Nat'l Wildlife Fed'n v. Sec'y of the Dep't of Transp.
| Citation | 374 F.Supp.3d 634 |
| Decision Date | 29 March 2019 |
| Docket Number | Case No. 17-10031 |
| Parties | NATIONAL WILDLIFE FEDERATION, Plaintiff, v. SECRETARY OF the DEPARTMENT OF TRANSPORTATION, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
Nancy M. Wang, University of Michigan Law School, Oday Salim, University of Michigan Law School Environmental Law & Sustainability Clinic, Ann Arbor, MI, for Plaintiff.
Alan D. Greenberg, Claudia Hadjigeorgiou, Trent S.W. Crable, U.S. Department of Justice, Mele Coleman, U.S. Department of Justice Wildlife and Marine Resources Section, Washington, DC, for Defendants.
OPINION & ORDER
This matter is before the Court on Plaintiff National Wildlife Federation's ("NWF") Motion for Summary Judgment (Dkts. 57 & 59), Defendants the Secretary of the United States Department of Transportation ("Secretary") and Administrator of the Pipeline and Hazardous Materials Safety Administration's ("PHMSA") (collectively, "Federal Defendants") Cross-Motion for Summary Judgment (Dkts. 64 & 67), and Defendant-Intervenor Enbridge Energy, Limited Partnership's ("Enbridge") Cross-Motion for Summary Judgment (Dkt. 68).
In the Third Amended Complaint (Dkt. 34), NWF seeks review of PHMSA and Enbridge's actions under the Administrative Procedure Act, 5 U.S.C. § 706(2) ("APA"), for alleged violations of the Federal Water Pollution Control Act, commonly known as the Clean Water Act ("CWA"); the National Environmental Policy Act ("NEPA"); and the Endangered Species Act ("ESA"). Specifically, NWF seeks declaratory and injunctive relief related to PHMSA's approvals of Enbridge's facility response plans for an oil pipeline known as Line 5. 3d Am. Compl., Prayer for Relief.
NWF argues that PHMSA's interpretation of the Oil Pollution Act of 1990, Pub. L. No. 101-380, 104 Stat. 484 (1990), which amended the CWA, is arbitrary and capricious in regards to the type of facility at issue in this case. It further argues that PHMSA acted improperly by approving Defendant-Intervenor Enbridge's oil spill response plans without sufficient explanation in violation of the CWA. And finally, NWF argues that PHMSA failed to meet its statutory obligations by approving the oil spill response plans without first complying with their duties under NEPA and the ESA. For the reasons discussed below, the Court grants in part and denies in part NWF's motion for summary judgment and grants in part and denies in part Defendants' respective cross-motions for summary judgment.
This is the second time this case has come before this Court. In the prior case, National Wildlife Federation v. Secretary of United States Department of Transportation ("NWF I"), 286 F.Supp.3d 836 (E.D. Mich. 2017), NWF argued, among other things, that PHMSA was improperly reviewing facility response plans for some two decades under federal regulations for onshore pipelines, which it maintained did not faithfully track the CWA. Id. at 841. The Court dismissed the case on standing grounds. Id. at 846. The Court reasoned that a judgment in NWF's favor requiring PHMSA to follow the CWA, rather than its regulations, would not redress NWF's claimed injuries, because whether the Secretary was following the CWA or the federal regulations, the results would have been the same. Id. Because NWF could not satisfy the redressability requirement to establish standing, the Secretary's cross-motion for summary judgment was granted. Id.
The present case concerns another challenge to the spill response plan approval process, albeit a narrower one. Instead of challenging the approval of every spill response plan for every oil pipeline in the last two decades, NWF is now challenging only the approval of two spill response plans for a pipeline known as Line 5 – a 30-inch-diameter pipeline that was constructed in 1953. It spans 641 miles beginning in Superior, Wisconsin, passing through Michigan's Upper Peninsula, under the Straits of Mackinac, through Michigan's Lower Peninsula, and across the St. Clair River, to Sarnia, Ontario, Canada. Enbridge Answer ¶¶ 2, 42, 80-81 (Dkt. 36); Fed. Def. Answer ¶¶ 83, 86 (Dkt. 35). The Straits of Mackinac are a six-mile-long section of water that joins Lake Michigan and Lake Huron into a single hydraulic system. NWF Mot. ¶ 3. It is spanned at its narrowest point (four miles) by the Mackinac Bridge, which connects Michigan's Upper and Lower peninsulas. Id. The portion of Line 5 that crosses the Straits of Mackinac splits into two submerged 20-inch-diameter pipelines running parallel to the Mackinac Bridge.
Although one has never occurred, an oil spill in the Straits of Mackinac poses a significant threat to Lake Michigan and Lake Huron. The currents in the Straits can be quite strong and tend to reverse direction every few days. David J. Schwab Decl., Ex. 1. to NWF Mot. to Amend, at PageID.865. According to a recent study, because of the reversing currents, an oil spill in the Straits is almost equally likely to be found east or west of the Straits, and could travel as far as nine miles in either direction. Id. ¶ 6. More than 700 miles of shoreline in Lakes Michigan and Huron are potentially vulnerable to an oil spill in the Straits. Id. ¶¶ 13-18.
To avoid such ecological disasters, legislative and regulatory measures have been adopted. A year after the 1989 Exxon Valdez spill, the Oil Protection Act, which amended section 311 of the CWA, was enacted, with the goal of preventing another such tragedy by prohibiting owners and operators of certain oil facilities from transporting oil unless they had a spill response plan approved by the President. See 33 U.S.C. § 1321(j)(5)(F)(i)-(ii).
The President delegated his authority under the CWA — to issue regulations and review and approve response plans — to different executive branch departments. See Executive Order No. 12777, 56 Fed. Reg. 54,757 (Oct. 18, 1991). He delegated to the Department of Transportation ("DOT") his responsibilities regarding "transportation-related onshore facilities." Id. The President delegated to the Department of the Interior ("DOI") his responsibilities regarding "offshore facilities." Id.
In 1993, the Secretary re-delegated authority for onshore facilities to an agency within DOT, the Research and Special Programs Administration ("RSPA") — which authority was delegated once again, in 2005, to RSPA's successor within DOT, PHMSA. See 49 C.F.R. § 1.97. In 1993, RSPA issued regulations denominated as "onshore" regulations. 58 Fed. Reg. 244 (codified at 49 C.F.R. Part 194). In addition to addressing land segments of oil pipelines, the regulations include references to those segments of pipelines that cross inland waters. See, e.g., 49 C.F.R. § 194.115.
At the same time, DOI issued an Interim Final Rule, 58 Fed. Reg. 7489-01 (February 8, 1993), which established "requirements for spill-response plans for offshore facilities including associated pipelines." The rule was meant to provide guidance to pipeline operators who were soon required to submit certain spill response plans to DOI. The interim final rule included proposed regulations, which defined the term "offshore" as "the area seaward of the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the area seaward of the line marking the limit of inland waters." Id.
Because Executive Order 12777 had expanded DOI's traditional role of regulating facilities on the Outer Continental Shelf, the department subsequently delegated its responsibilities regarding spill prevention to DOT and the Environmental Protection Agency ("EPA"). In a 1994 memorandum of understanding, DOI delegated to EPA "responsibility for non-transportation-related offshore facilities located landward of the coast line," and delegated to DOT "responsibility for transportation-related facilities, including pipelines, located landward of the coast line." 40 C.F.R. § Pt. 112, App. B.
Since that time, both RSPA and PHMSA have reviewed response plans for pipelines situated landward of the Nation's coasts, without challenge to their authority or the propriety of their actions, until NWF I was filed. After NWF I was initiated, the Secretary ratified RSPA's and PHMSA's approvals, including plans "covering pipeline segments located in, on, or under inland waters..." NWF I, 286 F.Supp.3d at 840. The Secretary also delegated to PHMSA "any and all pipeline-related authority" previously delegated to DOT either through the Executive Order or the Memorandum of Understanding. Id.
As noted above, this case involves two response plans. Under federal regulations, pipeline operators are required to submit a response plan for "a geographic area either along a length of pipeline or including multiple pipelines, containing one or more adjacent line sections, for which the operator must plan for the deployment of, and provide, spill response capabilities." 49 C.F.R. § 194.5. "The size of the zone is determined by the operator after considering available capability, resources, and geographic characteristics." Id.
PHMSA approved Enbridge's response plan for the Superior Region Response Zone on July 6, 2015 (the "2015 Superior Plan"); this plan covered a response zone that "begins at the Canadian border near Neche, North Dakota and continues across northern Minnesota into Wisconsin and Michigan."1 The small portion that covers Michigan includes certain segments of Line 5.2 PHMSA also approved Enbridge's response plan for the Great Lakes Region Response Zone on June 7, 2017 (the "2017 Great Lakes Plan").3 The Great Lakes zone covers...
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