La Sal National Forest, enacted in 1986, provided for a 200 to 500 foot wide utility corridor through the forest, in which underground pipeline facilities might be constructed. See Defendants' Memorandum of Points and Authorities in Support of Cross-Motion for Summary Judgment and in Opposition to Plaintiffs' Motion for Summary Judgment (March 7, 2003) ("Defs'. 2d Mot. Summ. J.") at 3-4. The FEIS for the Williams, Questar, and Kern projects, however, had identified substantial landslide risks in certain areas crossed by this utility corridor and recommended re-routing the proposed pipelines around these areas. See FEIS §§ 2.3.3 to 2.4 at 2-62 to 2-66. Use of this route, however, would require amendment of the Manti-La Sal Forest Plan to reroute portions of the utility corridor.
On July 5, 2001, the United States Forest Service ("USFS"), a division of the United States Department of Agriculture ("USDA"), issued a Record of Decision ("ROD") with respect to the Questar and Kern natural gas pipelines, approving the relocation of two segments of the utility corridor to allow short segments of the natural gas pipelines to be re-routed to avoid landslide-prone areas. See Record of Decision and Finding of Non-Significant Amendment for the Manti-LaSal and Uinta National Forest Land and Resource Management Plan Amendments (July 5, 2001) ("July 2001 ROD"), A.R. vol. 3 at 410. Although it considered the "cumulative effects" of the Williams pipeline proposal, the July 2001 ROD "[did] not make a decision regarding the location of a utility corridor for the refined petroleum products pipeline (Williams) proposal." See July 2001 ROD at 2.
On August 3, 2001, USFS issued another ROD amending the Manti-La Sal Forest Plan to allow the Williams petroleum products pipeline to follow the same amended corridor as the two natural gas pipelines. See Record of Decision and Finding Non-Significant Amendment for the Manti-La Sal National Forest Land and Resource Management Plan Amendment (August 3, 2001) ("Aug. 2001 ROD"), A.R. vol. 5 at 407. As part of this ROD, USFS made a "Finding of Non-Significant Amendment" ("FONSA") pursuant to former 36 C.F.R. § 219.10(f) (1997) (amended Jan. 5, 2005), allowing amendment of the Forest Plan by means of an expedited administrative process, rather than the extended procedure required for development and approval of a new forest plan. See Aug. 2001 ROD at 6. Plaintiffs administratively appealed the Forest Service ROD, but their appeal was denied on June 26, 2002. See Letter from Elizabeth G. Close, Acting Deputy Regional Forester, to Melvin Goldstein (June 26, 2002), A.R. vol. 52 at 550-53; Federal Defendants' Memorandum of Points and Authorities in Support of Cross-Motion for Summary Judgment and in Opposition to Plaintiffs' Motion for Summary Judgment (May 23, 2003) ("Fed. Defs'. 2d Mot. Summ. J.") at 9.
Finally, on October 12, 2001, DOI issued a Record of Decision granting Williams' request for a right-of-way. The ROD considered many of the environmental impacts analyzed in the FEIS, and "adopt[ed] many stringent measures to minimize risks [resulting] in a project that reduces risks to an acceptable level that is within the petroleum products industry's norms." See Oct. 2001 ROD at 9.
B. Proceedings in this Court
On November 9, 2001, plaintiffs filed a complaint for declaratory and injunctive relief against BLM, DOI, and officials thereof. The complaint asserted eleven claims under NEPA, the Administrative Procedure Act, the Mineral Leasing Act, the Endangered Species Act, and the Forest Management Act, and asked the Court to enjoin any further action with respect to the Williams pipeline pending preparation of a revised EIS and ROD. On November 28, 2001, the Court granted Williams' motion to intervene as a defendant. With the consent of the existing parties to the action, Carol Parker and Citizens for Safe Pipelines, Inc. ("CSP") were allowed to intervene as plaintiffs on March 18, 2002.
The federal defendants filed the administrative record supporting the challenged decisions on February 15, 2002, but the record has since been supplemented numerous times by additional submissions from both sides. The Court also granted, in part, plaintiffs' request to conduct limited discovery to complete the administrative record, to allow plaintiffs the opportunity to substantiate claims of bad faith by BLM in its environmental review of the Williams project. See Memorandum Opinion and Order (July 31, 2002).
On March 25, 2002, plaintiffs and plaintiff-intervenors filed a motion for partial summary judgment on Counts 1 through 8 of the complaint.*fn6 Defendants and defendant-intervenors filed cross-motions seeking summary judgment on all counts on April 29, 2002. Williams' cross-motion also asked the Court to strike certain affidavits submitted by plaintiffs because they were outside the administrative record, and not subject to any exception to the general rule that in NEPA cases the Court's review should be limited to the administrative record. See Def-Intervs'. Opp. 1st Mot. Summ. J. at 8-10.*fn7
In July 2002, plaintiffs and plaintiff-intervenors sought and were granted leave to amend their complaints to add additional claims and to join USFS as an additional defendant. Counts 14, 15, and 16 challenge the legality of USFS's August 2001 ROD under the National Forest Management Act, 16 U.S.C. §§ 1600 et seq., and the Forest Service's own regulations, including the "Roadless Area Rule" restricting the construction of roads in certain designated areas of National Forests. The amended complaint also accuses BLM of acting arbitrarily and capriciously in refusing to prepare a supplemental EIS for the Williams project, which plaintiffs claim was necessitated by factual developments since preparation of the FEIS. On November 1, 2002, Williams filed a motion to dismiss this count (Count 13) for failure to state a claim, under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
On January 23, 2003, plaintiffs and plaintiff-intervenors filed another motion for partial summary judgment, this time on Counts 12 through 16 of the amended complaint. Defendants and defendant-intervenors again filed cross-motions for summary judgment on all claims. Pending before the Court, then, are the parties' and intervenors' six motions for summary judgment and Williams' motion to dismiss Count 13 of the amended complaint.
Under the Administrative Procedure Act ("APA"), a reviewing court may only set aside agency actions, findings, or conclusions when they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A). An agency action is arbitrary and capricious if an agency has "entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs'. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983). Especially in complex, technical areas, there is a strong presumption in favor of upholding agency decisions. See Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 375-78 (1989). Nonetheless, a reviewing court must undertake a "thorough, probing, in-depth review" of the agency's decision and then decide whether it was "based on a consideration of the relevant factors and whether there has been a clear error of judgment." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415-16 (1971). Review of agency action generally "is to be based on the full administrative record that was before the [agency] at the time [it] made [its] decision." Id. at 420. If the agency has "considered the relevant factors and articulated a rational connection between the facts found and the choice made," its decision must be upheld. Baltimore Gas & Elec. Co. v. Natural Resources Defense Counsel, 462 U.S. 87, 105 (1983).*fn8
For challenges to an agency's construction of the statutes that it administers, the Court's review must be particularly deferential. The Court must defer to the agency's interpretation of a statute that it implements "so long as it is reasonable, consistent with the statutory purpose, and not in conflict with the statute's plain language." OSG Bulk Ships v. United States, 132 F.3d 808, 814 (D.C. Cir. 1998) (quoting Coal Employment Project v. Dole, 889 F.2d 1127, 1131 (D.C. Cir. 1989)); see Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 845 (1984); Davis v. Latschar, 83 F. Supp.2d 1, 5 (D.D.C. 1998), aff'd, 202 F.3d 359 (D.C. Cir. 2000).
An agency's interpretation of its own regulations also is entitled to substantial deference by the courts. Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994); Wyoming Outdoor Council v. United States Forest Serv., 165 F.3d 43, 52 (D.C. Cir. 1999). Unless "plainly erroneous or inconsistent with the regulation," the agency's construction of its own regulation is controlling. United States v. Larionoff, 431 U.S. 864, 872 (1977); see also Stinson v. United States, 508 U.S. 36, 45 (1993); Wyoming Outdoor Council v. United States Forest Serv., 165 F.3d at 52; Everett v. United States, 158 F.3d 1364, 1367 (D.C. Cir. 1998); Amerada Hess Pipeline Corp. v. Federal Energy Regulatory Comm'n,117 F.3d 596, 600 (D.C. Cir. 1997); Davis v. Latschar, 83 F. Supp.2d at 5. The Court does not, however, owe any deference to BLM's interpretation of NEPA or CEQ regulations "because NEPA is addressed to all federal agencies and Congress did not entrust administration of NEPA to the [BLM] alone." Grand Canyon Trust v. Federal Aviation Admin., 290 F.3d 339, 342 (D.C. Cir. 2002).
B. NEPA Claims (Counts 1-6, 8, 12-13)
Plaintiffs argue that the FEIS prepared by BLM fails in a variety of ways to comply with NEPA's requirements. Plaintiffs claim that because the Forest Service's July 2001 and August 2001 RODs amending the Manti-LaSal Forest Plan, and DOI's ROD granting Williams' ROW application all relied on the FEIS, a finding of insufficiency in the preparation of the FEIS calls into question each of these decisions.*fn9
NEPA requires that all "proposals for 'major federal action' 'significantly affecting the quality of the environment' must be accompanied by a detailed discussion of the reasonably foreseeable effects on the environment of reasonable alternative courses of action." Taxpayers Watchdog v. Stanley, 819 F.2d 294, 298 (D.C. Cir. 1987) (quoting Natural Resources Defense Council v. U.S. Nuclear Regulatory Comm'n, 606 F.2d 1261, 1269 (D.C. Cir. 1979)). This requirement is "essentially procedural"; as long as the agency's decision is "fully informed" and "well-considered," it is entitled to judicial deference. Natural Resources Defense Council v. Hodel, 865 F.2d 288, 294 (D.C. Cir. 1988) (quoting North Slope Borough v. Andrus, 642 F.2d 589, 599 (D.C. Cir. 1980) and Izaak Walton League of America v. Marsh, 655 F.2d 346, 371 (D.C. Cir. 1981)). The Court's role is to ensure that the agency takes a "hard look" at the environmental consequences of an action, not to interject its own judgment as to the course of action to be taken. Kleppe v. Sierra Club, 427 U.S. 390, 410 & n.21 (1976); see also Nat'l Committee for the New River v. Federal Energy Regulatory Comm'n, 373 F.3d 1323, 1327 (D.C. Cir. 2004) ("An environmental impact statement is reviewed to 'ensure that the agency took a hard look at the environmental consequences of its decision to go forward with the project.'").*fn10
1. Purpose and Need for the Williams Project and Consideration of No Action Alternative (Counts 2-4)
NEPA and CEQ regulations require every EIS to consider the "purpose and need" for the proposed action. According to the regulations, "[t]he statement shall briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action." 40 C.F.R. § 1502.13. Count 2 of the amended complaint asserts that BLM violated NEPA and the CEQ regulations "by approving the Williams project without properly assessing the purpose and need of the project," in that it "failed to assess and analyze uncontradicted data that demonstrates that the petroleum products requirements of Salt Lake City would be satisfactorily met for the next ten years even in the absence of the Williams petroleum pipeline project." See Am. Compl. ¶¶ 213-19.*fn11
Specifically, plaintiffs claim that BLM's consideration of the purpose and need for the project relied entirely on a December 2000 economic study undertaken by the Utah Office of Energy and Resource Planning ("UOERP"), demonstrating that the Williams pipeline would be necessary to alleviate future supply imbalances in petroleum products in the Salt Lake City market. See Am. Compl. ¶ 95. The study's supply calculations, plaintiffs assert, failed to reflect the recent expansion of an existing pipeline from Sinclair, Wyoming to Salt Lake City or the ability of Utah refineries to expand their production capacity to meet future demand. Plaintiffs claim that an updated UOERP study reflecting this new information was presented to BLM in May 2001, and that BLM improperly ignored this new information in the preparation of the June 2001 FEIS. See id. ¶¶ 96-97. Had BLM considered this information, plaintiffs argue, it would have been forced to conclude that the Williams project was "economically infeasible." See id. ¶ 98. The public notice and comment period for the draft EIS, however, had ended on April 16, 2001, weeks before this additional information was submitted to BLM. See Draft EIS for a Refined Petroleum Products Pipeline, Natural Gas Pipelines and Utility Corridor Analysis and Plan Amendments, 66 Fed. Reg. 11311, 11311 (Feb. 23, 2001). The Court concludes that the FEIS, released on June 1, 2001, is not defective for failing to incorporate this last-minute submission because the submission was presented after the close of the comment period. DOI, in turn, did not err in relying on the FEIS, and Count 2 of plaintiffs' amended complaint fails.
In Counts 3 and 4 of the amended complaint, plaintiffs assert that in preparing the FEIS, BLM failed adequately to discuss the "no action alternative" to constructing the Williams pipeline, and that DOI improperly failed to select it. See Am. Compl. ¶¶ 220-31; Pls'. Part. Mot. Summ. J. at 29. Plaintiffs assert that BLM was compelled to adopt this alternative because "there is no justifiable basis on which BLM could have reasonably concluded that the Williams project should succeed." Am. Compl. ¶ 229.
In addition to "specify[ing] the underlying purpose and need to which the agency is responding," an agency preparing an EIS must "rigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated." 40 C.F.R. §§ 1502.13, 1502.14. The courts have recognized that these requirements are interrelated because "the goals of an action delimit the universe of the action's reasonable alternatives." City of Burlington v. Busey, 938 F.2d 190, 195 (D.C. Cir. 1991). The setting of the objectives and the range of alternatives to be considered by an agency are governed by a "rule of reason." City of Grapevine v. U.S. Dept. of Transp., 17 F.3d 1502, 1506 (D.C. Cir. 1994); City of Burlington v. Busey, 938 F.2d at 195. All that NEPA requires is that the agency weigh all reasonable alternatives and come to a fullyinformed decision. Davis v. Latschar, 83 F. Supp.2d at 8 (citing Strycker's Bay Neighborhood Council v. Karlen, 444 U.S. 223, 227-28 (1980)).
The "reasonable alternatives" an agency must consider in preparing an EIS must include the alternative of taking no action whatsoever. 40 C.F.R. § 1502.14. The purpose of discussing the "no action alternative" is "to facilitate reader comparison of the beneficial and adverse impacts of other alternatives to the applicant doing nothing." 40 C.F.R. § 6.203(c). The Council on ...