Sierra Club v. U.S. Army Corps of Eng'rs

• Decision Date: 16 December 2020
• Docket Number: No. 2:20-cv-00396-LEW,2:20-cv-00396-LEW
• Parties: SIERRA CLUB, et al., Plaintiffs v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants v. CENTRAL MAINE POWER CO., Intervenor Defendant
• Court: U.S. District Court — District of Maine

SIERRA CLUB, et al., Plaintiffs v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants v. CENTRAL MAINE POWER CO., Intervenor Defendant

No. 2:20-cv-00396-LEW

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

December 16, 2020

ORDER ON MOTION TO SUPPLEMENT OR AMEND COMPLAINT AND MOTION FOR PRELIMINARY INJUNCTION

The Sierra Club, the Natural Resources Council of Maine, and the Appalachian Mountain Club ("Plaintiffs") filed this civil action to challenge the decision of the United States Army Corps of Engineers ("the Corps") to issue a permit to Intervenor Defendant Central Maine Power Company ("CMP") under section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act. The Corps' decision turns on the Corps' finding that the permitted activities are not likely to have a significant adverse environmental impact on waters of the United States and, therefore, do not require the Corp to prepare an environmental impact statement.

The matter is before the Court on Plaintiffs' Motion for Leave to Supplement the Complaint (ECF No. 40) and Motion for Preliminary Injunction (ECF No. 18). Plaintiffs' Motion for Leave is hereby summarily GRANTED without further discussion. Plaintiffs' Motion for Preliminary Injunction is DENIED for reasons set forth at length below.

BACKGROUND STATEMENT

Central Maine Power Company proposes to construct the New England Clean Energy Connect ("NECEC"), an electricity transmission project that would connect Hydro Quebec to the New England energy grid ("the NECEC Project" or "the Project").¹ After proceedings by the Maine Department of Environmental Protection, the Land Use Planning Commission, and the Public Utilities Commission, the Project has evolved in a variety of ways designed to reduce its environmental impact and the Project has been green lighted by the State to begin construction. More specifically, the Maine Public Utilities Commission granted the Project a certificate of public convenience and necessity. The Commission's certificate has been subjected to legal challenge and that challenge has failed. NextEra Energy Res, LLC v. Maine Pub. Util. Comm'n, 227 A.3d 1117 (Me. 2000).

Because the Project passes over waters of the United States ("WOTUS"), inclusive of adjacent wetlands, and because the Project proposes both temporary and permanent fill of wetlands, CMP must obtain a permit from the Army Corps of Engineers under the Clean Water Act, 33 U.S.C. §§ 1251 et seq. Additionally, because the Project proposes that CMPwill bore a channel beneath the Kennebec River using horizontal directional drilling (HDD), CMP also must obtain a permit from the Corps under the Rivers and Harbors Act, 33 U.S.C. § 403. See also 33 C.F.R. § 322.3. The Corps' exercise of CWA and RHA permitting authority over the Project is subject to the National Environmental Policy Act, 42 U.S.C. §§ 4331 et seq., which requires the Corps to assess the environmental impacts of these proposed actions before permitting them.

On July 7, 2020, the Corps memorialized its NEPA assessment in a document entitled Department of the Army Environmental Assessment and Statement of Findings for the [NECEC Project] (hereafter "EA") (ECF No. 19-6). The Corps concluded its EA with a finding that the proposed actions subject to its CWA/RHA permit review authority do not amount to "a major federal action significantly affecting the quality of the human environment." EA at 160 § 12.3. The Corps then provided CMP with an "initial proffered permit" and, after reviewing CMP's objections to certain permit conditions, produced an EA Addendum (ECF No. 19-13) that "finalized" the permit on November 6, 2020.

The Corps's EA is subject to judicial review under the Administrative Procedures Act, 5 U.S.C. §§ 701 et seq. U.S. Army Corps of Eng'rs v. Hawkes Co., 136 S. Ct. 1807, 1813 (2016) (citing Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (to be final, agency action must consummate the decisionmaking process and determine rights and obligations such that legal consequences follow)).² Plaintiffs contend the Corps abused its discretion when it found the proposed actions are not a major federal action and they ask this Courtto vacate the Corps' EA, remand the CWA and RHA permit applications for further NEPA proceedings, and enjoin construction of the NECEC until the Corps produces an environmental impact statement for the Project.

LEGAL BACKDROP

The Clean Water Act (CWA) is part of "a comprehensive legislative attempt 'to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.'" United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 132 (1985) (quoting 33 U.S.C. § 1251). Section 404 of the CWA assigns the Corps jurisdiction to issue permits following public hearings, which permits, if granted, authorize the discharge of "any pollutant," including "fill material," into "navigable waters." 33 U.S.C. §§ 1342(a)(1), (4), 1344(a).

The CWA defines "navigable waters" as "the waters of the United States" (hereafter "waters" or "WOTUS"). Id. § 1362(7). That definition "makes it clear that the term 'navigable' ... is of limited import." United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 133 (1985). However, the CWA's definition of waters necessarily "delineates the geographic reach" of the Corps' permitting power. Nat'l Ass'n of Mfrs. v. Dep't of Defense, 138 S. Ct. 617, 625 (2018). As construed by the Supreme Court, the definition authorizes the Corps to extend its permitting authority at least as far as "wetlands adjacent to navigable waters." Id. (citing Riverside, 474 U.S. at 133). As explained in Riverside, it is reasonable for the Corps to exercise CWA jurisdiction over wetlands because it is reasonable for the Corps to conclude "that wetlands may affect the water quality of adjacent lakes, rivers, and streams." 474 U.S. at 134.

The Corps also has jurisdiction under Section 10 of the Rivers and Harbors Act (RHA) to authorize "any obstruction" of "the navigable capacity of any of the waters of the United States." 33 U.S.C. § 403. Pursuant to the Corps' regulations, "[f]or purposes of a section 10 permit, a tunnel or other structure or work under or over a navigable water of the United States is considered to have an impact on the navigable capacity of the waterbody." 33 C.F.R. § 322.3(a). Here, the proposed HDD activity is subject to RHA review. CMP's handling of extracted materials during this activity is also subject to the Corps' CWA oversight, if only to ensure that the materials are not released into the River or other waters and/or wetlands.

The Corps' does not exercise its CWA and RHA permit authority in a silo. The Corps takes into consideration other federal statutory schemes and regulations, as applicable, and the Corps generally considers inputs from federal and state regulatory agencies when reviewing permit applications, all of which it did for the NECEC.

Of particular significance to this civil action, the National Environmental Policy Act requires federal agencies to take a hard look at environmental concerns before approving actions that require federal permits or other forms of authorization. Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21 (1976). More specifically, NEPA requires federal agencies "to the fullest extent possible" to:

(A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision making which may have an impact on man's environment;

(B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality [to] insure that presently unquantifiedenvironmental amenities and values may be given appropriate consideration in decision making along with economic and technical considerations;

(C) include in every recommendation or report on proposals for ... major Federal actions significantly affecting the quality of the human environment, a [detailed environmental impact statement with five subject areas³];

(D) [independently evaluate the relevant findings of state agencies or officials with statewide jurisdiction over the project to the extent they contribute to the preparation of any statement required in subparagraph (C)];

(E) study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources;

(F) recognize the worldwide and long-range character of environmental problems and, where consistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and programs designed tomaximize international cooperation in anticipating and preventing a decline in the quality of mankind's world environment;

(G) make available to States, counties, municipalities, institutions, and individuals, advice and information useful in restoring, maintaining, and enhancing the quality of the environment;

(H) initiate and utilize ecological information in the planning and development of resource-oriented projects; and

(I) assist the Council on Environmental Quality established by subchapter II of this chapter.

42 U.S.C. § 4332(2) (alterations my own).

These requirements are "designed to promote human welfare by alerting governmental actors to the effect of their proposed actions on the physical environment." Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 772 (1983). NEPA "'places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action' and to 'ensure[] that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process.'" Mayaguezanos por la Salud y el Ambiente v. United States, 198 F.3d 297, 300 (1st Cir. 1999) (quoting Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97 (1983)). However, these requirements...