Club v. Clinton

Decision Date19 October 2010
Docket NumberCivil No. 09–2622 (DWF/RLE).
Citation746 F.Supp.2d 1025
PartiesSIERRA CLUB; Minnesota Center for Environmental Advocacy; Indigenous Environmental Network; and National Wildlife Federation, Plaintiffs,v.Hillary CLINTON, in her official capacity as Secretary of State; James Steinberg, in his official capacity as Deputy Secretary of State; United States Department of State; Lieutenant General Robert L. Van Antwerp, in his official capacity as U.S. Army Chief of Engineers and Commanding General of U.S. Army Corps of Engineers; Colonel Jon L. Christensen, in his official capacity as District Engineer and Commander of the U.S. Army Corps of Engineers; the United States Army Corps of Engineers; Tom Tidwell, in his official capacity as Chief of the United States Forest Service; Rob Harper, in his official capacity as Forest Supervisor for the Chippewa National Forest; and the United States Forest Service, Defendants,andEnbridge Energy, Limited Partnership, Defendant–Intervenor.
CourtU.S. District Court — District of Minnesota

OPINION TEXT STARTS HERE

Douglas P. Hayes, Esq. and Eric E. Huber, Esq., Sierra Club Environmental Law Program; J. Martin Wagner, Esq. and Sarah H. Burt, Esq., Earthjustice; and Kevin Reuther, Esq., Minnesota Center for Environmental Advocacy, for Plaintiffs.Luther L. Hajek, Esq., U.S. Department of Justice; Chad A. Blumenfield, Assistant United States Attorney, United States Attorney's Office, for Defendants.Daniel J. Herber, Esq., and Bruce G. Jones, Esq., Faegre & Benson LLP; David H. Coburn, Esq., and Sara Beth Watson, Esq., Steptoe & Johnson LLP, for DefendantIntervenor.

MEMORANDUM OPINION AND ORDER

DONOVAN W. FRANK, District Judge.

INTRODUCTION

Plaintiffs Sierra Club, Minnesota Center for Environmental Advocacy (MCEA), Indigenous Environmental Network, and National Wildlife Federation (together, Plaintiffs) brought this action against the United States Department of State (State Department); Hillary Clinton, in her official capacity as Secretary of State; James Steinberg, in his official capacity as Deputy Secretary of State; the United States Army Corps of Engineers (the Corps); Lieutenant General Robert L. Van Antwerp, in his official capacity as U.S. Army Chief of the Corps; Colonel Jon L. Christensen, in his official capacity as District Engineer and Commander of the U.S. Army Corps of Engineers; the United States Forest Service (Forest Service); Tom Tidwell, in his official capacity as Chief of the Forest Service; and Rob Harper, in his official capacity as Forest Supervisor for the Chippewa National Forest (collectively, Defendants). Enbridge Energy (“Enbridge”) intervened in the action. Plaintiffs claim that Defendants violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321, et seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, when they issued their final Environmental Impact Statement (“EIS”) and permits for the Alberta Clipper Pipeline (“AC Pipeline”) and Southern Lights Diluent Pipeline (“SLD Pipeline”) projects. The parties have filed cross-motions for summary judgment on Plaintiffs' NEPA claims. For the reasons set forth below, the Court denies Plaintiffs' motion for summary judgment and grants Defendants' and Enbridge's motions for summary judgment.

BACKGROUND

This case involves the construction and operation of the AC and SLD Pipelines in the United States. These pipelines are being constructed by Enbridge as part of a pipeline expansion project. The AC Pipeline is an underground pipeline that extends from Hardisty, Alberta, Canada, to Superior, Wisconsin. The AC Pipeline crosses the U.S.–Canada border near Neche, North Dakota.

In the United States, the AC Pipeline consists of approximately 326 miles of a 36–inch diameter pipeline extending from Neche, North Dakota, across Minnesota, to Superior, Wisconsin. At Superior, the AC Pipeline will connect with an existing mainline to Chicago, Illinois. The AC Pipeline will transport heavy crude oil, or bitumen, extracted from tar sands in Canada. The AC Pipeline project will have the capacity to transport approximately 450,000 barrels-per-day (“bpd”) of crude oil. (App. of Admin. Record Materials for the Alberta Clipper Pipeline (“ACP”) at 119.) The AC Pipeline will be installed primarily within or adjacent to an existing Enbridge pipeline corridor. ( Id.)

The SLD Pipeline is a 20–inch diameter pipeline extending from Manhattan, Illinois, to Clearbrook, Minnesota. At Clearbrook, it will connect with an existing Enbridge pipeline, Line 13. (ACP at 146–47.) Enbridge intends to reverse the flow of Line 13 to create a diluent delivery line to transport diluent from Illinois to Canadian oil sands producers. Diluent is a light petroleum liquid used to facilitate the flow of heavy crude oil, which must be diluted in order to be transported through a pipeline. ( Id.) The new segment of the SLD Pipeline that will run from Superior, Wisconsin, to Clearbrook, Minnesota, will also be “installed primarily within or adjacent to the existing Enbridge pipeline corridor” and will be constructed at the same time as the AC Pipeline. ( Id. at 146–147.)

In May 2007, Enbridge submitted an application for a Presidential Permit to construct and operate the AC Pipeline. ( Id. at 27.) This permit was required because the pipeline expansion involved construction on the U.S.-Canada border. The State Department conducted an environmental review, during which it published a Notice of Intent to Prepare an EIS and to Conduct Supplemental Scoping in the Federal Register; conducted public meetings in North Dakota, Minnesota, and Wisconsin; accepted and reviewed public comments on its Draft Environmental Impact Statement (“DEIS”); and consulted with Indian tribes and several federal and state agencies, including the Corps, the U.S. Environmental Protection Agency, and the U.S. Fish and Wildlife Service. ( Id. at 45.) The State Department published its Notice of Availability of the Final EIS (“FEIS”) and request for public comments in the Federal Register. ( Id.)

On August 3, 2009, Deputy Secretary of State James Steinberg signed a Record of Decision (“ROD”) and National Interest Determination and Presidential Permit, indicating the State Department's intent to issue a Presidential Permit to Enbridge (the “Permit”). The Permit grants Enbridge permission “to construct, connect, operate, and maintain pipeline facilities at the border of the United States and Canada at Neche, North Dakota, for the transport of crude oil and other hydrocarbons between the United States and Canada.” ( Id. at 18.)

The Summary of the State Department ROD states in part:

DOS has determined, through review of the Alberta Clipper Project application, that the Alberta Clipper Project would serve the national interest, in a time of considerable political tension in other major oil producing regions and countries, by providing additional access to a proximate, stable, secure supply of crude oil with minimum transportation requirements from a reliable ally and trading partner of the United States with which we have free trade agreements that further augments the security of this energy supply.

( Id. at 24–25.) The State Department ROD goes on to explain that the construction and operation of the AC Pipeline serves the national and strategic interests of the United States by “increas[ing] the diversity of available supplies among the United States' worldwide crude oil sources in a time of considerable political tension in other major oil producing countries and regions,” shortening the transportation pathway for crude oil imports, “increas [ing] crude supplies from a major non-Organization of Petroleum Exporting Countries producer which is a stable and reliable ally and trading partner with the United States,” and providing additional supplies of crude oil to make up for declines in imports from other suppliers. ( Id. at 47.) On August 20, 2009, the State Department issued the Permit.

Enbridge also obtained permits from the Corps under the Clean Water Act and River and Harbors Act because both the AC Pipeline and the SLD Pipeline cross wetlands and waters of the United States. On June 11, 2009, the Corps issued Enbridge a permit for the North Dakota portion of the AC Pipeline, and, on August 24, 2009, the Corps issued Enbridge permits allowing the AC Pipeline and the SLD Pipeline to be constructed in Minnesota and Wisconsin. (App. of Admin. Record Materials, Corps of Engineers (“COE”) at 1–87.) The Corps issued a Record of Decision (“Corps ROD”), relying on the AC Pipeline DEIS, the FEIS, and additional information that addressed potential impacts on wetlands and waterbodies. (COE at 7379–7411.)

The AC Pipeline and SLD Pipeline also cross the Chippewa National Forest (CNF) in Minnesota. Enbridge applied for an amendment to an existing Special Use Authorization permit and for a Temporary Construction Special Use Permit from the Forest Service, seeking allowance to construct the two pipelines in the CNF. (App. of Admin. Record Materials, Forest Service (“DOS”) at 9063.) The Forest Service issued a Record of Decision for the AC Pipeline and SLD Pipeline projects. (DOS at 9061–9086.) The CNF and the Leech Lake Band of Chippewa jointly completed an Environmental Assessment (“EA”) of the impacts of the expansion of the AC and SLD Pipelines through the CNF. (ACP at 2522–2693.) The final EA was issued and published as an appendix to the State Department FEIS. The Forest Service subsequently issued the permits to Enbridge.

In their First Amended Complaint,1 Plaintiffs challenge the issuance of three sets of permits under NEPA: (1) the State Department's issuance of the Permit for the construction and operation of the AC Pipeline; (2) the Corps' permits allowing Enbridge to dredge and fill wetlands and place structures underwater in the construction of the AC Pipeline and the SLD Pipeline; and (3) the Forest Service's special permits allowing Enbridge to construct...

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