N. Plains Res. Council v. U.S. Army Corps of Eng'rs

• Decision Date: 11 May 2020
• Docket Number: CV 19-44-GF-BMM
• Citation: 460 F.Supp.3d 1030
• Parties: NORTHERN PLAINS RESOURCE COUNCIL, et al., Plaintiffs, v. U.S. ARMY CORPS OF ENGINEERS, et al., Defendants, TC Energy Corporation, et al., Intervenor-Defendants, State of Montana, Intervenor-Defendant, American Gas Association, et al., Intervenor-Defendants.
• Court: U.S. District Court — District of Montana

460 F.Supp.3d 1030

NORTHERN PLAINS RESOURCE COUNCIL, et al., Plaintiffs,

v. U.S. ARMY CORPS OF ENGINEERS, et al., Defendants,TC Energy Corporation, et al., Intervenor-Defendants,State of Montana, Intervenor-Defendant,American Gas Association, et al., Intervenor-Defendants.

CV 19-44-GF-BMM

United States District Court, D. Montana, Great Falls Division.

Signed May 11, 2020

Timothy M. Bechtold, Bechtold Law Firm, Missoula, MT, Douglas P. Hayes, Sierra Club, Boulder, CO, Cecilia D. Segal, Natural Resources Defense Council, San Francisco, CA, for Plaintiffs Northern Plains Resource Council, Natural Resources Defense Council.

Cecilia D. Segal, Pro Hac Vice, Jaclyn H. Prange, Pro Hac Vice, Natural Resources Defense Council, San Francisco, CA, Douglas P. Hayes, Pro Hac Vice, Natural Resources Defense Council, Eric E. Huber, Environmental Law Program, Boulder, CO, Jared Michael Margolis, Pro Hac Vice, Center for Biological Diversity, Eugene, OR, Timothy M. Bechtold, Bechtold Law Firm, Missoula, MT, Amy R. Atwood, Pro Hac Vice, Center for Biological Diversity, Portland, OR, for Plaintiff Bold Alliance.

Timothy M. Bechtold, Bechtold Law Firm, Missoula, MT, Douglas P. Hayes, Sierra Club, Boulder, CO, for Plaintiffs Sierra Club, Center for Biological Diversity, Friends of the Earth.

Benjamin James Grillot, Kristofor R. Swanson, U.S. Department of Justice, Washington, DC, 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, Peter R. Steenland, Pro Hac Vice, Peter Christopher Whitfield, Pro Hac Vice, Sidley Austin LLP, Washington, DC, for Intervenor-Defendants TransCanada Keystone Pipeline LP, TC Energy Corporation.

Robert Thomas Cameron, Timothy C. Fox, Jeremiah R. Langston, Montana Attorney General, Helena, MT, for Intervenor-Defendant State of Montana.

Brianne C. McClafferty, William W. Mercer, Holland & Hart, Billings, MT, Deidre G. Duncan, Pro Hac Vice, Karma B. Brown, Pro Hac Vice, Hunton Andrews Kurth LLP, Washington, DC, for Intervenor-Defendants American Gas Association, American Petroleum Institute, Association of Oil Pipe Lines, Interstate Natural Gas Association of America, National Rural Electric Cooperative Association.

ORDER AMENDING SUMMARY JUDGMENT ORDER AND ORDER REGARDING DEFENDANTS’ MOTIONS FOR STAY PENDING APPEAL

Brian Morris, Chief District Judge

INTRODUCTION

The Court issued an order on the parties’ motions for summary judgment on April 15, 2020. (Doc. 130.) The Court concluded that the Army Corps of Engineers ("Corps") violated the Endangered Species Act ("ESA") when it reissued Nationwide Permit 12 ("NWP 12") in 2017. (Id. at 25.) The Court remanded NWP 12 to the Corps for compliance with the ESA. (Id. at 26.) The Court also vacated NWP 12 and enjoined the Corps from authorizing any dredge or fill activities under NWP 12 pending completion of the consultation process and compliance with all environmental statutes and regulations. (Id. )

DISCUSSION

Federal Defendants and TC Energy have filed motions for a partial stay pending appeal. (Docs. 131 & 136.) Federal Defendants also suggest that the Court could revise its remedy. (Doc. 131 at 7.) Plaintiffs propose a revised remedy that would narrow the scope of the vacatur and injunction. (Doc. 144 at 10.)

I. THE PLAINTIFFS’ FACIAL CHALLENGE AND THE COURT'S DECISION

The Court focused its ESA analysis on Plaintiffs’ facial challenge to NWP 12. (Doc. 130 at 7-21.) Plaintiffs alleged that NWP 12 authorized activities that "cause immediate and irreparable impacts to ecosystem functions of streams and adjacent wetlands" and "adversely affect hundreds of listed species that rely on rivers, streams, and wetland habitats and other aquatic resources across the country." (Doc. 36 at 43.) Plaintiffs’ challenge focused on the Corps’ use of NWP 12 to approve pipeline projects like Keystone XL, but Plaintiffs did not suggest that their harms stemmed only from pipelines, let alone only from Keystone XL. (Doc. 144 at 33.)

Plaintiffs explained in seeking summary judgment that "regional conditions and project-level consultations" represented "inadequate substitutes for programmatic consultation" because they "fail to adequately analyze NWP 12's cumulative impacts to listed species, like migratory birds, that cross regions." (Doc. 73 at 42 (citing Keystone XL as "illustrative")). The Court agreed with Plaintiffs. The Court concluded that the Corps cannot circumvent the consultation requirements of ESA § 7 by relying on project-level review. (Doc. 130 at 16.) The Court recognized that "[p]rogrammatic review of NWP 12 in its entirety ... provides the only way to avoid piecemeal destruction of species and habitat." (Doc. 130 at 18.) The Court vacated NWP 12 and enjoined the Corps from authorizing activities under NWP 12. (Doc. 130 at 26.)

The relief that the Court provided comports with law. A district court "should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings." Fed. R. Civ. P. 54(c) ; see also In re Bennett , 298 F.3d 1059, 1069 (9th Cir. 2002). The Court properly can grant the presumptive remedy of vacating the unlawful action, particularly where, as here, Plaintiffs requested "such other relief as the Court deems just and appropriate." (Doc. 36 at 88); see Whole Woman's Health v. Hellerstedt , ––– U.S. ––––, 136 S. Ct. 2292, 2307, 195 L.Ed.2d 665 (2016).

The U.S. Supreme Court recently addressed a district court's authority in determining the appropriate relief in the face of an unconstitutional statute in Whole Woman's Health . A group of doctors challenged Texas's law that required doctors to perform abortions in a surgical center and that required doctors who perform abortions to have admitting privileges at a local hospital, as applied to doctors at two separate abortion facilities. Id. at 2299, 2301. The district court enjoined enforcement of both provisions throughout Texas. Id. at 2303.

The Fifth Circuit reversed, in significant part, due to the fact that res judicata barred the district court from holding the admitting-privileges unconstitutional statewide when petitioners had challenged its application only to two separate facilities. Id. at 2300-301. The Supreme Court reversed. Petitioners had asked for as-applied relief and for "such other and further relief as the Court may deem just, proper, and equitable." Id. at 2307. The Supreme Court concluded that "[n]othing prevents ... awarding facial relief as the appropriate remedy for petitioners’ as applied [constitutional] claims" even when the facial relief exceeds the other relief requested. Id. at 2307. Plaintiffs here also asked for "other relief as the Court deems just and appropriate." (Doc. 36 at 88.)

The Ninth Circuit likewise has recognized that "the ordinary result is that the rules are vacated—not that their application to the individual petitioners is proscribed" when a reviewing court determines that agency regulations are unlawful. Empire Health Found. v. Azar , 958 F.3d 873, 886–87 (9th Cir. 2020) (citation omitted). The Ninth Circuit invalidated on substantive grounds a rule promulgated by the Secretary of Health and Human Services regarding Medicare reimbursement. Id. at 884–86. The Ninth Circuit saw no reason not to apply the "ordinary result" of vacating the invalid rule that it had deemed unlawful. Id. at 886–87.

Accordingly, a single plaintiff with a successful Administrative Procedure Act ("APA") claim may obtain broad programmatic relief. See E. Bay Sanctuary Covenant v. Trump , 950 F.3d 1242, 1283 (9th Cir. 2020) ; O.A. v. Trump , 404 F. Supp. 3d 109, 153 (D.D.C. 2019) (rejecting argument that vacatur "should be limited to the plaintiffs in this case"). The Ninth Circuit affirmed a nationwide injunction to ensure the implementation of a "uniform federal policy" and to avoid having important parts of federal immigration law being determined according to the law of a local forum rather than having a "uniform federal definition." E. Bay Sanctuary Covenant , 950 F.3d at 1283 (citations omitted). The ESA likewise has nationwide application and significance that should be interpreted and applied pursuant to a "uniform federal definition."

Other courts routinely have vacated invalid agency actions of broad applicability without requiring plaintiffs to show harms stemming from each unlawful application. The Ninth Circuit in Natural Resources Defense Council v. U.S. Environmental Protection Agency , 526 F.3d 591, 608 (9th Cir. 2008), vacated a rule adopted by EPA that prevented EPA from requiring permits for storm water discharge comprised solely of sediment from oil and gas construction activities. See also Chamber of Commerce of U.S. v. Dep't of Labor , 885 F.3d 360, 388 (5th Cir. 2018) (vacating Department of Labor's application of the "fiduciary rule" to broker-dealer and insurance agents as conflicting with the Employee Retirement Income Security Act). The facts presented here, and the cases analyzed, indicate that the Court exercised appropriate discretion when it chose to vacate broadly and enjoin the Corps’ authorizations under NWP 12 due to the Corps’ program-level ESA violation. See Empire Health Found. , 958 F.3d at 886–87.

II. REMEDY

Federal Defendants now suggest that the Court has the authority to amend the scope of the relief ordered. (Doc. 131 at 7.) Plaintiffs do not oppose a partial narrowing of the vacatur and injunction. (Doc. 144 at 9-10.) Plaintiffs suggest that the Court narrow the vacatur of NWP 12 to a partial vacatur that applies to the construction of new oil and gas pipelines. (Id. ) This proposed narrowing would keep NWP 12 in place during remand insofar as it authorizes non-pipeline construction activities and routine maintenance, inspection, and repair activities on existing NWP 12 projects. (Id. at 10.) Plaintiffs also...