Sierra Club v. U.S. Forest Serv., No. 15-2457

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtKAREN NELSON MOORE, Circuit Judge.
Citation828 F.3d 402
PartiesSierra Club, Plaintiff–Appellant, v. United States Forest Service, Defendant–Appellee, Enbridge Energy, Limited Partnership, Intervenor–Appellee.
Docket NumberNo. 15-2457
Decision Date30 June 2016

828 F.3d 402

Sierra Club, Plaintiff–Appellant
v.
United States Forest Service, Defendant–Appellee

Enbridge Energy, Limited Partnership, Intervenor–Appellee.

No. 15-2457

United States Court of Appeals, Sixth Circuit.

Argued: June 16, 2016
Decided and Filed: June 30, 2016
Rehearing En Banc Denied Aug. 3, 2016


ARGUED: Marianne G. Dugan, Eugene, Oregon, for Appellant. Lane N. McFadden, United States Department of Justice, Washington, D.C., for Federal Appellee. David H. Coburn, Steptoe & Johnson LLP, Washington, D.C., for Appellee Enbridge Energy. ON BRIEF: Marianne G. Dugan, Eugene, Oregon, for Appellant. Lane N. McFadden, United States Department of Justice, Washington, D.C., for Federal Appellee. David H. Coburn, Joshua Runyan, Steptoe & Johnson LLP, Washington, D.C., for Appellee Enbridge Energy.

Before: MOORE, SUTTON, and DONALD, Circuit Judges.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Plaintiff-Appellant Sierra Club appeals from the district court's decision granting summary judgment in favor of Defendants-Appellees United States Forest Service (“USFS”) and Enbridge Energy Limited Partnership (“Enbridge”). Sierra Club argues that the USFS violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332(2)(C), in failing to prepare an Environmental Impact Statement (“EIS”) or an Environmental Assessment (“EA”) prior to reissuing a permit to Enbridge to operate and maintain an oil pipeline on federal land. In granting summary judgment, the district court concluded that the USFS appropriately found that the reissuance of Enbridge's permit fell within a “categorical exclusion” and thus the agency was not required to prepare an EIS or an EA. For the reasons discussed below, we AFFIRM the judgment of the district court.

I. BACKGROUND

A. Factual Background

The federal government may grant a right-of-way through federal land “for pipeline purposes for the transportation of oil.” 30 U.S.C. § 185(a). Beginning in 1953, the USFS issued a “special use permit” to Lakehead Pipeline Company, Inc. (“Lakehead”), permitting the company to use an 8.10 mile strip of government land within the Lower Michigan National Forest “for the purpose of [ ] [c]onstructing, operating and maintaining a pipeline to transport crude oil.” R. 20-8 (1954 Permit at 1) (Page ID # 1639). The pipeline (“Line 5”) extends from Superior, Wisconsin to Sarnia, Ontario. Id.

828 F.3d 405

In 1992, Lakehead changed its name to Lakehead Pipe Line Company, Limited Partnership, and the USFS reissued the special-use permit to this entity. R. 17-24 (1992 Permit at 1) (Page ID # 1323). The 1992 permit authorized the use of the right-of-way until December 31, 2012, and noted that the USFS “shall renew the authorization” for a reasonable term “[i]f the right-of-way project or facility is still being used for the purpose(s) previously authorized and is being operated and maintained in accordance with all the provisions of the authorization” and other applicable laws and resource-management plans. Id. at 6 (Page ID # 1328).

The 1992 permit was amended in 2002 when Lakehead changed its name to Enbridge Energy, Limited Partnership. R. 17-26 (2002 Amendment at 1) (Page ID # 1337). The amendment noted that “only the name of the company has changed not the ownership” and that “[a]ll other conditions of the permit as amended, remain unchanged.” Id. In 2011 and 2012, after a different Enbridge pipeline ruptured and spilled oil into the Kalamazoo River, Enbridge sought and received amendments to the 1992 permit in order to install “emergency flow release device[s]” on Line 5. R. 18-1 (2011 Amendment) (Page ID # 1394); see R. 18-3 (2012 Amendment) (Page ID # 1407).

In September 2012, Enbridge requested that the USFS renew the special-use permit for Line 5. See R. 14-14 (Decision Memo at 1) (Page ID # 336); R. 14-16 (9/26/12 Email at 1) (Page ID #400). The USFS reviewed Enbridge's request in 2013 and conducted field studies on the potential impact on certain wildlife and vegetation in the area. See R. 17-12 (4/2/13 Letter at 1–2) (Page ID # 1219–20); R. 14-14 (Decision Memo at App'x C) (Page ID # 354); id. at App'x D (Page ID # 377). In 2014, the USFS contacted the United States Department of Transportation's (“DOT”) Pipeline and Hazardous Materials Safety Administration (“PHMSA”) in order to confirm that Enbridge and Line 5 were in compliance with state and federal pipeline regulations. See R. 15-32 (2/28/14 Email at 1) (Page ID # 1007).

On January 29, 2014, the USFS began a public comment period for the proposed renewal of Enbridge's special-use permit. See R. 14-2 (Public Notice at 1–3) (Page ID # 228–30). The USFS proposed that a categorical exclusion to the documentation required by an EIS or EA applied. Id. at 2 (Page ID # 229). Specifically, the USFS proposed that the renewal fell into category 15 (“CE-15”), which applies to the

[i]ssuance of a new special use authorization for a new term to replace an existing or expired special use authorization when the only changes are administrative, there are not changes to the authorized facilities or increases in the scope or intensity of authorized activities, and the applicant or holder is in full compliance with the terms and conditions of the special use authorization.

Id. at 2 (Page ID # 229) (quoting 36 C.F.R. § 220.6(e)(15) ).

The USFS received comments from the public in response, including a letter from Marvin Roberson, a Sierra Club Forest Ecologist, sent on behalf of Sierra Club. See R. 14-9 (Roberson Letter at 1–3) (Page ID # 318–20). Sierra Club's letter objected to the application of CE-15 for three reasons. Id. at 1 (Page ID # 318). First, Sierra Club stated that no EA or EIS had ever been completed for Line 5 because the original permit was issued “prior to the enactment of NEPA.” Id. at 2 (Page ID # 319). Second, Sierra Club argued that intensity of activities along the pipeline had increased over the past two years because oil flow within the pipeline had

828 F.3d 406

“increased by over 10%,” and thus the exclusion did not apply. Id. Finally, Sierra Club contended that Enbridge's prior permit expired on December 31, 2012; because Enbridge was therefore not “renew[ing]” its prior permit request, Sierra Club asserted that the USFS must treat the application as a new permit request and prepare an EA or EIS. Id.

The USFS responded on March 31, 2014. See R. 15-40 (3/31/14 Letter) (Page ID # 1023). The USFS explained that Enbridge's renewal “made no request to change the pipeline operations” as authorized by the existing permit, and that the existing “permit is for the operation and maintenance of the pipeline,” not for any particular oil flow through the pipeline, which “is regulated by the [PHMSA] of the [DOT] and outside the scope of this project.” Id. at 1–2 (Page ID # 1023–24). The USFS also noted that the language of CE-15 explicitly referred to expired permits. Id. at 3 (Page ID # 1025).

On December 10, 2014, the USFS issued a “Decision Memo,” concluding that Enbridge should be reissued a permit to continue its existing operations and “that this decision qualifies for categorical exclusion from documentation in an [EIS] or [EA]” under CE-15. R. 14-14 (Decision Memo at 13) (Page ID # 348). In reaching this conclusion, the memo evaluated whether any “extraordinary circumstances” applied such that an EA or EIS was necessary regardless of the otherwise applicable exclusion. Id. at 5 (Page ID # 340). Accordingly, the memo discussed the impact that the reissuance would have on certain flora and fauna in the area, and specifically, whether the reissuance would affect the Kirtland's warbler, an endangered songbird. Id. at 5–6 (Page ID # 340–41). The USFS concluded that the reissuance “[w]ould have no effect on the Kirtland's warbler.” Id. at 6 (Page ID # 341). The USFS attached the biological assessment reports prepared by a biologist and a botanist. See id. at App'x C (Page ID # 354–68); id. at App'x D (Page ID # 377–80). The memo concluded that “no extraordinary circumstances which may result in significant individual or cumulative effects on the quality of the environment” existed. Id. at 13 (Page ID # 348).

The USFS subsequently re-issued Enbridge's special-use permit. R. 51-2 (2015 Permit) (Page ID # 2385).

B. Procedural History

The Sierra Club filed suit against the USFS in the United States District Court for the Eastern District of Michigan on January 14, 2015, alleging that the USFS violated NEPA by not preparing an EA or EIS. R. 1 (Compl. at 1, 7–13) (Page ID # 1, 7–13). Enbridge intervened as a defendant on February 25, 2015. R. 7 (Order Granting Mot. to Intervene) (Page ID #116). The parties filed cross-motions for summary judgment, see R. 27 (Pl. Mot. for Summ. J.) (Page ID # 1970); R. 37 (USFS Cross-Mot. for Summ. J.) (Page ID # 2092); R. 40 (Enbridge Cross-Mot. for Summ. J.) (Page ID # 2214), and each party also filed a response. See R. 36 (USFS Resp. to Pl. Mot. for Summ. J.) (Page ID # 2051); R. 39 (Enbridge Resp. to Pl. Mot. for Summ. J.) (Page ID # 2137); R. 44 (Pl. Resp. to Cross-Mot. for Summ. J.) (Page ID # 2301).

The district court granted the defendants' cross-motions for summary judgment on September 30, 2015,...

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    ...in appropriate circumstances.").412 F.Supp.3d 805 In some cases, neither an EA nor an EIS is required. Sierra Club v. U.S. Forest Serv. , 828 F.3d 402, 408 (6th Cir. 2016). Instead, an agency may adopt a "categorical exclusion" for actions that "do not individually or cumulatively have a si......
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    ...of an EIS in appropriate circumstances."). In some cases, neither an EA nor an EIS is required. Sierra Club v. U.S. Forest Serv., 828 F.3d 402, 408 (6th Cir. 2016). Instead, an agency may adopt a "categorical exclusion" for actions that "do not individually or cumulatively have a significan......
  • Mountain Cmtys. for Fire Safety v. Elliott, 20-55660
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 4, 2022
    ...definition of '[s]ignificantly' provided in § 1508.27" when it analyzes those resource conditions. Sierra Club v. U.S. Forest Serv., 828 F.3d 402, 411 (6th Cir. 2016). To require an agency to analyze the extraordinary circumstances factors once (under resource conditions), and then again un......
  • Request a trial to view additional results
11 cases
  • Ohio v. U.S. Army Corps of Eng'rs, CASE NO. 1:15–CV–679
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • May 4, 2017
    ...v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) ; Sierra Club v. United States Forest Serv., 828 F.3d 402, 407 (6th Cir. 2016).259 F.Supp.3d 765Finally, although the Corps has declared its desire to use the disputed funds for other projects, it has......
  • Oak Ridge Envtl. Peace Alliance v. Perry, No.: 3:18-cv-150 REEVES/POPLIN
    • United States
    • United States District Courts. 6th Circuit. Eastern District of Tennessee
    • September 24, 2019
    ...in appropriate circumstances.").412 F.Supp.3d 805 In some cases, neither an EA nor an EIS is required. Sierra Club v. U.S. Forest Serv. , 828 F.3d 402, 408 (6th Cir. 2016). Instead, an agency may adopt a "categorical exclusion" for actions that "do not individually or cumulatively have a si......
  • Oak Ridge Envtl. Peace All. v. Perry, No.: 3:18-cv-150
    • United States
    • U.S. District Court — Eastern District of Tennessee
    • September 24, 2019
    ...of an EIS in appropriate circumstances."). In some cases, neither an EA nor an EIS is required. Sierra Club v. U.S. Forest Serv., 828 F.3d 402, 408 (6th Cir. 2016). Instead, an agency may adopt a "categorical exclusion" for actions that "do not individually or cumulatively have a significan......
  • Mountain Cmtys. for Fire Safety v. Elliott, 20-55660
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 4, 2022
    ...definition of '[s]ignificantly' provided in § 1508.27" when it analyzes those resource conditions. Sierra Club v. U.S. Forest Serv., 828 F.3d 402, 411 (6th Cir. 2016). To require an agency to analyze the extraordinary circumstances factors once (under resource conditions), and then again un......
  • Request a trial to view additional results

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