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

• Citation: 803 F.3d 31
• Decision Date: 29 September 2015
• Docket Number: No. 14–5205.,14–5205.
• Parties: SIERRA CLUB, Appellant v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

803 F.3d 31

SIERRA CLUB, Appellant

v.UNITED STATES ARMY CORPS OF ENGINEERS, et al., Appellees.

No. 14–5205.

United States Court of Appeals, District of Columbia Circuit.

Argued April 9, 2015.

Decided Sept. 29, 2015.

Douglas P. Hayes argued the cause for appellant. With him on the briefs were Eric E. Huber and Joshua Stebbins.

Michael T. Gray, Attorney, U.S. Department of Justice, argued the cause for Federal appellees. With him on the brief were John C. Cruden, Assistant Attorney General, and Ty Bair and David C. Shilton, Attorneys.

David H. Coburn and Cynthia Taub were on the brief for appellee Enbridge Pipelines (FSP), L.L.C. Joshua H. Runyan entered an appearance.

Before: BROWN, PILLARD and WILKINS, Circuit Judges.

Opinion

Opinion for the Court filed by Circuit Judge PILLARD.

Opinion concurring in the judgment filed by Circuit Judge BROWN.

PILLARD, Circuit Judge:

The central question in this appeal is the scope of environmental review the National Environmental Policy Act (NEPA) required before a particular oil pipeline was built. Oil pipelines help to satisfy national and global energy demand by pumping tens of millions of barrels of oil across the United States each month. They have also sparked intense debates about energy and environmental policies. The proposed Keystone XL Pipeline alone has generated millions of comments to the government on a spectrum of issues. The construction and operation of pipelines necessarily affect land, water, air, plants, animals, and human life, and carry the potential for unintended damage. More than a dozen pipeline accidents occur on average each month in the United States—most minor, some grave. If not transported via pipelines, oil might remain in the ground and never be used, or might be brought to market in other ways—potentially by methods less efficient and more harmful than pipeline transportation.

The U.S. Secretary of State must approve oil pipelines that cross international borders, see Exec. Order 11,423, 33 Fed.Reg. 11,741 (Aug. 16, 1968), but that requirement is inapplicable to wholly domestic pipelines. Separately, the Pipeline and Hazardous Materials Safety Administration (PHMSA) within the U.S. Department of Transportation must approve oil spill response plans under the Oil Pollution Control Act of 1990 for pipelines that might spill oil into navigable waters or the shoreline, see 33 U.S.C. § 1321(j)(5)(A)(i), (C)(iv), (G) ; Executive Order 12,777, 56 Fed.Reg. 54,757, 54,760 (Oct. 18, 1991), 49 C.F.R. § 194.7, but there is no claim here PHMSA must approve a response plan before a pipeline can be built and begin operating.¹

Notwithstanding the absence of any general permitting requirement for domestic oil pipelines, federal ownership or control of lands and other assets, as well as resource-specific environmental statutes such as the Clean Water Act, often do call for federal approvals before an oil pipeline can be built. Where there is federal action, NEPA requires governmental review, with public input, of the full range of such action's reasonably foreseeable direct or indirect environmental effects. Federal actions subject to NEPA include federal authorizations granted to private parties, such as oil pipeline construction companies.

The Flanagan South oil pipeline pumps crude oil across 593 miles of American heartland from Illinois to Oklahoma. Almost all of the land over which it passes is privately owned. As soon as Enbridge Pipelines (FSP), LLC, (Enbridge) began building the pipeline in 2013, the Sierra Club, a national environmental nonprofit organization, sued the federal government seeking to set aside several federal agencies' regulatory approvals relating to the pipeline and to enjoin the pipeline's construction and operation in reliance on any such approvals.

Sierra Club's chief claim was that various federal easements and approvals that Enbridge obtained from the agencies gave necessary go-ahead to the Flanagan South project as a whole, and thus the entire pipeline was a foreseeable effect of federal action requiring public environmental scrutiny under NEPA. Sierra Club also claimed that one of the agencies, the United States Army Corps of Engineers (the Corps), unlawfully authorized dredge and fill activities at the pipeline's nearly two thousand minor water crossings by verifying that they fell within the authority of a general permit, Nationwide Permit 12, that the Corps had promulgated under the Clean Water Act. Sierra Club argued that the Corps impermissibly conducted its analyses of the water crossings' cumulative impacts by region, rather than considering the pipeline as a whole, and that its conclusions that the crossings would have only minimal adverse environmental effects were inadequately supported and conclusory. After Sierra Club filed suit, Enbridge promptly intervened as a defendant. The district court denied preliminary injunctive relief and entered summary judgment in favor of the agencies and Enbridge.

On appeal, Sierra Club principally contends that the district court erred by failing to require the agencies to analyze and invite public comment on the environmental impact of the whole pipeline under NEPA, including the lengthy portions crossing private land and not otherwise subject to federal approvals. Sierra Club also presses its challenge to the Corps's Clean Water Act verifications of the pipeline's many water crossings. Sierra Club further contends that the district court reversibly erred by failing to allow the organization to supplement and amend its complaint. Sierra Club's proposed new complaint added claims that the Corps and the Bureau of Indian Affairs within the U.S. Department of the Interior (the Bureau) had, while the litigation was pending, completed separate NEPA analyses relating to each of the easements the agencies had granted for the pipeline to cross federally controlled land, and that those analyses were insufficient.

We hold that the federal government was not required to conduct NEPA analysis of the entirety of the Flanagan South pipeline, including portions not subject to federal control or permitting. The agencies' respective regulatory actions—in the form of easements, Clean Water Act verifications, and authorization to harm or kill members of endangered species without incurring liability under the Endangered Species Act (ESA)—were limited to discrete geographic segments of the pipeline comprising less than five percent of its overall length. As explained below, the agencies were required to conduct NEPA analysis of the foreseeable direct and indirect effects of those regulatory actions. However, on the facts of this case, the agencies were not obligated also to analyze the impact of the construction and operation of the entire pipeline. We also reject Sierra Club's Clean Water Act challenge to the Corps's verifications of Flanagan South's water crossings under Nationwide Permit 12 because the Corps was authorized to conduct its review on a regional rather than nationwide basis, and the Corps's District Managers adequately supported their verification decisions. Finally, we hold that the district court did not abuse its discretion in denying Sierra Club's motion to supplement and amend its complaint, because the proposed new allegations would not have affected the dispositive legal analysis.

I. Background

A. Flanagan South Planning

Enbridge began the planning and permitting process for the Flanagan South project in 2011. The 593–mile–long pipeline was designed to ship roughly 600,000 barrels of oil per day across Illinois, Missouri, Kansas, and Oklahoma. The new pipeline would expand Enbridge's capacity to ship crude oil from Flanagan, Illinois, to a major terminal in Cushing, Oklahoma. From Cushing, the oil was to flow to refineries on the Gulf Coast and elsewhere. Enbridge designed the pipeline to run parallel to an existing pipeline, the Spearhead pipeline, which had been in operation since 2006.

Roughly four-fifths of Flanagan South would track within 50 feet of the existing Spearhead pipeline. Most of the 36?–diameter Flanagan South pipeline was to be buried at least four feet underground in trenches dug approximately ten feet wide and deep. As planned, the pipeline would pass underneath roads and streambeds and cross approximately 400 miles of farmland, 85 miles of forests, 68 miles of grasslands, 28 miles of developed land, and 10 miles of wetlands. Flanagan South's construction would require grading, excavation, or other forms of earth-disturbing activities in order to erect, inspect, and maintain the pipeline itself and its supporting infrastructure, such as pumping stations, mainline valves, pipe yards and access roads. The construction activities would affect swaths of land as wide as 135 feet, and ongoing maintenance would use a permanent 50–foot–wide right of way, kept clear by cutting back vegetation every three to five years and possible application of herbicides. Of the sixty eight miles of access roads anticipated for the pipeline, roughly seven miles would be newly constructed, with most of the new roads crossing non-forested, agricultural areas not requiring tree removal.

Enbridge budgeted more than $2.5 billion to build Flanagan South and sought to complete construction by June 2014, only ten months after breaking ground. Before starting construction, Enbridge negotiated rights of way across approximately 2,400 tracts of land owned by approximately 1,700 private landowners. The company conducted public outreach campaigns and solicited input from local officials, Indian nations, community groups, and landowners expected to be affected by the project. Enbridge also sought regulatory authorizations from local and state governmental entities, as well as federal agencies.

The parties do not dispute that, to complete construction of the pipeline, Enbridge required easements from the Corps and the Bureau to cross spans of federal and Indian lands, and Clean Water Act approvals from the Corps to...