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

• Decision Date: 13 November 2013
• Docket Number: Civil Action No. 13–cv–1239 (KBJ)
• Citation: 990 F.Supp.2d 9
• Parties: Sierra Club, et al., Plaintiffs, v. United States Army Corps of Engineers, et al., Defendants.
• Court: U.S. District Court — District of Columbia

990 F.Supp.2d 9

Sierra Club, et al., Plaintiffs,

v.United States Army Corps of Engineers, et al., Defendants.

Civil Action No. 13–cv–1239 (KBJ)

United States District Court, District of Columbia.

November 13, 2013

James G. Murphy, National Wildlife Federation, Montpelier, VT, Doug Hayes, Eric E. Huber, Sierra ClubEnvironmental Law Program, Boulder, CO, Joshua R. Stebbins, Sierra ClubEnvironmental Law Program, Washington, DC, for Plaintiffs.

Eileen T. McDonough, U.S. DOJ—Environmental Defense Section, John J. Gowel, United States Attorney's Office for the District of Col., Ty Bair, US Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

KETANJI BROWN JACKSON, United States District Judge

The Sierra Club and the National Wildlife Federation (“Plaintiffs”) have brought this action for a declaratory judgment against several federal agencies and their executive officers in their official capacity (the “Federal Agencies”) regarding construction of the Flanagan South Pipeline, a domestic oil pipeline running from Illinois to Oklahoma (the “FS Pipeline”).¹ Plaintiffs allege that the Federal Agencies have failed to assess adequately the environmental impacts of this privately-owned pipeline, in violation of the National Environmental Policy Act (“NEPA”), the Clean Water Act (“CWA”), and the Administrative Procedure Act (“APA”). In addition, Plaintiffs have now filed a motion for a preliminary injunction that asks the Court to enjoin the actions of the Federal Agencies in relation to the FS Pipeline, and to enjoin construction and operation of the entire pipeline (which is in the process of being constructed mostly on privately-owned land) pending a final ruling on the merits of the case.

This Court has considered the parties' briefs on the motion for a preliminary injunction, the arguments made at the preliminary injunction hearing, the portions of the record that the parties have submitted in support of and in opposition to the motion, and the complex web of statutes and regulations that Plaintiffs' allegations implicate. Although Plaintiffs have drafted a complaint that attacks the pipeline-related actions of the several government agencies separately, Plaintiffs' central contention in this case is that the Federal Agencies had a collective statutory obligation to perform an in-depth environmental review of the entire FS Pipeline before any construction on the pipeline could commence. At least on the current record, however, Plaintiffs have significantly overstated the breadth of federal involvement in the pipeline project and have failed to establish sufficiently that applicable federal statutes and regulations would require the extensive environmental review process that Plaintiffs seek. Moreover, Plaintiffs have fallen short of demonstrating that irreparable harm will result if the current construction proceeds during the pendency of this litigation, and the Court is not convinced that the balance of harms and public interest factors weigh in Plaintiffs' favor.

Consequently, as explained further below, the Court concludes that Plaintiffs' motion for a preliminary injunction must be DENIED.

I. BACKGROUNDA. The Flanagan South Pipeline

The FS Pipeline is a proposed 589–mile domestic oil pipeline that, once constructed, will transport tar sands crude oil from Pontiac, Illinois, through the states of Missouri and Kansas, and ultimately into Cushing, Oklahoma. Enbridge Pipelines (FSP) LLC (“Enbridge”), one of the leading energy transportation companies in North America, owns the planned pipeline. Enbridge began construction of the pipeline on August 14, 2013, and expects to complete the pipeline in the summer of 2014.

At least 560 miles of the 589 miles of pipe that will comprise the FS Pipeline will traverse land that is entirely privately owned. According to Enbridge, the company has identified 2,368 tracts owned by 1,720 separate landowners along the course of the pipeline and has secured 96% of the land rights along the entire route. Thus, with respect to the vast majority of the pipeline, no federal permission or authorization is required for construction. However, it is undisputed that the FS Pipeline will at times cross federal lands and waterways at various points along its planned route through the heart of the country. Three types of federal crossings will occur and are at issue in this litigation: (1) 13.68 total miles of “waters of the United States” (as defined in the CWA and its implementing regulations) that are primarily located on private land but are subject to the jurisdiction of the Army Corps of Engineers (the “Corps”) under the CWA ²; (2) 12.3 miles of Native American land that is subject to the jurisdiction of the Bureau of Indian Affairs (“BIA”); and (3) 1.3 miles of land that the federal government owns and that is also under the Corps's jurisdiction. To construct and operate the portion of the pipeline that traverses these 27.28 total miles, Enbridge must have federal approval, and a separate statutory and regulatory scheme, discussed below, governs each type of land or water crossing.

B. Alleged Federal Involvement With The Flanagan South Pipeline

Because Congress has not authorized the federal government to oversee construction of a domestic oil pipeline, Plaintiffs' complaint relies on a series of federal environmental laws and regulations that require federal agencies with some involvement in domestic pipeline construction to follow certain procedures. The applicable statutes and regulations are set forth in Part C below. The following description of Plaintiffs' allegations regarding federal involvement with the FS Pipeline provides the necessary context.

1. The Corps's “Verifications” Under the Clean Water Act and Nationwide Permit 12

When constructed, the FS Pipeline will cross approximately 1,950 wetlands or waters under the jurisdiction of the Corps—an area that, as noted above, totals 13.68 miles. To undertake the portions of the FS Pipeline construction project that may impact these waterways, Enbridge is required by law to seek federal approval, as mentioned above and explained further below. In August and September of 2012, Enbridge filed a formal notice under the CWA's general permitting system requesting Corps district engineers from each of the four Corps districts through which the proposed FS Pipeline runs to verify that construction of the FS Pipeline project is consistent with a pre-existing general permit that the Corps had previously issued.³ Enbridge's notice included specific plans for mitigating any potential adverse impacts from the FS Pipeline construction project, as the general permitting system requires. One year later, in August and September 2013, each of the four Corps districts issued a verification letter to Enbridge, confirming that the FS Pipeline's water crossings were consistent with an applicable general permit, provided Enbridge undertook the mitigation plans outlined in its notice.

2. The Corps's Consideration Of Easements For Construction On Federal Lands

In addition to the wetlands under the Corps's jurisdiction, the FS Pipeline passes through approximately 1.3 miles of other federal land under the jurisdiction of the Corps, consisting of 0.7 miles of land at the Mississippi River near Quincy, Illinois, and 0.6 miles of land at the Arkansas River near Tulsa, Oklahoma. Congress has empowered federal agencies to grant rights-of-way across lands “for pipeline purposes for the transportation of oil, natural gas, synthetic liquid or gaseous fuels[,]” 30 U.S.C. § 185(a) (2012), and the governing statute expressly places numerous responsibilities on an agency considering whether to permit construction on federal land, including safety requirements, notice requirements, and reporting requirements (including reporting to specific Congressional committees), id. § 185(g), (k), (w). An agency must also comply with applicable environmental statutes and regulations, such as the National Environmental Policy Act, discussed below. Id. § 185(h).

In April and May of 2013, Enbridge applied to the relevant Corps districts for easements to construct the 1.3 mile segment of the FS Pipeline that runs over federal land. Enbridge submitted its applications using a standard form for the construction of transportation and utilities systems on federal lands—an application process that the Corps subjects to the same review procedures as any third-party request for the use of Corps lands. As of the writing of this Opinion, the Corps had informed the relevant Congressional committees (the House and Senate Committees on Natural Resources) about Enbridge's easement applications, and had begun an environmental assessment of the project, but had not yet reached a decision about whether or not to grant Enbridge's applications.

3. The BIA's Consideration Of Easements For Construction On Indian Land That The Federal Government Holds In Trust

Under 25 U.S.C. § 323, the BIA “is empowered to grant rights-of-way for all purposes, subject to such conditions as [the Secretary of the Interior] may prescribe, over and across any lands now or hereafter held in trust by the United States for individual Indians or Indian tribes.” The BIA has promulgated regulations governing the granting of easements over Indian land. See generally 25 C.F.R. Part 169 (2013). These regulations include specific guidelines for, among other things, applications, surveying, and providing consideration to landowners. Id. The regulations also include specific provisions pertaining to easements for oil or gas pipelines. See id. § 196.25.

The proposed FS Pipeline crosses over 34 parcels of privately-owned Indian land subject to the BIA's jurisdiction, comprising a total of 12.3 miles. As of the writing of this Opinion, Enbridge had applied to the BIA for easements over these parcels, and the BIA was in the process of conducting an environmental assessment of the impact of the pipeline on...