Stop the Pipeline v. White, No. C2-02-842.

• Decision Date: 22 November 2002
• Docket Number: No. C2-02-842.
• Citation: 233 F.Supp.2d 957
• Parties: STOP THE PIPELINE, et al., Plaintiffs, v. Thomas E. WHITE, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

233 F.Supp.2d 957

STOP THE PIPELINE, et al., Plaintiffs, v. Thomas E. WHITE, et al., Defendants.

No. C2-02-842.

United States District Court, S.D. Ohio, Eastern Division.

November 22, 2002.

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COPYRIGHT MATERIAL OMITTED

Richard Clyde Sahli, Columbus, OH, for plaintiffs.

James C. Wilson, U.S. Attorney's Office, Columbus, OH, for Thomas E. White, Robert B. Flowers, John D. Rivenburgh, defendants.

Stephen Douglas Jones, Roetzel & Andress, Columbus, OH, John D. Fognani, R. Kirk Mueller, Robin M. Hunziker, for Ohio River Pipe Line, LLC, defendant.

OPINION AND ORDER

SARGUS, District Judge.

This matter is before the Court on the Cross-Motions for Summary Judgment filed by Plaintiffs, Stop the Ohio Pipeline and Jane Ann Ellis ("Plaintiffs"); Defendants Thomas E. White, Secretary of the United States Department of the Army; Lieutenant General Robert B. Flowers, Commander and Chief of Engineers, United States Army Corps of Engineers; and Colonel John D. Rivenburgh, District Commander, United States Army Corps of Engineers ("Federal Defendants")¹; and Defendant Ohio River Pipe Line, L.L.C. ("ORPL"). For the reasons that follow, Plaintiffs' Motion for Summary Judgment is denied; Federal Defendants' Motion for Summary Judgment is granted; and ORPL's Motion for Summary Judgment is granted.

INTRODUCTION

As more fully addressed below, this Court is asked to review the decision of the Army Corps of Engineers to issue a permit to the Ohio River Pipe Line, L.L.C. concerning the installation of a fourteen inch petroleum products pipeline to extend 149 miles from Kenova, West Virginia to Columbus, Ohio.

The decision to grant or deny such permits is vested with the Army Corps of Engineers. While the Corps must comply with a number of federal environmental laws described in detail below, the ultimate discretion as to the sanctioning of the project rests with the agency.

The role of this Court is both important and limited. Congress has directed by statute that any aggrieved party may obtain relief in a federal district court if an agency, such as the Army Corps of Engineers, has failed to follow the required procedures and analysis which must precede the issuance of a permit authorizing the type of project at issue in this case. Federal law does not, however, authorize or permit a federal district court to exercise the authority of an agency, such as the Corps, as to the ultimate question of whether the pipeline should or should not be constructed.

Further, this case involves a claim by the Plaintiffs that the Corps, given the scope of the pipeline project, should have required a full environmental review, known as an Environmental Impact Statement, to precede the granting of the permit. Instead, the agency prepared only an Environmental Assessment, an abbreviated environmental review. Were this Court authorized to determine on its own whether an Environmental Impact Statement should be issued, the result would be different. Federal law, however, places discretion to make such decision with the Corps. As described below, this Court may reverse the Corps' decision only if it is arbitrary or capricious, one of the highest legal standards imposed on a plaintiff and one which simply has not been met in this case.

This Court would be remiss if it did not note that the quality of the pleadings, briefs, and oral arguments presented by the attorneys in this expedited case was of an exceptionally high quality.

I.

This case arises following the administrative decision of the United States Army Corps of Engineers ("Corps") to issue a water pollution permit authorizing the construction of a 149 mile long pressurized pipeline, fourteen (14) inches in diameter, to be used for transporting liquid petroleum products from Kenova, West Virginia to a storage facility in Columbus, Ohio. Plaintiffs challenge the lawfulness of the Corps' decision in issuing a dredge and fill permit (# 199800424-4, also referred to as "404 permit") to Defendant ORPL authorizing ORPL to fill 354 streams and 54 wetlands in the course of the pipeline's construction. (AR 16, p. 21-26.²) The pipeline will be built by ORPL and operated by Marathon Ashland Pipe Line, LLC.

As described in ORPL's application for the 404 permit, the pipeline was designed to transport over 3.3 million gallons of refined petroleum products from West Virginia to a storage terminal in Columbus, Ohio. (AR 16, p. 84.) According to the June 4, 2002 report of the Office of Pipeline Safety ("OPS"), a component agency of the United States Department of Transportation, the fuel in the pipeline will be under high pressure, up to 1,480 pounds per inch. (AR 16, p. 208.) Construction will require the complete clearing of a seventy-five (75) foot right-of-way along the majority of the 149 mile route, clearing 1,350 total acres, and a permanently cleared fifty (50) foot right-of-way. (E.A., AR 16, p. 88.) The pipeline will generally be buried to a minimum of 36 inches. (OPS report, AR 16, p. 209-10.) The pipeline's operations will be monitored from a control center in Findlay, Ohio, which will oversee the pressure levels within the pipeline. (AR 115, p. 210-211.)

As relevant to the Plaintiffs herein, the pipeline would traverse the public lands of Hocking Hills in southeastern Ohio, through several Ohio parks including the Hocking State Forest, Crane Hollow State Nature Preserve, and the Clear Creek Metro Park and State Nature Preserve. (AR 16, p. 89, 92.) The Hocking State Forest is a unique and popular tourism and recreation area of Ohio. (AR 16, p. 92.)

About 80 percent of the pipeline route lies within existing pipeline corridors, powerline rights-of-way, excess landfill property, surplus airport property, developed lands and surplus highway rights-of-way. (AR 16, p. 103.) In Hocking County, Ohio, where Plaintiffs' efforts have focused, oil and gas pipelines and high voltage power lines already exit on the area to be effected by the proposed pipeline. Seventeen (17) miles of the proposed pipeline route crosses portions of Hocking Hills State Forest. Most of the seventeen (17) miles of the proposed pipeline in this area will be installed within an existing utility corridor and will concurrently replace the existing 80-year old pipeline. (AR 16, p. 89.) An additional portion will run along an existing, dedicated roadway.

In the Hocking Hills State Forest, ORPL purchased the whole of an existing natural gas pipeline easement, called the "FR-25" line, which runs in Ohio from northern Jackson County through all of Vinton County and almost all of Hocking County. (AR 16, p. 92; AR 16, p. 218.) The FR-25 easement covers 37 miles of the 149-mile pipeline route.³ (AR 12, p. 7507.) Plaintiffs advocate that the use of this 37-mile route along the FR-25 easement has numerous shortcomings with regard to the Hocking Hills and the public lands there. FR-25 pipeline is old, having been installed in 1916. More recently, the right-of-way has been poorly maintained and much overgrowth has occurred. (AR 16, p. 92, AR 12, p. 7509.) Plaintiffs note that the FR-25 was sited many decades before the development of modern environmental science and regulatory policy, making it very unlikely that its original location was based on any sound environmental rationale. Plaintiffs further point out that FR-25 is capped and out of service in its northern reaches and has rusted through in numerous areas.

With regard to the important environmental and biological value represented by the public lands in the Hocking Hills, the existing FR-25 right-of-way contains areas that have "not been cleared for many years" and are "overgrown." (AR 16, p. 92.) Public commentators noted that the easement in some locations has mature trees that are 20 to 30 years old. (AR 2, p. 7507.) The entire FR-25 right-of-way through Crane Hollow State Nature Preserve is so overgrown that the tree canopy closes overhead so that no predator access is created. (AR 16, p. 139.) The forested nature of this segment is especially important due to the wildlife habitat it provides within the public lands. Both the Crane Hollow State Nature Preserve and Clear Creek Metro Park have been designated as "Important Bird Areas" because their expansive and unfragmented forest allow nesting for many high priority neotropical bird species.⁴ (AR 16, p. 131.) During public hearings on this matter,⁵ many commentators described the Hocking Hills unique habitat for neotropical birds and the significant impact that the clearing the pipeline would have on these birds. During the hearings, concern was expressed that clear cutting the 75 foot right-of-way along the FR-25 easement would cause forest fragmentation and would have a seriously negative impact on these neotropical birds that are dependent on closed forest canopies to survive by allowing a pathway for invasion by destructive, non-native predatory animal and plant species. (AR 16, pp. 131-132, 136; AR 12, pp. 7574-7580, 7496-7503, 7522-7530.)

Section 404 of the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq., ("FWPCA") requires any person or entity seeking to place dredge or fill materials into navigable waters to obtain a permit from the Corps. Because ORPL's proposed construction of the pipeline would involve the release of sediment into in or in the vicinity of various streams and wetlands that are by law navigable waters of the United States, the project requires a 404 permit. Further, the decision whether to issue or deny such permit triggers the application of the National Environmental Policy Act ("NEPA"). 42 U.S.C. § 4321 et seq.

Under the Clean Water Act, 33 U.S.C. § 1344 et seq., the Corps has authority to issue both individual and general permits. An individual permit is a project-specific authorization that is granted only after review of an application containing a complete description of the proposed activity and a period of public comment. 33 C.F.R. §§ 325.1(d), 3...