United States District Court, D. Columbia.
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For Sierra Club, National Wildlife Federation, Plaintiffs: James G. Murphy, LEAD ATTORNEY, PRO HAC VICE, NATIONAL WILDLIFE FEDERATION, Montpelier , VT; Joshua R. Stebbins, LEAD ATTORNEY, SIERRA CLUB ENVIRONMENTAL LAW PROGRAM, Washington , DC; Eric E. Huber, Doug Hayes, SIERRA CLUB ENVIRONMENTAL LAW PROGRAM, Boulder , CO.
For United States Army Corps of Engineers, Thomas P. Bostick, in his official capacity as Commanding General and Chief of Engineers of the U.S. Army Corps of Engineers, Richard A. Pratt, in his official capacity as Commander and District Engineer of the U.S. Army Corps of Engineers Tulsa District, Mark Deschenes, in his official capacity as District Commander of the U.S. Army Corps of Engineers Rock Island District, Andrew D. Sexton, in his official capacity as District Commander of the U.S. Army Corps of Engineers Kansas City District, Christopher Hall, in his official capacity as St. Louis District Commander of the U.S. Army Corps of Engineers, Anthony Foxx, in his official capacity as Secretary of the United States Department of Transportation, Cynthia L. Quarterman, in her official capacity as Administrator of the United States Department of Transportation Pipeline and Hazardous Materials Safety Administration, United States Department of Transportation Pipeline And Hazardous Materials Safety Administration, Daniel M. Ashe, in his official capacity as Director of the United States Fish and Wildlife Service, United States Fish And Wildlife Service, Sally Jewell, in her official capacity as Secretary of the Interior, Kevin K. Washburn, in his official capacity as Assistant Secretary Indian Affairs, United States Department of Interior Bureau of Indian Affairs, Gina Mccarthy, in her official capacity as Administrator of the Environmental Protection Agency, United States Environmental Protection Agency, Defendants: Eileen T. McDonough, Ty Bair, LEAD ATTORNEYS, U.S. DEPARTMENT OF JUSTICE, Washington , DC.
For All Federal Defendants, Defendant: Eileen T. McDonough, Ty Bair, LEAD ATTORNEYS, U.S. DEPARTMENT OF JUSTICE, Washington , DC; Wayne Holden Williams, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington , DC.
For Enbridge Pipelines (Fsp) L.L.C., Intervenor Defendant: David Hyler Coburn, LEAD ATTORNEY, Cynthia Lucille Taub, STEPTOE & JOHNSON, L.L.P., Washington , DC.
KETANJI BROWN JACKSON, United States District Judge.
Plaintiffs Sierra Club and the National Wildlife Federation (" Plaintiffs" ) have sued several federal agencies and their officers (" Federal Defendants" ) in an attempt to enjoin the construction of the Flanagan South Pipeline (the " FS Pipeline" ), a domestic oil pipeline that, as planned, will transport tar sands crude oil from Pontiac, Illinois, through the states of Missouri and Kansas, and ultimately into Cushing, Oklahoma. Because a private company is constructing the 589-mile pipeline on mostly privately-owned land that is entirely within the territorial borders of the United States, no federal statute authorizes the federal government to oversee or regulate the construction project. Nevertheless, Plaintiffs allege that the Federal Defendants have failed to conduct an assessment of the environmental impact of the entire FS Pipeline and, as a result,
have violated the National Environmental Protection Act (" NEPA" ), 42 U.S.C. § § 4321-4347 (2012), the Clean Water Act (" CWA" ), 33 U.S.C. § § 1251-1387 (2013), and the Administrative Procedure Act (" APA" ), 5 U.S.C. § § 701-706 (2013). Plaintiffs have filed a six-count complaint alleging various statutory violations, but as Plaintiffs themselves have cogently summarized it, " [t]he central issue in this case is whether any federal agency is required to analyze the impacts of the [nearly] 600-mile long Flanagan South tar sands oil pipeline, including the risks and impacts of oil spills, pursuant to [NEPA] before [the pipeline] can be built and operated." (Pls.' Mot. to Suppl. & Amend First Am. Compl. (" Pls.' First Mot. to Amend" ), ECF No. 83, at 2.)
This Court first addressed the question of whether any federal agency had a duty to conduct an environmental review of the entire privately-constructed FS Pipeline in the context of a motion for a preliminary injunction that Plaintiffs filed on September 4, 2013--a mere 13 days after the August 22nd filing of Plaintiffs' First Amended Complaint. For the purposes of that preliminary injunction motion, this Court analyzed, among other things, whether or not Plaintiffs had a likelihood of success on the merits of their central argument, and the Court concluded that Plaintiffs were unlikely to be able to establish successfully that the Federal Defendants had violated their obligations under NEPA, the CWA, or the APA. See Sierra Club v. U.S. Army Corps of Eng'rs, 990 F.Supp.2d 9, 25-38 (D.D.C. 2013) (" PI Opinion" ); see also id. at 33-44 (finding, additionally, that Plaintiffs had failed to demonstrate irreparable harm, and that the balance of harms and public interest did not necessarily weigh in Plaintiffs' favor).
Before this Court at present are several motions that focus this Court's attention on the merits of this matter once again. The Federal Defendants and authorized Intervenor Enbridge Pipelines (FSP), LLC (" Enbridge" )--the private company that is constructing the FS Pipeline--have filed motions to dismiss parts of Plaintiffs' first amended complaint on ripeness grounds and for failure to state a claim, seeking dismissal of the complaint's allegations that certain agencies have violated a duty to conduct an environmental review of the pipeline. Each party has now also filed a cross-motion for summary judgment, with Plaintiffs maintaining that the administrative record conclusively establishes the alleged NEPA, CWA, and APA violations, and the Federal Defendants and the Intervenor arguing that the undisputed facts unquestionably establish the opposite.
Setting aside the ripeness issue in light of subsequent developments in this case, this Court will GRANT IN PART the Federal Defendants' and Intervenor's Partial Motions to Dismiss, and will GRANT the Federal Defendants' and Intervenor's cross-motions for summary judgment with respect to all remaining claims, because the totality of the record before the Court
indicates that there are no genuine issues of material fact regarding Plaintiffs' claims and that Defendants are entitled to judgment as a matter of law. The Court's reasons for this ruling are explained further below, but the gist of the Court's conclusion is that Plaintiffs are wrong to insist that any federal agency had an obligation under NEPA or any other statute to conduct an environmental review of the impact of the entire FS Pipeline before Enbridge broke ground on the project, given that the Federal Defendants have permitting authority over only small segments of this private pipeline project and none of the defendant agencies, alone or in combination, have authority to oversee or control the vast portions of the FS Pipeline that traverse private land. Two separate orders--one that implements the Court's findings herein and another that addresses the Plaintiffs' futile motions to amend the complaint--will issue in conjunction with this Memorandum Opinion.
This Court's PI Opinion contains a lengthy and detailed discussion of the factual background of this case, as well as the complex web of statutes and regulations that undergird Plaintiffs' claims. See Sierra Club, 990 F.Supp.2d at 13-24. The Court will not reproduce that discussion in full here; it assumes familiarity with the prior description and expressly incorporates it herein. What is necessary for present purposes is a short restatement of the key facts and a review of the complaint's basic claims. In addition, the instant opinion includes a brief recitation of the procedural history that followed the PI Opinion.
A. Basic Facts That Underlie Plaintiffs' Core Complaint
As noted, Enbridge is a private company that constructs oil pipelines. Sierra Club, 990 F.Supp.2d at 13. Congress has not authorized the federal government to oversee the construction of private domestic oil pipelines; consequently, Enbridge has undertaken to build the planned FS Pipeline largely on its own, primarily by securing easements from the landowners who own the property over which the pipeline will operate. At the time of the PI Opinion, Enbridge had already approached more than 1,700 private land owners, and had " secured 96% of the land rights" along the 589-mile FS Pipeline route. Id.
Enbridge has also sought federal approval for constructing the FS Pipeline over the 27.28 total miles of federal land and waterways that the FS Pipeline route traverses. Id. To this end, the Army Corps of Engineers (the " Corps" ) has verified pursuant to the National Permitting System that the 13.68 total miles of FS Pipeline water crossings-- which incorporate extensive mitigation measures--are consistent with a pre-existing national permit that pertains to construction projects that are likely to have " minimal" separate or cumulative adverse effects on the environment. 33 U.S.C. § 1344(e)(1); see also Reissuance of Nationwide Permits, 77 Fed.Reg. 10,184, 10,271 (Feb. 21, 2012). The Corps is also the agency responsible for considering Enbridge's request for an easement to construct and operate the pipeline over 1.3 total miles of federal land along the proposed route, including at points along the Mississippi River in Illinois and Missouri and the Arkansas River in Oklahoma. Because NEPA mandates that an agency evaluate the environmental consequences of any " major federal action  significantly affecting the quality of human environment," 42 U.S.C. § 4332(2)(C), the Corps has assessed the environmental impact of permitting Enbridge to construct the FS Pipeline over that small portion of federal land and has granted Enbridge
construction easements over that property. ( See Notice of Issuance of Easements by the Army Corps of Engineers, ECF No. 90.) For its part, the Bureau of Indian Affairs (" BIA" ) has entertained a similar Enbridge request for an easement regarding the 12.3 total miles of Native American land that the pipeline crosses, and has also issued easements for the FS Pipeline to be constructed across those lands after conducting an Environmental Assessment (" EA" ) and making a Finding of No Significant Impact (" FONSI" ). ( See Notice of Issuance of Easements by the Bureau of Indian Affairs, ECF No. 81.) Moreover, both the Corps and the BIA consulted the Fish and Wildlife Service (" FWS" ) as a required part of their respective easement-request review processes, and as a result, the FWS issued a Biological Opinion and incidental take statement related to potential impacts of the construction of the FS Pipeline on certain endangered species.
Notably, to date, although some of the federal agencies that have considered Enbridge's requests regarding aspects of the FS Pipeline have reviewed the environmental impact of the pipeline's construction and operation over the particular geographical areas that are under the agency's jurisdiction-- e.g., the BIA has issued an EA/FONSI regarding the 12.3 miles of Native American lands over which the pipeline will cross-- no federal agency has interpreted NEPA as a mandate that it undertake a comprehensive environmental impact study of the entire 589-mile FS Pipeline.
Plaintiffs' currently operative First Amended Complaint contains six claims, each of which, in essence, points to the same underlying contention: that some federal agency, if not all of them collectively, had a statutory duty to conduct a NEPA review of the entire FS Pipeline. The complaint's Claims II(a), II(b), and III address individually certain federal agencies that Plaintiffs believe had such a NEPA duty, homing in on the particular agency activities that Plaintiffs allege were major federal actions that should have prompted the subject agency to conduct an environmental review of the entire FS Pipeline pursuant to that statute. These agency activities consist of the Corps's verifications of the FS Pipeline's water crossings pursuant to Nationwide Permit 12 (" NWP 12" ) (Claim II(a)) ( see Am. Compl., ECF No. 7, ¶ ¶ 156-160); the Corps's consideration (and eventual issuance) of easements for construction over the federal land under its jurisdiction (Claim II(b)) ( see id. ¶ ¶ 161-164); and the FWS's issuance
of a Biological Opinion and incidental take statement (Claim III) ( see id. ¶ ¶ 165-171). In addition, Plaintiffs contend that the Pipeline and Hazardous Materials Safety Administration (" PHMSA" ) eventually will be called upon to approve an oil spill response plan that Enbridge will be required by law to submit with respect to the FS Pipeline at some point in the future, and that this potential future determination of the PHMSA should also be considered a major federal action that triggered a NEPA obligation on the part of that agency to conduct an environmental review of the pipeline prior to its construction (Claim IV) ( see id. ¶ ¶ 172-179). In Claim V, Plaintiffs' complaint approaches the same target from a different angle, by expressly maintaining that, whether or not each individual agency's actions triggered a duty for any particular agency to conduct an environmental review of the entire FS Pipeline under NEPA, the combined actions of all of the federal agencies that had some connection to the FS Pipeline collectively constitute major federal action giving rise to an obligation to conduct a NEPA review of the FS Pipeline as a whole and to appoint a " lead agency" to undertake that responsibility ( id. ¶ ¶ 180-189). Finally, in Claim VI, Plaintiffs make the ancillary argument that the Corps's verification determinations violated the CWA and NWP 12 because the agency failed to evaluate the cumulative effects of the FS Pipeline's water crossings ( id. ¶ ¶ 190-193).
B. Post-Preliminary Injunction Procedural History
As noted above, this Court issued an opinion denying Plaintiffs' motion for a preliminary injunction on November 13, 2013. More or less contemporaneously with this Court's issuance of that opinion, both the Federal Defendants and Enbridge filed motions to dismiss Plaintiffs' easement claims against the Corps and the BIA, as well as Plaintiffs' claim against the PHMSA, based on the fact that those agencies, at that time, had not yet taken any action regarding the easements or the not-yet-filed oil spill response plan. The motions to dismiss also argued that the claim against the FWS was subject to dismissal because that agency's issuance of the Biological Opinion and incidental take statement was non-discretionary. ( See Mem. in Supp. of Fed. Defs.' Mot. to Partially Dismiss the Compl. (" Fed. Defs.' MTD Br." ), ECF No. 47-1 (filed on Nov. 8, 2013); Mem. in Supp. of Intervenor's Mot. to Partially Dismiss the Compl. (" Enbridge MTD Br." ), ECF No. 50-1 (filed on Nov. 19, 2013).)
On December 9, 2013, while these partial motions to dismiss were still pending (and indeed, before those motions were even fully briefed), Plaintiffs filed a Motion for Summary Judgment, largely reasserting the same arguments put forth in their unsuccessful preliminary injunction motion. (Pls.' Mot. for Summ. J. (" Pls.' MSJ
Br." ), ECF No. 61.) The Federal Defendants and Enbridge responded with motions for summary judgment of their own, which were filed by January 10, 2014. (Fed. Defs.' Cross-Mot. for Summ. J. (" Fed. Defs.' MSJ Br." ), ECF No 70; Intervenor's Cross-Mot. for Summ. J. (" Enbridge MSJ Br." ), ECF No 71.) The cross-motions for summary judgment were fully briefed on February 10, 2014, and on February 21, 2014, this Court held a motion hearing on the pending partial motions to dismiss and motions for summary judgment, at the conclusion of which the Court took all of the pending motions under advisement.
Significantly, the Federal Defendants thereafter filed two notices alerting the Court to certain developments in the case. In particular, on April 23, 2014, the Federal Defendants informed the Court that the BIA had granted easements to Enbridge, and on July 18, 2014, the Federal Defendants notified the Court that the Corps had done the same with respect to the land under its jurisdiction. ( See Notice of Issuance of Easements by BIA, ECF No. 81; Notice of Issuance of Easements by Corps, ECF. No. 90.) Thus, the BIA and the Corps have apparently completed the environmental assessments of the impact of constructing the pipeline over the land under their jurisdiction and have made final determinations that the easements over the federal land under the control of those agencies should be granted, giving Enbridge the go-ahead to begin construction on those portions of the pipeline. In addition, according to Plaintiffs in a motion filed subsequent to the parties' briefing of the motions to dismiss and cross-motions for summary judgment, the Environmental Protection Agency (" EPA" ) has commented on proposed plans for the construction of portions of the pipeline, concluding that the entire FS Pipeline " [should] be analyzed as a 'connected action' in a single NEPA document." (Pls.' First Mot. to Amend at 4.) Despite these new developments, neither the BIA nor the Corps, nor any other federal agency, has conducted an environmental review of the entire FS Pipeline.
* * *
The instant opinion will proceed as follows. First, this Court will consider whether and to what extent any of the claims in Plaintiffs' complaint must be dismissed based on the arguments made in the Federal Defendants' and Intervenor's partial motions to dismiss. By and large, the Federal Defendants' and Intervenor's ripeness arguments have been overtaken by events; therefore, this Court will consider them moot and will not address them. What remains of the motions to dismiss is the argument that the Plaintiffs' claim against the PHMSA must be dismissed for lack of any " final agency action," and also the contention that the FWS's preparation of a Biological Opinion and incidental take statement can never give rise to a NEPA obligation under the circumstances presented here and thus must be dismissed--both of which the Court addresses below.
Next, the Court will turn to the parties' cross-motions for summary judgment. The opinion evaluates the extent to which the record supports Plaintiffs' contentions that both the Corps's verifications and the FWS's preparation of a Biological Opinion and incidental take statement are " major federal actions" giving rise to environmental review obligations under NEPA. The opinion also addresses Plaintiffs' core contention that, in any event, the record establishes that some federal agencies undertook one or more " major federal actions" with respect to aspects of the FS Pipeline, and that this federal involvement--whether viewed alone or cumulatively--gave rise to an obligation on the part of the federal government to conduct a comprehensive environmental review of the entire pipeline. Finally, the opinion discusses this Court's conclusions regarding Plaintiffs' claim that the Corps violated the CWA by arbitrarily and capriciously failing to take into account the " cumulative effects" of the water crossings when it verified those crossings under NWP 12.
II. FEDERAL DEFENDANTS' AND INTERVENOR'S PARTIAL MOTIONS TO DISMISS
The Federal Defendants and the Intervenor have moved to dismiss parts of Plaintiffs' complaint on two overarching bases: first, that " Plaintiffs have challenged numerous actions that may be undertaken by the Corps, PHMSA, BIA, and EPA that have not yet occurred and may never occur" (Fed. Defs.' Mot. to Partially Dismiss Pls.' Compl., ECF No. 47, at 2); and second, that " Plaintiffs have not stated a claim against PHMSA, EPA, and FWS because the[ir] . . . actions are not major federal actions requiring NEPA review" (Fed. Defs.' MTD Br. at 12). There is no need to flesh out the details of the Federal Defendants' and Intervenor's ripeness-related arguments with respect to the complaint's easement claims against the Corps and the BIA because both sides now agree that these agencies have done an environmental assessment of the federal land over which the FS Pipeline will run, and have, in fact, issued the easements in question. With respect to Defendants' and Intervenor's similar contention that the PHMSA has not yet taken any " final agency action" and thus that this Court lacks jurisdiction over the claim against the PHMSA under the APA, it is well-established that the APA's final agency action requirement is not jurisdictional, see Reliable Automatic Sprinkler Co., Inc. v. Consumer Prod. Safety Comm'n, 324 F.3d 726, 732, 355 U.S.App.D.C. 346 (D.C. Cir. 2003); thus, the final agency action argument provides no basis for dismissal of the PHMSA under Federal Rule of Civil Procedure 12(b)(1). Furthermore, Defendants' argument that this Court should dismiss Plaintiffs' claims against the BIA and EPA are unavailing for the very simple reason that the current complaint contains no " claim" against the EPA or BIA that can be subjected to dismissal.
This leaves for analysis only the Federal Defendants' and Intervenor's contention that Plaintiffs' claims against the PHMSA and FWS must be dismissed because they fail to state a claim upon which relief can be ...