WildEarth Guardians v. Chao
| Citation | 454 F.Supp.3d 944 |
| Decision Date | 15 April 2020 |
| 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 |
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.
Brian Morris, Chief District Judge Plaintiff Wildearth Guardians challenges the alleged failure of the Department of Transportation and the Pipeline Hazardous Material Safety Administration (collectively "PHMSA" or "Federal Defendants") to comply with the directive in the Mineral Leasing Act to cause the inspection of all pipelines on federal lands at least once annually. (Doc. 1). The parties have filed cross motions for summary judgment. This Court conducted a hearing on the cross motions for summary judgment on March 4, 2020.
As the Court provided background in its earlier Order at the motion to dismiss stage, the Court addresses background facts here only briefly. (See Doc. 30). The Mineral Leasing Act ("MLA") contains a provision, added by Congress in 1973, requiring "[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) ; An Act to Amend Section 28 of the Mineral Leasing Act of 1920, Pub. L. 93-153, 87 Stat. 576, 576 (1973). The Secretary of Transportation has delegated the responsibility under § 185(w)(3) to PHMSA, an operating administration under the Department of Transportation. (Doc. 40-2 at 2); 49 C.F.R. § 1.97(a)(2).
Neither party disputes that PHMSA has failed to cause the examination of all pipelines on federal lands. (Doc. 40-2 at 4). It is also undisputed that PHMSA's regulations provide for the examination of certain pipelines on federal lands. See 49 C.F.R. pts. 191,192, 195. Wildearth equates Federal Defendants’ exclusion from inspection of certain types of pipelines with a "failure to act" pursuant to 5 U.S.C. § 706(1) of the Administrative Procedure Act ("APA"). The Court previously determined that it possessed jurisdiction to hear Wildearth's alleged failure to act claim under § 706(1). (Doc. 30 at 22-24). The Court will not revisit that question here.
A court should grant summary judgment where the movant demonstrates that no genuine dispute exists "as to any material fact" and the movant is "entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment remains appropriate for resolving a challenge to a federal agency's actions when review will be based primarily on the administrative record. Pit River Tribe v. U.S. Forest Serv. , 469 F.3d 768, 778 (9th Cir. 2006). The Administrative Procedure Act governs Wildearth's claims. See Hells Canyon Preservation Council v. U.S. Forest Serv. , 593 F.3d 923, 929 (9th Cir. 2010).
Wildearth's members must demonstrate three elements to establish standing: (1) that there has been an injury in fact; (2) that the injury is fairly traceable to the challenged action; and (3) that the injury likely would be redressed by a favorable decision. WildEarth Guardians v. U.S. Dep't of Agric. , 795 F.3d 1148, 1154 (9th Cir. 2015). Defendants argue that Wildearth has failed to demonstrate standing because they fail to allege facts that demonstrate causation. Specifically, Federal Defendants argue that Wildearth has failed to provide facts to support a conclusion that the injuries of which it complains arise from PHMSA's alleged failure to cause annual inspections of pipelines, "rather than from some other operator action or decision." (Doc. 44 at 33). Wildearth contends that the injury is "fairly traceable" to Federal Defendants and that Wildearth is not required to demonstrate that Federal Defendants’ action represents "the very last step in the chain of causation." (Doc. 47 at 12 quoting Bennett v. Spear , 520 U.S. 154, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) ).
The Court agrees with Wildearth. Wildearth's members have submitted affidavits demonstrating that they live, work, and recreate on and near federal public lands traversed by surface and subsurface oil and gas pipelines. (See Doc. 40-3, Eisenfeld Decl.; 40-4, Nichols Decl.; 40-5, Molvar Decl.). The fact that pipeline operators’ actions or decisions may constitute a step in the causation chain does not mean the injury is not "fairly traceable" to PHMSA. Although an injury resulting from independent action of a third party not before the Court may preclude standing, here, the alleged injury is "produced by determinative or coercive effect upon the action of someone else." Bennett , 520 U.S. at 169, 117 S.Ct. 1154. Federal Defendants have provided no evidence to demonstrate that pipeline operators either are complying, or are failing to comply, with regulations. Federal Defendants’ argument that the action of pipeline operators precludes the alleged injury from being "fairly traceable" to PHMSA proves unavailing.
Congress enacted the Pipeline Safety Act ("PSA") and the MLA for different purposes. These statutes impose different statutory duties on different federal agencies. Congress enacted the PSA in 1979. Pub. L. 96-129, 93 Stat. 989 (1979). The PSA gives the Secretary of Transportation regulatory and enforcement authority to take actions on pipelines. 49 U.S.C. § 60102. The PSA ensures "adequate protection against risks to life and property posed by pipeline transportation and pipeline facilities." Id. at § 60102(a)(1).
The PSA applies to all pipelines across the nation, including those that cross private, state, and federal land. Id. Congress excluded certain pipelines from regulation under the PSA. See 49 U.S.C. § 60101(a)(21)(B), (a)(22)(B). These exclusions from regulation encompass flow lines and most rural gathering lines. Id. PHMSA implements safety regulations for natural gas and hazardous liquid pipelines through regulations contained in Parts 191, 192, and 195 of the Code of Federal Regulations. See 49 C.F.R. pts. 191,192, 195.
The MLA authorizes and governs leasing of public lands for development of a variety of natural resources. 30 U.S.C. § 181, et seq. Some provisions of the MLA specifically address pipelines that cross public lands. Id. at § 185. These provisions contain no qualifying language or exceptions for any types of pipelines or gathering lines. Section 185(w)(3) instead directs 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." Id. at § 185(w)(3).
PHMSA's regulations provide for the inspections of certain pipelines. For example, the regulations require "leakage surveys" on all gas transmission lines at least once a year. 49 C.F.R. § 192.706. Regulations also require surface conditions inspections for all gas transmission lines at least once a year, but for some lines at least four times a year. Id. § 192.705. Operators of pipelines that transport hazardous liquids, except for rural gathering lines, "shall, at intervals not exceeding 3 weeks, but at least 26 times each calendar year, inspect the surface conditions on or adjacent to each pipeline right-of-way." Id. § 195.412(a). These regulations indisputably cause inspections of certain pipelines. PHMSA considered extending the requirements to all gathering lines. PHMSA ultimately rejected that requirement, however, choosing instead to extend inspection requirements to all but rural gathering lines. (Doc. 39-2, AR 1599-600 (gas); AR 2700 (hazardous liquid)).
In rules published October 1, 2019, PHMSA revised the "Authority" section of its regulations to include a citation to the specific section— § 185(w)(3) —of the MLA. As explanation, the agency stated "PHMSA has traditionally complied with § 185(w)(3) through the issuance of its pipeline safety regulations, which require annual examinations and prompt reporting for all or most of the pipelines they cover." Pipeline Safety: Safety of Hazardous Liquid Pipelines, 84 Fed. Reg. 52,260, 52,289 –90 (Oct. 1, 2019). Further, the rule provides that "PHMSA is making this change to be consistent with and make clear its long-standing position that the agency complies with the MLA through the issuance of pipeline safety regulations." Id.
PHMSA also points to testimony to Congress given by the Secretary of Transportation in 1979 to support its claim that it has implemented regulations to carry out congressional intent regarding pipeline inspections. The Secretary explained that § 185(w)(3) "is already carried out or provided for under the mandates of other Federal law and regulation." 125 Cong. Rec. 2405 (1979); (Doc. 44-1). The Secretary cited to the pipeline safety regulations contained in 49 C.F.R. Parts 191, 192, and 195. Id. PHMSA has repeated this position to Congress in the years since. Annual Report on Pipeline Safety, 34 (U.S. Dep't of Transp. 1990) (Doc. 44-4); Annual Report on Pipeline Safety, 43 (U.S. Dep't of Transp. 1989) (Doc. 44-5); see also Transportation of Natural and Other Gas by Pipeline: Annual Reports and Incident Reports, 49 Fed. Reg. 18,956, 18,959 (May 3, 1984) ()
PHMSA implies that Congress has acquiesced to this regulatory scheme through its failure to take any further action regarding inspection requirements contained in the MLA. It should be noted,...
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