Nat'l Wildlife Fed'n v. Sec'y of the U.S. Dep't of Transp.

Decision Date05 June 2020
Docket NumberNos. 19-1609/1610,s. 19-1609/1610
Citation960 F.3d 872
Parties NATIONAL WILDLIFE FEDERATION, Plaintiff-Appellee, v. SECRETARY OF THE UNITED STATES DEPARTMENT OF TRANSPORTATION; Administrator of the Pipeline & Hazardous Materials Safety Administration, in their official capacities (19-1609), Defendants-Appellants, Enbridge Energy, Limited Partnership (19-1610), Intervening Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

THAPAR, Circuit Judge.

Discretion and judgment are not the same thing. The question here is whether an agency has discretion to consider environmental criteria not listed in a statute simply because the agency exercises some degree of judgment when it considers the statutory criteria. The district court thought that to be so and ordered the agency to comply with the Endangered Species Act and National Environmental Policy Act. We see things differently and reverse.

This case is about an oil pipeline called "Line 5." For over sixty years, Line 5 has carried oil across the Great Lakes region. Beginning in northwestern Wisconsin, the pipeline stretches into the Upper Peninsula of Michigan, takes a right turn at the Straits of Mackinac, and cuts down through the Lower Peninsula before ending in southwestern Ontario.

The Clean Water Act, as later amended, requires the operators of oil pipelines to submit response plans that address the risk of a potential oil spill. 33 U.S.C. § 1321(j)(5)(A)(i) ; 49 C.F.R. § 194.101(a). These plans must satisfy the following six criteria enumerated in the statute:

(i) be consistent with the requirements of the National Contingency Plan and Area Contingency Plans;
(ii) identify the qualified individual having full authority to implement removal actions, and require immediate communications between that individual and the appropriate Federal official and the persons providing personnel and equipment pursuant to clause (iii);
(iii) identify, and ensure by contract or other means approved by the President the availability of, private personnel and equipment necessary to remove to the maximum extent practicable a worst case discharge (including a discharge resulting from fire or explosion), and to mitigate or prevent a substantial threat of such a discharge; (iv) describe the training, equipment testing, periodic unannounced drills, and response actions of persons on the vessel or at the facility, to be carried out under the plan to ensure the safety of the vessel or facility and to mitigate or prevent the discharge, or the substantial threat of a discharge;
(v) be updated periodically; and
(vi) be resubmitted for approval of each significant change.

33 U.S.C. § 1321(j)(5)(D). The Act also provides that the administering agency "shall ... approve any plan" that satisfies the enumerated criteria. Id . § 1321(j)(5)(E)(iii).

Over the past five years, the operator of Line 5 (Enbridge Energy) has submitted two different response plans as required by the Clean Water Act. The administering agency (here, the Pipeline and Hazardous Materials Safety Administration) evaluated these plans, determined each plan met the enumerated criteria, and thus approved them both.

The National Wildlife Federation then sued, alleging that the agency had violated the Clean Water Act and various other statutes. As relevant here, the district court found that the response plans satisfied the enumerated criteria. But the court granted summary judgment to the Federation on other grounds, holding that the agency had to comply with the Endangered Species Act and the National Environmental Policy Act before it could approve the plans. We review the district court’s decision de novo. See Sierra Club v. U.S. Forest Serv. , 828 F.3d 402, 407 (6th Cir. 2016).

Endangered Species Act. The defendants first challenge the district court’s ruling as to the Endangered Species Act. That Act requires federal agencies to consult with the appropriate environmental authorities in order to "insure that any [agency] action ... is not likely to jeopardize the continued existence of any endangered species or threatened species." 16 U.S.C. § 1536(a)(2). But importantly, the consultation requirement does not apply to all agency actions; it applies only to "discretionary" ones. 50 C.F.R. § 402.03 ; Nat’l Ass’n of Home Builders v. Defs. of Wildlife , 551 U.S. 644, 652, 669, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007).

The Supreme Court explained the meaning of the term "discretionary" in Home Builders . Like this case, that case involved a provision of the Clean Water Act. And like the provision here, the provision there provided that an agency "shall" take an action—namely, transfer certain permitting powers to state authorities—if nine enumerated criteria were met. 33 U.S.C. § 1342(b) ; Home Builders , 551 U.S. at 650–51, 127 S.Ct. 2518. The Court found that the action was not "discretionary" because "the statutory language [was] mandatory and the list exclusive." Home Builders , 551 U.S. at 661, 127 S.Ct. 2518. The statute did "not just set forth minimum requirements for the transfer of permitting authority; it affirmatively mandate[d] that the transfer ‘shall’ be approved if the specified criteria are met." Id . at 663, 127 S.Ct. 2518. And in this way, the criteria "operate[d] as a ceiling as well as a floor." Id . In short, the consultation requirement did not apply because the action was something that the agency was "required by statute" to do "once certain specified triggering events ha[d] occurred." Id . at 669, 127 S.Ct. 2518.

All the same holds true here. The Clean Water Act provides that the agency "shall" approve any response plan that meets the requirements of the Act. 33 U.S.C. § 1321(j)(5)(E)(iii). Like in Home Builders , "the statutory language is mandatory." Home Builders , 551 U.S. at 661, 127 S.Ct. 2518. The Act also enumerates six criteria that response plans must satisfy. 33 U.S.C. § 1321(j)(5)(D). Again, like in Home Builders , the list is "exclusive" and "operates as a ceiling as well as a floor." Home Builders , 551 U.S. at 661, 663, 127 S.Ct. 2518. Thus, like in Home Builders , the agency is "required by statute" to approve the response plan once the "triggering events have occurred." Id. at 669, 127 S.Ct. 2518. Indeed, even the district court and the Federation have recognized as much. R. 78, Pg. ID 2225 (recognizing that the agency cannot "disapprove a response plan that meets the relevant criteria"); Appellee Br. at 54 (describing the action as "mandatory" once the relevant criteria have been met). By all appearances, then, the action here isn’t "discretionary."

The Federation pushes back on this conclusion in several ways.

The Federation primarily argues that the agency has "discretion" because it exercises some degree of "judgment" when it evaluates the enumerated criteria. But Home Builders squarely forecloses this reasoning. Both the plaintiffs and the dissent in that case tried the same argument, reasoning that the agency action was "discretionary" because it wasn’t "entirely mechanical" and involved "some exercise of judgment." Home Builders , 551 U.S. at 671, 127 S.Ct. 2518 ; see id . at 691–92, 127 S.Ct. 2518 (Stevens, J., dissenting). Yet the majority rejected the "some judgment" theory out of hand. Id . at 671, 127 S.Ct. 2518 (majority opinion).

To be sure, Home Builders didn’t draw a precise line between "discretion" and "judgment." But the basic distinction isn’t all that mysterious. Some examples may help to show the difference. The clearest case of "discretion" is when an agency doesn’t have to act—for instance, if a statute says "may" rather than "must" or "shall." See, e.g. , Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv. , ––– U.S. ––––, 139 S. Ct. 361, 371, 202 L.Ed.2d 269 (2018) ("The use of the word ‘may’ certainly confers discretion on the [agency]."). Beyond that, some courts have found even mandatory actions to be "discretionary" under the Endangered Species Act (and related statutes) when the statutory criteria are so open-ended that they leave the agency significant flexibility on when or how to act. See, e.g. , Sierra Club v. Fed. Energy Regulatory Comm’n , 867 F.3d 1357, 1373 (D.C. Cir. 2017) ("public convenience and necessity"); Fla. Key Deer v. Paulison , 522 F.3d 1133, 1142 (11th Cir. 2008) (" ‘otherwise improve’ land management and use"). But on the other hand, Home Builders makes clear that agency action need not be "entirely mechanical" for the agency to still be exercising only "judgment," not "discretion." Home Builders , 551 U.S. at 671, 127 S.Ct. 2518.

Or consider some analogous examples from a more familiar context. Just like agencies, district courts can have "discretion" because permissive language gives it to them. See, e.g. , Dorris v. Absher , 179 F.3d 420, 429 (6th Cir. 1999) (applying the general rule that the term "may" gives the district court "discretion" to act). But district courts can also have "discretion" because the criteria governing their action (even a mandatory action) are simply too open-ended to be anything but "discretionary." Take the Federal Rule on discovery: courts "must" limit discovery to "the scope permitted by Rule 26(b)(1)." Fed. R. Civ. P. 26(b)(2)(C)(iii). That sounds nondiscretionary until you look at Rule 26(b)(1), which defines the scope of discovery only in terms of a broad list of open-ended factors courts must "consider[ ]." It should come as no surprise then that "the scope of discovery is within the sound discretion of the trial court." Pittman v. Experian Info. Sols., Inc. , 901 F.3d 619, 642 (6th Cir. 2018) (cleaned up). Yet this does not mean that any amount of open-endedness makes a decision "discretionary." District courts make tough calls on a daily basis. Most motions to dismiss or for summary judgment, for example, call on district courts to exercise their judgment and expertise. Cf. Ashcroft v. Iqbal , 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (noting that "whether...

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