Red Lake Band of Chippewa Indians v. U.S. Army Corps of Eng'rs, Civil Action No. 20-3817 (CKK)

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtCOLLEEN KOLLAR-KOTELLY United States District Judge
Docket NumberCivil Action No. 20-3817 (CKK)
Decision Date07 February 2021


Civil Action No. 20-3817 (CKK)


February 7, 2021


Plaintiffs Red Lake Band of Chippewa Indians, White Earth Band of Ojibwe, Honor the Earth, and the Sierra Club ("Plaintiffs") bring this action against Defendant United States Army Corps of Engineers (the "Corps"), alleging violations of the National Environmental Policy Act ("NEPA"), the Clean Water Act ("CWA"), the Rivers and Harbors Act ("RHA"), and the Corps' permitting regulations. See Compl. ¶¶ 183-217, ECF No. 1. Specifically, Plaintiffs challenge the Corps' issuance of a permit to Intervenor-Defendant Enbridge Energy, Limited Partnership ("Enbridge"), authorizing Enbridge to discharge dredged and fill material into waters of the United States under Section 404 of the CWA and to cross waters protected by the RHA in its construction of a replacement for the Line 3 oil pipeline, which transports oil from Canada to Wisconsin, traversing North Dakota and Minnesota. See id. ¶¶ 3, 4, 7.

Presently before the Court is Plaintiffs' [2] Motion for a Preliminary Injunction. Plaintiffs argue that the Corps' environmental assessment underlying its decision to authorize the

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construction of Line 3 falls short of the requirements of NEPA and the CWA. Specifically, Plaintiffs challenge the adequacy of the Corps' discussion of the effects of potential oil spills, alternative construction routes, and alternative construction methods. Upon consideration of the pleadings,1 the relevant legal authorities, and the record before the Court,2 the Court shall DENY Plaintiffs' [2] Motion for a Preliminary Injunction because Plaintiffs fail to demonstrate a likelihood of success on the merits and that they will suffer irreparable harm.


A. Statutory and Regulatory Background

1. National Environmental Policy Act

NEPA requires the federal government to "identify and assess in advance the likely environmental impact of its proposed actions, including its authorization or permitting of private actions." Sierra Club v. U.S. Army Corps of Engineers, 803 F.3d 31, 36 (D.C. Cir. 2015) (citing

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Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 756-57 (2004)). NEPA "serves the twin purposes of ensuring that (1) agency decisions include informed and careful consideration of environmental impact, and (2) agencies inform the public of that impact and enable interested persons to participate in deciding what projects agencies should approve and under what terms." Id. at 36-37 (citing Pub. Citizen, 541 U.S. at 768). NEPA accomplishes these purposes by requiring agencies to take a "'hard look' at their proposed actions' environmental consequences in advance of deciding whether and how to proceed." Id. at 37 (citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350-51 (1989). NEPA "does not mandate particular results," but prohibits "uninformed—rather than unwise—agency action." Robertson, 490 U.S. at 350-51. "Agency actions with adverse environmental effects can thus be NEPA compliant where the agency has considered those effects and determined that competing policy values outweigh those costs." Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 255 F. Supp. 3d 101, 113 (D.D.C. 2017) (internal citation marks and quotation marks omitted).

NEPA's "major action-forcing provision . . . is the requirement that all agencies of the Federal government prepare a detailed environmental analysis"—an Environmental Impact Statement ("EIS")—for "major Federal actions significantly affecting the quality of the human environment." Found. on Econ. Trends v. Heckler, 756 F.2d 143, 146 (D.C. Cir. 1985) (quoting 42 U.S.C. § 4332(C) (internal quotation marks omitted)). An EIS must assess the action's anticipated "direct and indirect environmental effects," and consider "alternatives that might lessen any adverse environmental impact." Sierra Club, 803 F.3d at 37 (citing 42 U.S.C. § 4332(C); 40 C.F.R. § 1508.11)). "If any significant environmental impacts might result from the proposed agency action, then an EIS must be prepared before the agency action is taken." Grand

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Canyon Trust v. FAA, 290 F. 3d 339, 340 (D.C. Cir. 2002) (quoting Sierra Club v. Peterson, 717 F.2d 1409, 1415 (D.C. Cir. 1983)).

If it is unclear whether an action will "significantly affect[ ] the quality of the human environment," the federal agency "may first prepare an Environmental Assessment ("EA")." Theodore Roosevelt Conservation P'ship v. Salazar, 616 F.3d 497, 503 (D.C. Cir. 2010) (emphasis added) (internal citations and quotation marks omitted). An EA is "essentially, a preliminary consideration of potential environmental effects in a concise public document, designed to provide sufficient evidence and analysis for determining whether an EIS is needed." Sierra Club, 803 F.3d at 37 (internal citations and quotation marks omitted). The EA must discuss the "purpose and need for the proposed action, alternatives . . . and the environmental impacts of the proposed action and alternatives." 40 C.F.R. § 1501.5(c)(2).

To determine whether a federal action will "significantly" affect the quality of the environment (requiring an EIS), the agency must consider both direct and indirect effects of its decision. 40 C.F.R. §§ 1501.3; 1508.1(g). Indirect effects include those "caused by the actions and are later in time or farther removed in distance, but are still reasonably foreseeable." Id. § 1508.1(g). An effect is "reasonably foreseeable" if a "person of ordinary prudence would take it into account in reaching a decision." Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, --- F.3d ---, 2021 WL 244862, at *10 (D.C. Cir. Jan. 26, 2021) (quoting City of Shoreacres v. Waterworth, 420 F.3d 440, 453 (5th Cir. 2005)). Effects "do not include those effects that the agency has no ability to prevent due to its limited statutory authority or would occur regardless of the proposed action." 40 C.F.R. § 1508.1(g)(2).

If the agency determines based on its EA that an EIS is not required, the agency must issue a "finding of no significant impact ("FONSI"), which "briefly presents the reasons why the

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proposed agency action will not have a significant impact on the human environment." Pub. Citizen, 541 U.S. at 757-58 (internal citations omitted). "Each form of NEPA analysis—EA/FONSI or EIS—requires public notice and comment, . . . and each is subject to judicial review." Sierra Club, 803 F.3d at 37-38 (citing Pub. Citizen, 541 U.S. at 763-64; Grand Canyon Trust, 290 F.3d at 340-42).

2. Clean Water Act

The CWA seeks to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters" and to "increase the quality and quantity of the Nation's wetlands." 33 U.S.C. §§ 1251(a), 2317(a). The CWA, therefore, prohibits the discharge of dredged or fill materials into navigable waters of the United States absent authorization by the Corps pursuant to Section 404, 33 U.S.C. § 1344. Section 404 of the CWA assigns the Corps jurisdiction to issue permits authorizing the discharge of fill material into "navigable waters." 33 U.S.C. §§ 1342(a)(1), (4), 1344(a); see Sierra Club, 803 F.3d at 38. The Corps' permitting authority also extends to "wetlands adjacent to navigable waters." Nat'l Ass'n of Mfrs. v. Dep't of Defense, 138 S. Ct. 617, 625 (2018) (citing United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 132 (1985)); see also 33 C.F.R. § 328.3(a)(4) ("For the purposes of the Clean Water Act . . . the term 'waters of the United States' means . . . adjacent wetlands.").

Before the Corps issues a Section 404 permit, it must determine that there is "no practicable alternative" to the proposed activity "which would have less adverse impact on the aquatic ecosystem." 40 C.F.R. § 230.10(a). A practicable alternative is one which is "available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes." Id. § 230.10(a)(2). If there is any practicable alternative that would have a lesser impact on the aquatic ecosystem, the Corps must deny the application permit. Id. § 230.10(a). The Corps must also evaluate the "probable impacts" of the proposed

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activity and will grant the permit "unless the district engineer determines that [the activity] would be contrary to the public interest." 33 C.F.R. § 320.4(a)(1).

3. Rivers and Harbors Act

Section 10 of the Rivers and Harbors Act prohibits structures and activities that would obstruct navigable waters unless "the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army[.]" 33 U.S.C. § 403. Section 14 of the RHA—commonly referred to as "Section 408"—provides that actions impairing "work[s] built by the United States" require authorization by the Corps. 33 U.S.C. § 408; 33 C.F.R. § 320.2(e).

B. Factual Background

Intervenor-Defendant Enbridge operates "Line 3" a 34-inch diameter pipeline, running 1,097 miles from Edmonton, Alberta to Superior, Wisconsin and traversing portions of North Dakota and Minnesota ("Existing Line 3"). Compl. ¶ 2; Joint Ex. 2, Dep't of the Army Environmental Assessment and Statement of Findings ("EA-SOF") at 4; Joint Ex. 32, Decl. of Barry Simonson ("Simonson Decl.") ¶ 4. Enbridge and the Corps indicate that Existing Line 3, which was originally constructed in the 1960s, now suffers from corrosion and integrity issues, including a "large number of identified pipe defects and anomalies." Joint Ex. 2, EA-SOF at 16; Joint Ex. 32, Simonson Decl. ¶¶ 7, 8, 16. Enbridge represents that "operational and integrity-based safety concerns" including "corrosion and stress corrosion cracking on the pipeline" have required Enbridge to reduce the capacity of Existing Line 3...

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