Spiller v. White, 02-50956.

• Citation: 352 F.3d 235
• Decision Date: 12 December 2003
• Docket Number: No. 02-50956.,02-50956.
• Parties: Ethel SPILLER; et al., Plaintiffs, Marian Collins; Barton Springs/Edwards Aquifer Conservation District; David Robertson, Plaintiffs-Appellants, City of Austin, Intervenor Plaintiff-Appellant, v. Thomas E. WHITE, Etc.; et al., Defendants, Thomas E. White, in his official capacity as Acting Secretary of the Department of the Army; Norman Y. Mineta, Secretary, Department of Transportation; Christine T. Whitman, Administrator, United States Environmental Protection Agency; United States of America, Defendants-Appellees, Longhorn Partners Pipeline LP, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

352 F.3d 235

Ethel SPILLER; et al., Plaintiffs Marian Collins; Barton Springs/Edwards Aquifer Conservation District; David Robertson, Plaintiffs-Appellants City of Austin, Intervenor Plaintiff-Appellant, v. Thomas E. WHITE, Etc.; et al., Defendants Thomas E. White, in his official capacity as Acting Secretary of the Department of the Army; Norman Y. Mineta, Secretary, Department of Transportation; Christine T. Whitman, Administrator, United States Environmental Protection Agency; United States of America, Defendants-Appellees Longhorn Partners Pipeline LP, Defendant-Appellee.

No. 02-50956.

United States Court of Appeals, Fifth Circuit.

Filed December 12, 2003.

Rehearing Denied January 12, 2004.

Renea Hicks (argued), Law Office of Max Renea Hicks, R. James George, Jr., Rachael Anne Rawlins, George & Donaldson, Ben J. Cunningham, Galton, Cunningham & Bourgeois, Austin, TX, for Plaintiffs-Appellants.

Connie W. Odé (argued), El Prado, NM, David Allan Smith, Sedora Jefferson, Austin, TX, for City of Austin.

Stephanie Tai (argued), Lori Caramanian, Gen. Lit. Section, U.S. Dept. of Justice, Environment & Natural Resources Div., Washington, DC, for White, Mineta, Whitman and U.S.

Barry F. Cannaday (argued), Martin P. Averill, Jenkens & Gilchrist, Dallas, TX, for Longhorn Partners Pipeline LP.

Appeal from the United States District Court for the Western District of Texas.

Before JOLLY, SMITH and EMILIO M. GARZA, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Before this court is the joint decision of two government agencies not to conduct a full-scale environmental impact study of the environmental effects of a proposal to use a pre-existing pipeline to transport gasoline and other petroleum products across the state of Texas. The government agencies did perform an initial environmental assessment but declined to engage in any further studies after concluding that the environmental impact of the proposed use of the pipeline would not be significant. The petitioners consist of a variety of Texas cities and governmental entities strongly opposed to the proposed use of this particular pipeline. They urged the district court — and they now urge this court — to order the government agencies to proceed with a full-fledged environmental impact study, contending that the agencies' finding of no significant environmental impact was arbitrary and capricious and contrary to law. The district court upheld the conclusion of the government agencies. We affirm.

I. Background

A. Statutory Background

This case arises under the network of the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. §§ 4321-4370d, "a statute drafted to ensure that federal agencies `carefully consider detailed information concerning significant environmental impacts,' and at the same time `guarantee that the relevant information will be made available to the larger audience that may also play a role in both the decision-making process and the implementation of that decision.'" Sabine River Authority v. U.S. Dept. of Interior, 951 F.2d 669, 676 (5th Cir.1993) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)). In essence, the NEPA framework requires federal agencies to prepare a detailed Environmental Impact Statement ("EIS") for all "major federal actions significantly [affecting] the quality of the human environment." 42 U.S.C. § 4332(C).

The threshold determination of whether the effect of the proposed action is sufficiently "significant" to necessitate the production of an EIS is made by the preparation of an Environmental Assessment ("EA"). Sabine River, 951 F.2d at 677. The EA is a "concise" document that "briefly" discusses the relevant issues and either reaches a conclusion that preparation of an EIS is necessary or concludes with a "Finding of No Significant Impact" ("FONSI"). Id. An EA is conducted to "provide sufficient evidence and analysis for determining whether to prepare an [EIS]." 40 C.F.R. § 1508.9(a)(1). "The EA is a rough-cut, low-budget environmental impact statement designed to show whether a full-fledged environmental impact statement — which is very costly and time-consuming to prepare and has been the kiss of death to many a federal project — is necessary." Sabine River, 951 F.2d at 677 (internal quotations and citations removed). Thus, the ultimate purpose of the EA is to lead to one of two findings: "either that the project requires the preparation of an EIS to detail its environmental impact, or that the project will have no significant impact ... necessitating no further study of the environmental consequences which would ordinarily be explored through an EIS." Id. If the former is found, then the agency must proceed with a full blown EIS; if the latter is found, the agency issues a FONSI and has no further obligations under NEPA. Id.

Notably, the NEPA statutory framework provides no substantive guarantees; it prescribes adherence to a particular process, not the production of a particular result. Robertson, 490 U.S. at 350, 109 S.Ct. 1835. NEPA "is a procedural statute that demands that the decision to go forward with a federal project which significantly affects the environment be an environmentally conscious one." Sabine River, 951 F.2d at 676. The statute "does not command the agency to favor an environmentally preferable course of action, only that it make its decision to proceed with the action after taking a `hard look at environmental consequences.'" Id. (quoting Robertson, 490 U.S. at 350, 109 S.Ct. 1835). Indeed, "NEPA does not prohibit the undertaking of federal projects patently destructive of the environment; it simply mandates that the agency gather, study, and disseminate information concerning the projects' environmental consequences." Id. Thus, while "[o]ther statutes may impose substantive environmental obligations on federal agencies, ... NEPA merely prohibits uninformed — rather than unwise — agency action." Id.

B. Factual and Procedural History

This case concerns a pipeline that runs across the state of Texas between Houston and El Paso. Along its way, the pipeline passes through the City of Austin and across several rivers, streams and wetlands. In addition, it lies atop several aquifers and aquifer recharge zones. Exxon Pipeline Company originally constructed the pipeline between 1949 and 1950 and used it to transport crude oil until 1995. In 1997, Exxon sold the pipeline to Longhorn Partners Pipeline, L.P. ("Longhorn"), a Delaware limited liability partnership headquartered in Dallas, Texas. Longhorn purchased the pipeline intending to use it to transport gasoline and other petroleum products from Gulf Coast refineries to El Paso and then, perhaps, on to other states. The pipeline will eventually move approximately 225,000 barrels of gasoline per day across its lines.

On April 22, 1998, Mariane Collins, the Barton Springs-Edwards Aquifer Conservation District, and David Robertson filed a challenge to the proposed pipeline under NEPA.¹ In their original complaint, the plaintiffs sought injunctive relief, claiming that NEPA obligated the federal government to perform a full-fledged review of the environmental impact of the proposed use of the Longhorn Pipeline. The suit was brought against Longhorn, the United States, the United States Department of Transportation ("DOT"), the Department of the Army, and the Environmental Protection Agency ("EPA"). Shortly thereafter, the City of Austin was allowed to intervene as the pipeline itself runs through the city.

After some initial negotiations, Longhorn and the government defendants entered into a settlement stipulation with the Collins plaintiffs and the City of Austin (collectively referred to hereafter as "the Collins plaintiffs"). Under this settlement, the EPA and the DOT (hereafter referred to as the "Lead Agencies") agreed to prepare an EA of the pipeline. The parties agreed that this EA would culminate in a FONSI or a notice of intent to prepare an EIS. Upon acceptance of the settlement stipulation, the district court issued an Agreed Order enjoining Longhorn from placing petroleum products in the pipeline until thirty days after the EA had been completed. The Agreed Order also specified that if the Lead Agencies issued a FONSI, the Collins plaintiffs could apply to the court to extend the injunction on the basis that the FONSI was arbitrary and capricious or otherwise in violation of the law under the Administrative Procedures Act ("APA"), 5 U.S.C. § 706.

In accordance with the settlement stipulation, the Lead Agencies prepared an EA. On October 28, 1999, the Lead Agencies issued the draft EA and a preliminary FONSI for public review and comment (in accordance with 40 C.F.R. § 1506.6). The preliminary FONSI was a so-called "mitigated FONSI" which means that its issuance was predicated on Longhorn's engaging or agreeing to engage in certain mitigation measures. These measures were designed to address the potentially significant environmental impacts of the pipeline and reduce the risks of them occurring to a level where they were deemed insignificant by the Lead Agencies. The Lead Agencies then held public hearings on the draft EA and the preliminary FONSI in Austin, Houston, Fredricksburg, Bastrop and El Paso and distributed hundreds of copies of the EA and FONSI in counties along the pipeline. Following these hearings, the submission of several thousand written comments on them, and after further deliberation, on November 3, 2000, the EPA and DOT issued a FONSI along with the final EA.

On February 5, 2001, the District Court granted the Collins plaintiffs leave to amend their initial complaints. In their amended complaint, the Collins plaintiffs contended that (1) the Lead Agencies' decision to issue a FONSI instead of preparing an EIS was contrary to NEPA and was arbitrary and capricious in violation of the APA, and (2) the Lead Agencies and Longhorn breached...