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

• Decision Date: 28 August 2020
• Docket Number: 1:20-CV-460-RP
• Parties: SIERRA CLUB, Plaintiff, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants, and Kinder Morg an Texas Pipeline LLC and Permian Highway Pipeline, LLC, Intervenor-Defendants.
• Court: U.S. District Court — Western District of Texas

482 F.Supp.3d 543

SIERRA CLUB, Plaintiff,

v.UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants,andKinder Morg an Texas Pipeline LLC and Permian Highway Pipeline, LLC, Intervenor-Defendants.

1:20-CV-460-RP

United States District Court, W.D. Texas, Austin Division.

Signed August 28, 2020

Joshua D. Smith, Pro Hac Vice, Sierra Club, Oakland, CA, Mary Melissa Whittle, Marco Kelly Guerrero, Guerrero & Whittle PLLC, Austin, TX, Rebecca L. McCreary, Pro Hac Vice, Sierra Club, Boulder, CO, for Plaintiff.

Devon Lehman McCune, Jeffrey Neel Candrian, U.S. Department of Justice, Denver, CO, for Defendants.

Ann D. Navaro, Pro Hac Vice, Brittany M. Pemberton, Pro Hac Vice, Bracewell LLP, Washington, DC, William Stephen Benesh, Bracewell LLP, Austin, TX, for Intervenor-Defendants.

ORDER

ROBERT PITMAN, UNITED STATES DISTRICT JUDGE

Before this Court is Plaintiff Sierra Club's Motion for Preliminary Injunction. (Dkt. 10). Defendants United States Army Corps of Engineers (the "Corps") and several officials¹ at the Corps (together, the "Federal Defendants") filed a response in opposition. (Dkt. 29). Intervenor-Defendants Kinder Morgan Texas Pipeline LLC and Permian Highway Pipeline LLC (together, "Kinder Morgan") filed a separate response in opposition. (Dkt. 30). Sierra Club filed a reply. (Dkt. 33). The Court held a preliminary injunction hearing on July 31, 2020. (Dkt. 39).

Also before this Court is Sierra Club's opposed motion for leave to file two supplemental declarations, filed after the hearing on the motion preliminary injunction. (Dkt. 40). Kinder Morgan filed a response, (Dkt. 41), and Sierra Club filed a reply, (Dkt. 43). After reviewing the briefing, the record, and the relevant law, the Court will grant Sierra Club's motion for leave to file supplemental declarations.

Having considered the parties’ briefing—including the briefing in support of and in response to Sierra Club's motion for leave to file supplemental declarations—the arguments presented at the hearing, the record, and the relevant law, the Court will deny Sierra Club's motion for preliminary injunction.

I. BACKGROUND

A. Lawsuit About the Permian Highway Pipeline

This case concerns the construction of the Permian Highway Pipeline (the "Pipeline"), a 429-mile long natural gas pipeline that will run from Reeves County, Texas to Colorado County, Texas. (Compl., Dkt. 1, at 1–2). Sierra Club and its members seek to halt work on the Pipeline at 129 water crossings. (Mot. Prelim. Injunc., Dkt. 10, at 1, 43). Sierra Club alleges the Corps authorized the Pipeline to be constructed at those water crossings in violation of the National Environmental Policy Act ("NEPA"). (Id. ).

Sierra Club filed its lawsuit on April 30, 2020. (Dkt. 1). In its complaint, Sierra Club brings three claims: (1) the Corps has not complied with the vacatur of Nationwide Permit 12 ("NWP 12") and Kinder Morgan therefore continues its work on the Pipeline without a valid permit; (2) the Corps violated NEPA by failing to perform a NEPA analysis when its Fort Worth District issued a verification for a portion of the Pipeline that incorporated the terms and conditions of the Biological Opinion and Incidental Take Statement from the U.S. Fish and Wildlife Service (the "Service"); and, similarly, (3) the Corps violated NEPA by failing to perform a NEPA analysis when its Galveston District issued a verification for a portion of the Pipeline that incorporated the terms and conditions of the Biological Opinion and Incidental Take Statement from the Service. (Id. at 23–25). Sierra Club filed its motion for preliminary injunction on June 10, 2020, requesting the Court enjoin the Corps’ verifications pursuant to Sierra Club's second and third claims. (Mot. Prelim. Injunc., Dkt. 10, at 1). Sierra Club does not raise its first claim regarding the vacatur of the NWP 12 in the context of its motion for preliminary injunction.² (Id. at 8, n.1).

This case involves an interplay between several regulatory schemes, which the Court will discuss below, before turning to the regulatory steps undertaken by the Federal Defendants and Kinder Morgan.

B. Controlling Regulatory Schemes

1. Clean Water Act

When a proposed project involves the waters of the United States, applicants must comply with the Clean Water Act. 33 U.S.C. § 1344. Under Section 404 of the Clean Water Act, the Corps authorizes such projects through individual and general permits, including nationwide permits "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." 33 U.S.C. § 1344(e). When the Corps issues or reissues a nationwide permit to authorize activities under Section 404 of the Clean Water Act, "it conducts national-scale cumulative impact assessment in accordance with the National Environmental Policy Act (NEPA) definition of ‘cumulative impact.’ " Issuance and Reissuance of Nationwide Permits, 82 Fed. Reg. 1860, 1861 (Jan. 6, 2017). The Corps satisfies its NEPA obligation when it "finalizes the environmental assessment in its national decision document for the issuance or reissuance of an NWP." Id.

Under its general permitting authority, the Corps issued NWP 12, which allows for utility line construction in waters of the United States "provided the activity does not result in the loss of greater than 1/2 acre of [U.S. waters] for each single and complete project." (Compl., Dkt. 1, at 10) (citing 82 Fed. Reg. at 1,985 ). Some NWPs, like the one at issue in this case, require project proponents "to notify Corps district engineers of their proposed activities prior to conducting regulated activities, so that the district engineers can make case-specific determinations of NWP eligibility." 82 Fed. Reg. at 1,861. This Preconstruction Notification ("PCN") provides the district engineer with the opportunity to review a proposed activity to ensure that it qualifies for NWP authorization. Id. When a Corps district receives a PCN, the district engineer reviews it and determines "whether the proposed activity will result in no more than minimal individual and cumulative adverse environmental effects." Id.

2. Endangered Species Act

The core protection under the Endangered Species Act ("ESA") is Section 9. ESA § 9; 16 U.S.C. § 1538(a). Section 9 makes it illegal to "take" any member of an endangered species. Id. The ESA defines "take" to mean "to harass, harm, pursue, hunt, shoot, wound

, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(19). "Harm" means "an act which actually kills or injures wildlife," including "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering." 50 C.F.R. § 17.3.

However, the incidental taking of an endangered species is permitted under two exceptions embodied in Section 7 and Section 10 of the ESA, codified at 16 U.S.C. § 1536 and 16 U.S.C. § 1539, respectively. Under the Section 10 exception, private parties may apply for an incidental take permit after navigating a comparatively rigorous and time-consuming procedure. 16 U.S.C. § 1539. By contrast, the Section 7 exception provides a procedure through which federal agencies and certain "applicants" may obtain determinations in the form of incidental take statements through a consultation process between the federal action agency and the Service.

Under Section 7, a federal agency must "insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat of such species."

Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt. , 698 F.3d 1101, 1107 (9th Cir. 2012) (citing 16 U.S.C. § 1536(a)(2) ). Here, the relevant federal action agency is the Corps. Any activity authorized under a Clean Water Act NWP that may affect a listed species may not proceed "unless ESA section 7 consultation addressing the effects of the proposed activity has been completed." 82 Fed. Reg. at 1,999. If the Corps determines that a proposed action may affect listed species or critical habitat, it must initiate the formal consultation process with the appropriate wildlife agency—in this case, the Service. 50 C.F.R. § 402.14(a).

Formal consultation is a mandatory process for proposed projects that may adversely affect listed species or critical habitat. See id. The process is initiated in writing by the relevant federal agency (here, the Corps) and concludes with the issuance of a biological opinion by the Service. 16 U.S.C. § 1536(b)(3)(A). The biological opinion includes "[a] detailed discussion of the environmental baseline of the listed species and critical habitat; a detailed discussion of the effects of the action on listed species or critical habitat" and concludes with the Service's opinion as to whether the proposed action is likely "to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species" as required under Section 7(a)(2). 16 U.S.C. § 1536(a) ; 50 C.F.R. § 402.14(g)(4), (h). If the Service concludes that jeopardy or adverse modification is likely, "then any take resulting from the proposed action is subject to section 9 liability (unless that take is authorized by other provisions of the [ESA])." Ctr. for Biological Diversity , 698 F.3d at 1107.

In cases where the Service concludes that the project will not result in jeopardy or adverse modification, but also concludes that the proposed action is likely to result in the "incidental take" of an endangered species, the...