WildEarth Guardians v. Chao

• Citation: 392 F.Supp.3d 1192
• Decision Date: 23 May 2019
• Docket Number: CV-18-110-GF-BMM
• Parties: WILDEARTH GUARDIANS, Plaintiff, v. Elaine L. CHAO, et al., Defendants.
• Court: U.S. District Court — District of Montana

392 F.Supp.3d 1192

WILDEARTH GUARDIANS, Plaintiff,

v.Elaine L. CHAO, et al., Defendants.

CV-18-110-GF-BMM

United States District Court, D. Montana, Great Falls Division.

Signed May 23, 2019

Sarah K. McMillan, Wildearth Guardians, Missoula, MT, Rebecca Fischer, Pro Hac Vice, Wildearth Guardians, Denver, CO, Samantha M. Ruscavage-Barz, Pro Hac Vice, Wildearth Guardians, Santa Fe, NM, for Plaintiff.

Kristofor R. Swanson, U.S. Department of Justice-Environmental Enforcement, Washington, DC, for Defendants.

ORDER

Brian Morris, United States District Court Judge

Plaintiff Wildearth Guardians ("Wildearth") challenges the alleged failure of the Department of Transportation ("DOT") and the Pipeline Hazardous Material Safety Administration ("PHMSA") to comply with the Mineral Leasing Act's ("MLA") directive that all oil and gas pipelines on federal lands receive at least one inspection annually. (Doc. 1). Federal Defendants have moved to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. 18). Federal Defendants argue also that Wildearth lacks standing under Article III to bring its claim. (Doc. 19 at 21).

I. BACKGROUND

The MLA requires that "[p]eriodically, but at least once a year, the Secretary of the Department of Transportation shall cause the examination of all pipelines and associated facilities on Federal lands and shall cause the prompt reporting of any potential leaks or safety problems." 30 U.S.C. § 185(w)(3) (emphasis added). Congress later enacted the Pipeline Safety Act of 1979 ("PSA"). 49 U.S.C. § 60101, et seq . The PSA gives the Secretary of Transportation regulatory and enforcement authority to take actions to protect the public against risks to life and property posed by pipeline transportation and pipeline facilities. Congress specifically declined to remove from DOT the duty to cause the annual inspection of pipelines that cross federal lands when it amended the MLA, despite DOT's requests. (Doc. 23, at 2-3). The legislative history notes that "the committee struck out th[e] provision that would have removed what is now 185(w)(3)." (Doc. 23 at 3).

DOT subsequently delegated this non-discretionary duty to cause the examination of all pipelines on federal lands to PHMSA. See 49 C.F.R. § 1.97(a)(1). Wildearth asserts that PHMSA has failed to comply for at least six years with what the MLA requires – action causing the annual examination of all pipelines on federal lands. (Docs. 1 at ¶ 3; 23 at 17). The MLA expressly compels PHMSA, pursuant to DOT's delegation, to cause the inspection of all oil and gas pipelines on federal lands. 30 U.S.C. § 185(w)(3).

Wildearth alleges that PHMSA's existing inspection regulations allegedly do not appear to encompass all oil and gas pipelines that cross federal lands. See 49 U.S.C. § 60101(a)(21)-(22) ; 49 C.F.R. §§ 192.3, 195.2. For example, the annual inspection requirements do not seem to include non-regulated rural gas gathering lines, some rural regulated gas gathering lines, oil flow lines, and certain oil gathering and transmission lines outside of high consequence areas. 49 C.F.R. §§ 192.8, 192.9, 192.705, 192.706, 195.1(b), 195.11, 195.12. Wildearth asserts that PHMSA's failure to cause the inspection of these pipelines constitutes agency inaction. Wildearth brings this action pursuant to the APA's "failure to act" provision set forth at 5 U.S.C. § 706(1).

Federal Defendants dispute the notion that Wildearth's claim challenges PHMSA's inaction. Federal Defendants contend that Wildearth's complaint actually challenges PHMSA's current PSA regulations for being out-of-compliance with the MLA. Federal Defendants argue that the court of appeals possesses exclusive jurisdiction over Wildearth's suit. Congress provided that a person who seeks to challenge a regulation prescribed under the PSA, or an order issued under the PSA, "may apply for review of the regulation or order by filing a petition for review" in a court of appeals. 49 U.S.C. § 60119(a)(1) ; (Doc. 19 at 18-19). Federal Defendants further contend that the eighty-nine-day time limit for seeking a review of a PHMSA regulation or order bars Wildearth's complaint.

II. DISCUSSION

The Court will address first whether Wildearth has standing under Article III to bring its claim. The Court next will address whether Wildearth presents a valid "failure to act" claim pursuant to the APA. The Court finally will analyze Federal Defendants' argument that the Court lacks subject matter jurisdiction to hear Wildearth's claim.

A. Standing

The Court must assume at this stage that all allegations in Wildearth's complaint are true and draw reasonable inferences in its favor. Wolfe v. Strankman , 392 F.3d 358, 362 (9th Cir. 2004). An injury must be "concrete, particularized, and actual and imminent" in order to establish Article III standing. Martin v. City of Boise , 902 F.3d 1031, 1040 (9th Cir. 2018). The injury must be "fairly traceable to the challenged action" and be "redressable by a favorable ruling." Id. In this manner Article III limits the federal judicial power "to those disputes which confine federal courts to a role consistent with a system of separated powers and which are traditionally thought to be capable of resolution through the judicial process." Flast v. Cohen , 392 U.S. 83, 96, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968).

"For an injury to be particularized, it must affect the plaintiff in a personal and individual way." Spokeo, Inc. v. Robins , ––– U.S. ––––, ––––, 136 S. Ct. 1540, 1548, 194 L.Ed.2d 635 (2016). Environmental cases prove no different and thus require an injury to the plaintiff, not to the environment. Id. At the pleadings stage, however, "general factual allegations of injury resulting from the defendant's conduct may suffice." Lujan v. Defs. of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The Court may "presume that general allegations embrace those specific facts that are necessary to support the claim." Oregon v. Legal Servs. Corp. , 552 F.3d 965, 969 (9th Cir. 2009). Environmental plaintiffs "adequately allege injury in fact when they aver that they use the affected area and are persons for whom the aesthetic and recreational values of the area will be lessened by the challenged activity." Id.

Federal Defendants claim that Wildearth fails to allege a particularized injury that fairly can be traced to PHMSA. (Doc. 19 at 29-30). Federal Defendants characterize Wildearth's injury as simply aesthetic. Id. at 29. Federal Defendants assert that Wildearth must associate an alleged injury complaining of certain "sights, sounds, and smells" with particular leaking or rusted pipelines. Id. at 30-31. Federal Defendants argue that Wildearth must allege that at least one pipeline causing the particular "sights, sounds, and smells" must be a "flow, gathering, or transmission pipeline" and prove "PHMSA's regulations do not require annual examinations for that pipeline." Id. at 33.

Wildearth alleges that its members can see, hear, and smell leaking pipelines while recreating on public lands. (Doc. 1 at ¶ 17-21). These leaks and smells allegedly decrease Wildearth's members recreational enjoyment and cause them concerns related to potential health impacts as a result of exposure to leaking pipelines. Id. Wildearth alleges that its injury arises from PHMSA's failure to cause the inspection of all oil and gas pipelines as the MLA requires. Id. (citing 30 U.S.C. § 185(w)(3) ).

"For purposes of ruling on a motion to dismiss for want of standing," the Court "must accept as true all material allegations of the complaint, and must construe the complaint in favor of the [plaintiff]." Warth v. Seldin , 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The Court determines at this stage in the proceedings that the Wildearth alleges a sufficiently particularized injury. Wildearth alleges that its members "use the affected area" and the associated smells and sounds impact its members "in an individual way." Spokeo Inc. , 136 S. Ct. at 1548. The Court further presumes that the general allegations in Wildearth's complaint embraces those specific facts necessary to support Wildearth's complaint. Legal Servs. Corp. , 552 F.3d at 969.

Wildearth's alleged injury proves "fairly traceable to the challenged action." Martin , 902 F.3d at 1040. Wildearth alleges that its injury stems from PHMSA's failure to cause the annual inspection of all oil and gas pipelines as the MLA requires. 30 U.S.C. § 185(w)(3). Wildearth has provided specific examples of visits to five locations on public lands where members observed oil and gas pipelines that are subject to the MLA's inspection requirement. (Doc. 1 at ¶ 17). Wildearth alleges, in effect, that if PHMSA were to cause the annual inspection of all oil and gas pipelines under the purview of the MLA, the offensive sounds and smells would not exist.

The redressability of Wildearth's alleged injury remains an issue for this Court. Wildearth seeks what amounts to mandamus relief to comply with the MLA. See 28 U.S.C. § 1361. The Court's decision on redressability of Wildearth's alleged injury turns on whether it possesses subject matter jurisdiction to hear Wildearth's claim. The Court will address this issue below.

B. Whether Wildearth Properly Asserts a Failure to Act Claim Pursuant to the APA.

The Supreme Court in Norton v. Southern Utah Wilderness Alliance , 542 U.S. 55, 61, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) (" SUWA "), analyzed an alleged failure to act by a federal agency pursuant to § 706(1) of the APA. This provision allows a party to "compel agency action unlawfully withheld or unreasonable delayed." 5 U.S.C. § 706(1). The claims at issue asserted that the Bureau of Land Management ("BLM") had failed to take action with regard to off-road vehicle use in wilderness study areas. SUWA , 542 U.S. at 61, 124 S.Ct. 2373. The Supreme Court evaluated...