Indigenous Envtl. Network v. U.S. Dep't of State
| Decision Date | 15 August 2018 |
| Docket Number | CV-17-31-GF-BMM,CV-17-29-GF-BMM |
| Citation | 317 F.Supp.3d 1118 |
| Parties | INDIGENOUS ENVIRONMENTAL NETWORK and North Coast River Alliance, and Northern Plains Resource Council, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF STATE, et al., Defendants and TransCanada Keystone Pipeline and TransCanada Corporation, Defendant-Intervenors. |
| Court | U.S. District Court — District of Montana |
Douglas P. Hayes, Eric E. Huber, Boulder, CO, Timothy M. Bechtold, Bechtold Law Firm, Missoula, MT, Jaclyn H. Prange, Cecilia D. Segal, San Francisco, CA, Selena Kyle, Chicago, IL, Amy R. Atwood, Portland, OR, Jared Michael Margolis, Eugene, OR, for Plaintiffs.
Luther L. Hajek, Bridget K. McNeil, U.S. Department of Justice, Denver, CO, Mark Steger Smith, U.S. Attorney's Office, Billings, MT, for Defendants.
Jeffery J. Oven, Mark L. Stermitz, Crowley Fleck PLLP, Billings, MT, Jeffrey M. Roth, Crowley Fleck PLLP, Missoula, MT, Lauren C. Freeman, Sidley Austin LLP, New York, NY, Peter R. Steenland, Peter Christopher Whitfield, Sidley Austin LLP, Washington, DC, for Defendant-Intervenors.
PARTIAL ORDER ON SUMMARY JUDGMENT REGARDING NEPA COMPLIANCE
Plaintiffs Indigenous Environmental Network and Northern Plains Resource Council (collectively "Plaintiffs") bring this action against the United States Department of State and various other governmental agencies and agents in their official capacities ("Federal Defendants"). Plaintiffs allege that the State Department violated the Administrative Procedure Act ("APA"), the National Environmental Policy Act ("NEPA"), and the Endangered Species Act ("ESA") when it published its Record of Decision ("ROD") and National Interest Determination ("NID") and issued the accompanying Presidential Permit to allow defendant-intervenor TransCanada Keystone Pipeline, LP ("TransCanada") to construct a cross-border oil pipeline known as Keystone XL ("Keystone"). Plaintiffs have moved for summary judgment. (Docs. 139 & 145.) Federal Defendants and TransCanada have filed cross motions for summary judgment. (Docs. 172 & 170.) The Court held a hearing on these motions on May 24, 2018. (Doc. 194.) The Court is prepared to rule on a portion of Plaintiffs's motion for summary judgment. The Court will rule on the remaining issues in a forthcoming Order.
The Court detailed the background of this case in its Order regarding Federal Defendant's and TransCanada's Motion to Dismiss for Lack of Jurisdiction. (Doc. 99.) The Court will only recite those facts that have arisen since its Order regarding jurisdiction.
The Nebraska Public Service Commission ("PSC") denied TransCanada's application for its preferred route on November 20, 2017. (Doc. 104-1.) The Nebraska PSC instead approved the "Mainline Alternative" route. Id. The Mainline Alternative route goes through five different counties and crosses several different water bodies than the original preferred route. Id. The Mainline Alternative route also would be longer. This added length requires an additional pump station and accompanying power line infrastructure. Id.
After the Nebraska PSC announced its decision, Plaintiffs notified Federal Defendants that they needed to reinitiate ESA Section 7(a)(2) consultation on the Mainline Alternative route to assess the potential effects of the new route on endangered and threatened species. (Doc. 141-1.) Plaintiffs also requested that Federal Defendants prepare a supplemental EIS. Id. Federal Defendants have taken steps to reinitiate ESA Section 7(a)(2) consultation with the appropriate agencies, including FWS. Federal Defendants have not committed, however, to supplementing the EIS. Id.
A court should grant summary judgment where the movant demonstrates that no genuine dispute exists "as to any material fact" and the movant is "entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment remains appropriate for resolving a challenge to a federal agency's actions when review will be based primarily on the administrative record. Pit River Tribe v. U.S. Forest Serv. , 469 F.3d 768, 778 (9th Cir. 2006).
The APA's standard of review governs Plaintiffs's claims. W. Watersheds Project v. Kraayenbrink , 632 F.3d 472, 481, 496 (9th Cir. 2011) ; Bennett v. Spear , 520 U.S. 154, 174, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). The APA instructs a reviewing court to "hold unlawful and set aside" agency action deemed "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). A rational connection must exist between the facts found and the conclusions made in support of the agency's action. Kraayenbrink , 632 F.3d at 481.
I. Federal Defendants did not properly analyze Keystone's environmental impacts considering Federal Defendants did not know Keystone's final route through Nebraska.
Plaintiffs argue that the agencies could not properly analyze Keystone's environmental impacts without knowing its route through Nebraska. (Doc. 140 at 17.) NEPA serves as the "basic national charter for protection of the environment." 40 C.F.R. § 1500.1(a). NEPA requires all federal agencies to prepare a "detailed statement" for any "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C).
This detailed statement, known as an environmental impact statement ("EIS"), must describe the environmental impacts of the proposed action. 42 U.S.C. § 4332(2)(C)(i), (ii). The EIS must include a "full and fair discussion" of the effects of the proposed action, including those on the "affected region, the affected interests, and the locality." 40 C.F.R. §§ 1502.1, 1508.27(a). Further, for a "site-specific action, significance would usually depend upon the effects in the locale ..." Id. , § 1508.27(a). The agency must finally consider the "unique characteristics of the geographic area" when determining the significance of an action. Id. , § 1508.27(b)(2). An agency also may be required to perform a supplemental analysis "if significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts" arise during the NEPA review. 40 C.F.R. § 1502.9(c)(1)(ii).
Plaintiffs further argue that Federal Defendants must address the Mainline Alternative route pursuant to its NEPA obligations as it proves to be a "connected action" to the proposed action. (Doc. 146 at 48.); 40 C.F.R. § 1508.25(a)(1). A federal agency must consider connected actions together in a single EIS. Id. NEPA defines connected actions as any of the following: those actions that "automatically trigger other actions which may require environmental impact statements;" those actions that "cannot or will not proceed unless other actions are taken;" or those actions are interdependent parts of a larger action and depend on the larger action for their justification." 40 C.F.R. § 1508.25(a)(1). In determining whether two actions are connected for the purposes of NEPA, a court must examine whether the two actions have "independent utility" or whether it would be "irrational, or at least unwise, to undertake the first phase if subsequent phases were not also undertaken." Daly v. Volpe , 514 F.2d 1106, 1110 (9th Cir. 1975) ; Thomas v. Peterson , 753 F.2d 754, 759 (9th Cir. 1985) (overruled on other grounds by Cottonwood Environmental Law Ctr. v. U.S. Forest Serv. , 789 F.3d 1075, 1088-92 (9th Cir. 2015).
The Ninth Circuit in Thomas considered whether a road and a timber sale were sufficiently related to require combined treatment in a single EIS that covered the cumulative effects of each. Thomas , 753 F.2d at 757. The Forest Service argued that it remained proper for it to consider separately the effects of the road and the timber sale. Id. The Ninth Circuit recognized that administrative agencies must be given considerable discretion in defining the scope of an EIS. The Ninth Circuit further noted, however, that situations exist in which an agency must be required to consider several related actions in a single EIS. Id. The failure to consider several related actions in a single EIS would allow a project to be divided into multiple actions, "each of which individually has an insignificant environmental impact, but which collectively have a substantial impact." Id. at 758. The road construction and the contemplated timbers sales were inextricably intertwined as evidenced by the timber sales not being able to proceed without the road and the road not being built, but for the contemplated timber sales. Id. The road and the timber sales qualified as connected actions. Id.
Federal Defendants argue that the Nebraska PSC did not approve Mainline Alternative route until after the issuance of the Presidential Permit. (Doc. 173 at 31.) This decision from the Nebraska PSC proved beyond the control of Federal Defendants and TransCanada. Id. Federal Defendants argue that NEPA imposes no obligation on the Federal Defendants to prepare a supplemental analysis to address the Mainline Alternative route when the EIS remained complete. (Doc. 185 at 15.)
Federal Defendants further argue that the language of the Presidential Permit "clearly limits the State Department's ongoing oversight to circumstances where there is a ‘substantial change in the United States facilities,’ which are defined to include only the 1.2 mile border segment." Id. Federal Defendants finally contend that any NEPA process that the State Department has begun in connection with the Mainline Alternative route simply supports the Bureau of Land Management's right-of-way decision. Id.
TransCanada argues that the State Department possesses no obligation under NEPA to review the impacts of the Nebraska PSC's decision as there remains no "ongoing major federal action" for the agency to take. Id. TransCanada contends that the State Department had completed its federal action when it made its national interest...
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