Red Lake Band of Chippewa Indians v. United States Army Corps of Eng'rs

• Decision Date: 07 October 2022
• Docket Number: Civil Action 20-3817 (CKK),21-0189 (CKK)
• Parties: RED LAKE BAND OF CHIPPEWA INDIANS, et al., Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS, Defendant, ENBRIDGE ENERGY, LIMITED PARTNERSHIP, Defendant-Intervenor. FRIENDS OF THE HEADWATERS, Plaintiff, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants, ENBRIDGE ENERGY, LIMITED PARTNERSHIP, Defendant-Intervenor.
• Court: U.S. District Court — District of Columbia

RED LAKE BAND OF CHIPPEWA INDIANS, et al., Plaintiffs,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, Defendant,

ENBRIDGE ENERGY, LIMITED PARTNERSHIP, Defendant-Intervenor.

FRIENDS OF THE HEADWATERS, Plaintiff,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants,

ENBRIDGE ENERGY, LIMITED PARTNERSHIP, Defendant-Intervenor.

Civil Action Nos. 20-3817 (CKK), 21-0189 (CKK)

United States District Court, District of Columbia

October 7, 2022

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

This consolidated action arises from the United Army Corps of Engineers' (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 Clean Water Act and to cross waters protected by the Rivers and Harbors Act in its replacement of sections of the Line 3 oil pipeline in Minnesota. Plaintiffs Red Lake Band of

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Chippewa Indians, White Earth Band of Ojibwe, Honor the Earth, Sierra Club, and Friends of the Headwaters (collectively, “Plaintiffs”) allege that the Corps' decision to issue these permits violated the National Environmental Policy Act, the Clean Water Act, the Rivers and Harbors Act, and the Corps' permitting regulations.

Presently before the Court are the parties' cross-motions for summary judgment. Upon consideration of the pleadings,^[1] the relevant legal authorities, and the administrative record,^[2] the

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Court concludes that the Corps complied with its obligations to assess the environmental consequences associated with its permits to Enbridge. Accordingly, the Court DENIES Plaintiffs' Motions for Summary Judgment (ECF Nos. 52, 53) and GRANTS Federal Defendants' and Intervenor Defendant Enbridge's Cross Motions for Summary Judgment (ECF Nos. 61, 63)

I. BACKGROUND

A. Statutory and Regulatory Background

1. National Environmental Policy Act

The 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 Eng'rs, 803 F.3d 31, 36 (D.C. Cir. 2015) (“Flanagan South Pipeline”) (citing Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 756-57 (2004)). “NEPA's mandate, which incorporates notice and comment procedures 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 is a “purely procedural statute.” Oglala Sioux Tribe v. U.S. Nuclear Regulatory Comm'n, 45 F.4th 291, 299 (D.C. Cir. 2022). It “does not mandate particular results,” but prohibits

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“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 Eng'rs, 255 F.Supp.3d 101, 113 (D.D.C. 2017) (“Standing Rock 2017”) (quoting Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 191 (4th Cir. 2009)).

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) (emphasis added) (internal quotation marks omitted) (quoting 42 U.S.C. § 4332(C)). An EIS must assess the action's anticipated “direct and indirect environmental effects,” and consider “alternatives that might lessen any adverse environmental impact.” Flanagan South Pipeline, 803 F.3d at 37 (citing 42 U.S.C. § 4332(C); 40 C.F.R. § 1508.11^[3]). “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 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 prepare an Environmental Assessment (“EA”).

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Theodore Roosevelt Conservation P'ship v. Salazar, 616 F.3d 497, 503 (D.C. Cir. 2010) (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.” Flanagan South Pipeline, 803 F.3d at 37 (internal citations and quotation marks omitted); 40 C.F.R. §§ 1501.4(c), 1508.9(a). An EA must include “brief discussions of the need for the proposal, of alternatives[.]” and “of the environmental impacts of the proposed action and alternatives[.]” 40 C.F.R. § 1508.9(b).

To determine whether a federal action will “significantly” affect the quality of the environment, the agency must consider the “context and intensity” of the proposed action and must address both “direct” and “indirect” caused by the proposed action. 40 C.F.R. §§ 1508.8, 1508.27. Indirect effects include those “caused by the actions and are later in time or farther removed in distance, but are still reasonably foreseeable.” Id. § 1508.8(b). 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 Eng'rs, 985 F.3d 1032, 1050 (D.C. Cir. 2021) (“ Standing Rock 2021”) (quoting City of Shoreacres v. Waterworth, 420 F.3d 440, 453 (5th Cir. 2005)).

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 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.” Flanagan South Pipeline, 803 F.3d at 37-38 (citing Pub. Citizen, 541 U.S. at 763-64; Grand Canyon Trust, 290 F.3d at 340-42).

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2. Clean Water Act

The Clean Water Act (“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 Flanagan South Pipeline, 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 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).

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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 sought the permits challenged by Plaintiffs in this action to replace portions of its “Line 3” oil pipeline, which transports crude oil from Edmonton, Alberta to Superior, Wisconsin, traversing portions of North Dakota and Minnesota. See JA 29/AR 351. Originally constructed in the 1960s, “Existing Line 3” suffers from corrosion and integrity issues, including a “large number of identified pipe defects and anomalies.” JA 41/AR 363. Due to safety and integrity concerns, such as “stress corrosion cracking and long-seam cracking,” Enbridge reduced the capacity of Existing Line 3 from its historical average of...