Sierra Club, Inc. v. Bostick

Decision Date30 December 2013
Docket NumberCASE NO CIV-12-742-R
PartiesSIERRA CLUB, INC., CLEAN ENERGY FUTURE OKLAHOMA, and EAST TEXAS SUB REGIONAL PLANNING COMMISSION, Plaintiffs, v. LIEUTENANT GENERAL THOMAS P. BOSTICK (in his official capacity as Commanding General and Chief of Engineers of the U.S. Army Corps of Engineers, MAJOR GENERAL MICHAEL J. WALSH, in his official capacity as U.S. Army Commanding General for Civil and Emergency Operations; COLONEL RICHARD PRATT, in his official capacity as Tulsa District Commander of U.S. Army Corps of Engineers; Colonel Richard Pannell, in his official capacity as Galveston District Engineer of the U.S. Army Corps of Engineers; U.S. ARMY CORPS OF ENGINEERS, Defendants, TRANSCANADA KEYSTONE PIPELINE, LP, a Delaware limited partnership, and TRANSCANADA CORPORATION, a Canadian public company, et al., Intervenors.
CourtU.S. District Court — Western District of Oklahoma

On June 29, 2012, Plaintiffs filed this action to challenge the March 19, 2012reissuance of Nationwide Permit (NWP) 12 by the United States Army Corps of Engineers ("Corps") and the 2012 decisions by three regional offices of the Corps to issue verifications to Intervenor TransCanada Corporation indicating that certain projects for which pre-construction notification (PCN) was given could be pursued within the scope of NWP 12. Plaintiffs sought declaratory and injunctive relief in an effort to prevent TransCanada from initiating construction on a pipeline to run between Cushing, Oklahoma and Nederland, Texas. Plaintiffs' challenges are lodged pursuant to the Administrative Procedures Act ("APA"), the National Environmental Policy Act ("NEPA") and the Clean Water Act ("CWA"). On August 5, 2012, the Court entered an order denying Plaintiffs' request for preliminary injunctive relief. Plaintiffs thereafter appealed the denial to the United States Court of Appeals for the Tenth Circuit, which affirmed this Court's denial of preliminary injunctive relief. Sierra Club, Inc. v. Bostick, --- Fed.Appx. ---, 2013 WL 5539633 (10th Cir. Oct. 9, 2013). In the interim, Plaintiffs filed a motion for summary judgment to which Defendants and Intervenors have responded. Having considered the parties' submissions, the Court finds as follows.2

The origin of this dispute was TransCanada's desire to construct a pipeline between Hardisty, Alberta, Canada and Nederland, Texas. To that end, TransCanada sought permission from the U.S. Department of State to construct a cross-border pipeline, required because the pipeline would cross from Canada into the United States. Upon advice of theDepartment of State, President Obama denied the request in January 2012. Thereafter TransCanada divided its original intercontinental pipeline into segments, to include the current portion at issue herein, known as the Gulf Coast Pipeline.

In support of its efforts to construct the Gulf Coast Pipeline, TransCanada submitted PCN to three district offices of the Army Corps of Engineers through which the pipeline runs. TransCanada sought verification from the Tulsa, Fort Worth and Galveston District Offices that the project fell within the scope of NWP 12. The Galveston district issued its verification on June 25, 2012, followed by the Tulsa District on June 28, 2012,3 and finally, the Fort Worth District on July 16, 2012. Each District confirmed that the portion of the project within its jurisdiction could proceed under NWP 12, and informed TransCanada that the verification was valid until "the NWP is modified, reissued, or revoked." SWF 010594, SWG 0000001-00483, SWT 0004277. In response to the verifications, Plaintiffs filed the instant action asserting facial challenges to the reissuance of NWP 12, and challenging the verifications issued by the Corps' district offices.

This case centers around a permitting system established under the Clean Water Act, which operates to restore and maintain the "chemical, physical and biological integrity" of the nation's waters, in part by prohibiting dredging or filling of waters of the United States without a permit from the Corps. 33 U.S.C. §§ 1251, 1344; 40 C.F.R. § 230.1(a); Greater Yellowstone Coal. v. Flowers, 359 F.3d 1257, 1269 (10th Cir. 2004).

There are two types of section 404 permits: individual permits that authorize specific activities on a case-by-case basis, [33 U.S.C. § 1344(a)], and general permits that provide standing authorization for all activities that fit the description in the permit, id. § 1344(e). Individual permits are subject to the requirements of the National Environmental Policy Act ("NEPA"). 33 C.F.R. § 325.2(a)(4). A general nationwide permit, on the other hand, must undergo that extensive process at the time the permit is promulgated, rather than at the time an applicant seeks to discharge fill material under such a permit. Id. § 330.5(b)(3). Project proponents may usually "proceed with activities authorized by NWPs without notifying the [Corps]." Id. § 330.1(e)(1). The Corps does, however, allow permittees to request verification from the Corps that an activity complies with the terms and conditions of a nationwide permit, and in some cases permittees are required do so prior to beginning work under the permit. Id. § 330.6(a)(1).

Snoqualmie Valley Pres. Alliance v. U.S. Army Corps of Engineers, 683 F.3d 1155, 1158 (9th Cir. 2012).4

In carrying out his functions relating to the discharge of dredged or fill material under this section, the Secretary may, after notice and opportunity for public hearing, issue general permits on a State, regional, or nationwide basis for any category of activities involving discharges of dredged or fill material if the Secretary determines that the activities in such category are similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment. Any general permit issued under this subsection shall (A) be based on the guidelines described in subsection (b)(1) of this section, and (B) set forth the requirements and standards which shall apply to any activity authorized by such general permit.

33 U.S.C. § 1344(e)(1); see also 33 C.F.R. § 330.1 (establishing policies and procedures for the issuance of nationwide permits).

"Once a general permit has been issued, individual activities falling within thecategories of activities in the general permit may be authorized (or "verified") under that permit, again so long as their adverse environmental impacts do not exceed minimal levels and so long as they meet the additional restrictions contained in the permit." Maryland Native Plant Soc'y v. U.S. Army Corps of Engineers, 332 F.Supp.2d 845, 848 (D.Md. 2004)(citing 33 U.S.C. § 1344(e)). Ifnot, or if a project does not qualify for verification, "the Corps must evaluate it under the individual permit process under § 404(a), the corresponding regulations of which impose a host of additional requirements on the agency." Id. (citing 33 C.F.R. § 325.2)(footnote omitted). An application for individual permit is subject to public notice and comment before the Corps determines whether to issue the permit. 33 U.S.C. § 1344(a); 33 C.F.R. §§ 325.2(a)(2), 325.3(a).

Plaintiffs' first challenge the reissuance of NWP 12 under NEPA. "NEPA applies to activities authorized by the Corps under the CWA." Maryland Native Plant Soc'y, 332 F.Supp.2d at 849. NEPA is a procedural rather than substantive law., mandating that federal agencies follow certain procedure, but not dictating results. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 23 (2008)(NEPA imposes only procedural requirements to ensure that the agency will have available and carefully consider detailed information concerning significant environmental impacts). NEPA requires agencies to consider the environmental consequences of their actions, while mandating public participation in the decision-making process. Agencies must take a "hard look" at the environmental consequences of "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332. Before commencing activities covered by NEPA, an agency must prepare a"detailedstatement," an Environmental Impact Statement ("EIS"), which analyzes the potential environmental impact of a proposed action. 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1502.1. If, however, the significance of environmental impacts is unclear, an agency may alternatively prepare an Environmental Assessment ("EA"), "a concise public document . . . that serves to briefly provide sufficient evidence and analysis for determining whether to prepare an EIS or a finding of no significant impact (FONSI)." 40 C.F.R. § 1508.9(a). If after conducting an EA ,the agency finds that no EIS is needed, the agency issues a FONSI, which "means that the agency has determined its action will not have a significant effect on the human environment." Defenders of Wildlife v. Ballard, 73 F.Supp.2d 1094, 1101-02 (D.Ariz. 1999).

In the instant case, in the course of reissuing NWP 12 in 2012, the Corps issued a FONSI, after completing an EA and determining that the activities authorized by NWP 12 would only have minimal cumulative environmental impacts. "[I]ssuance of this NWP will not have significant impact on the quality of the human environment. Therefore, the preparation of an Environmental Impact Statement is not required." Decision Document at p. 46.5 Plaintiffs contend that the Corps' reissuance of NWP 12 violated both NEPA and the CWA, and thus it is necessary to consider what NWP 12 authorizes.

NWP 12 allows for "[a]ctivities required for the construction, maintenance, repair, andremoval of utility lines and associated facilities in waters of the United States, provided the activity does not result in the loss of greater than 1/2-acre of waters of the United States for each single and complete project." 77 Fed. Reg. 10271. The definition of "utility line" includes, "any pipe or pipeline for...

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