Sierra Club v. United States Army Corps of Engineers

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
SIERRA CLUB, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 13-cv-1239 (KBJ)
)
UNITED STATES ARMY )
CORPS OF ENGINEERS, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
The Sierra Club and the National Wildlife Federation (“Plaintiffs”) have brought
this action for a declaratory judgment against several federal agencies and their
executive officers in their official capacity (the “Federal Agencies”) regarding
construction of the Flanagan South Pipeline, a domestic oil pipeline running from
Illinois to Oklahoma (the “FS Pipeline”). 1 Plaintiffs allege that the Federal Agencies
have failed to assess adequately the environmental impacts of this privately-owned
pipeline, in violation of the National Environmental Protection Act (“NEPA”), the
Clean Water Act (“CWA”), and the Administrative Procedure Act (“APA”). In
addition, Plaintiffs have now filed a motion for a preliminary injunction that asks the
Court to enjoin the actions of the Federal Agencies in relation to the FS Pipeline, and to
1
The specific defendants are: the United States Army Corps of Engineers and its officers Lt. Gen.
Thomas P. Bostick, Col. Richard A. Pratt, Col. Mark Deschenes, Col. Andrew D. Sexton, and Col.
Christopher Hall; the United States Department of Transportation Pipeline and Hazardous Materials
Safety Administration and its officers Anthony Foxx and Cynthia L. Quartermain; the United States
Fish and Wildlife Service and its officer Daniel M. Ashe; the United States Department of Interior
Bureau of Indian Affairs and its officers Sally Jewell and Kevin K. Washburn; and the United States
Environmental Protection Agency and its officer Gina McCarthy. In addition, the pipeline’s owner,
Enbridge Pipelines (FSP) LLC, has been granted intervenor status on the defendants’ side pursuant to
Federal Rule of Civil Procedure 24. (See Minute Order of Sept. 5, 2013.)
1
enjoin construction and operation of the entire pipeline (which is in the process of being
constructed mostly on privately-owned land) pending a final ruling on the merits of the
case.
This Court has considered the parties’ briefs on the motion for a preliminary
injunction, the arguments made at the preliminary injunction hearing, the portions of
the record that the parties have submitted in support of and in opposition to the motion,
and the complex web of statutes and regulations that Plaintiffs’ allegations implicate.
Although Plaintiffs have drafted a complaint that attacks the pipeline-related actions of
the several government agencies separately, Plaintiffs’ central contention in this case is
that the Federal Agencies had a collective statutory obligation to perform an in-depth
environmental review of the entire FS Pipeline before any construction on the pipeline
could commence. At least on the current record, however, Plaintiffs have significantly
overstated the breadth of federal involvement in the pipeline project and have failed to
establish sufficiently that applicable federal statutes and regulations would require the
extensive environmental review process that Plaintiffs seek. Moreover, Plaintiffs have
fallen short of demonstrating that irreparable harm will result if the current construction
proceeds during the pendency of this litigation, and the Court is not convinced that the
balance of harms and public interest factors weigh in Plaintiffs’ favor.
Consequently, as explained further below, the Court concludes that Plaintiffs’
motion for a preliminary injunction must be DENIED.
2
I. BACKGROUND
A. The Flanagan South Pipeline
The FS Pipeline is a proposed 589-mile domestic oil pipeline that, once
constructed, will transport tar sands crude oil from Pontiac, Illinois, through the states
of Missouri and Kansas, and ultimately into Cushing, Oklahoma. Enbridge Pipelines
(FSP) LLC (“Enbridge”), one of the leading energy transportation companies in North
America, owns the planned pipeline. Enbridge began construction of the pipeline on
August 14, 2013, and expects to complete the pipeline in the summer of 2014.
At least 560 miles of the 589 miles of pipe that will comprise the FS Pipeline
will traverse land that is entirely privately owned. According to Enbridge, the company
has identified 2,368 tracts owned by 1,720 separate landowners along the course of the
pipeline and has secured 96% of the land rights along the entire route. Thus, with
respect to the vast majority of the pipeline, no federal permission or authorization is
required for construction. However, it is undisputed that the FS Pipeline will at times
cross federal lands and waterways at various points along its planned route through the
heart of the country. Three types of federal crossings will occur and are at issue in this
litigation: (1) 13.68 total miles of “waters of the United States” (as defined in the CWA
and its implementing regulations) that are primarily located on private land but are
subject to the jurisdiction of the Army Corps of Engineers (the “Corps”) under the
CWA 2; (2) 12.3 miles of Native American land that is subject to the jurisdiction of the
Bureau of Indian Affairs (“BIA”); and (3) 1.3 miles of land that the federal government
2
The statutory definition of “waters of the United States” includes, in addition to interstate waters and
wetlands, “[a]ll other waters such as intrastate lakes, rivers, streams (including intermittent streams),
mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds,
the use, degradation or destruction of which could affect interstate or foreign commerce.” 33 C.F.R. §
328.3 (2013).
3
owns and that is also under the Corps’s jurisdiction. To construct and operate the
portion of the pipeline that traverses these 27.28 total miles, Enbridge must have federal
approval, and a separate statutory and regulatory scheme, discussed below, governs
each type of land or water crossing.
B. Alleged Federal Involvement With The Flanagan South Pipeline
Because Congress has not authorized the federal government to oversee
construction of a domestic oil pipeline, Plaintiffs’ complaint relies on a series of federal
environmental laws and regulations that require federal agencies with some
involvement in domestic pipeline construction to follow certain procedures. The
applicable statutes and regulations are set forth in Part C below. The following
description of Plaintiffs’ allegations regarding federal involvement with the FS Pipeline
provides the necessary context.
1. The Corps’s “Verifications” Under the Clean Water Act and Nationwide
Permit 12
When constructed, the FS Pipeline will cross approximately 1,950 wetlands or
waters under the jurisdiction of the Corps—an area that, as noted above, totals 13.68
miles. To undertake the portions of the FS Pipeline construction project that may
impact these waterways, Enbridge is required by law to seek federal approval, as
mentioned above and explained further below. In August and September of 2012,
Enbridge filed a formal notice under the CWA’s general permitting system requesting
Corps district engineers from each of the four Corps districts through which the
proposed FS Pipeline runs to verify that construction of the FS Pipeline project is
4
consistent with a pre-existing general permit that the Corps had previously issued. 3
Enbridge’s notice included specific plans for mitigating any potential adverse impacts
from the FS Pipeline construction project, as the general permitting system requires.
One year later, in August and September 2013, each of the four Corps districts issued a
verification letter to Enbridge, confirming that the FS Pipeline’s water crossings were
consistent with an applicable general permit, provided Enbridge undertook the
mitigation plans outlined in its notice.
2. The Corps’s Consideration Of Easements For Construction On Federal
Lands
In addition to the wetlands under the Corps’s jurisdiction, the FS Pipeline passes
through approximately 1.3 miles of other federal land under the jurisdiction of the
Corps, consisting of 0.7 miles of land at the Mississippi River near Quincy, Illinois, and
0.6 miles of land at the Arkansas River near Tulsa, Oklahoma. Congress has
empowered federal agencies to grant rights-of-way across lands “for pipeline purposes
for the transportation of oil, natural gas, synthetic liquid or gaseous fuels[,]” 30 U.S.C.
§ 185(a) (2012), and the governing statute expressly places numerous responsibilities
on an agency considering whether to permit construction on federal land, including
safety requirements, notice requirements, and reporting requirements (including
reporting to specific Congressional committees), id. § 185(g), (k), (w). An agency must
3
As Part I.C.2, infra, explains, the CWA offers two routes for getting federal approval to affect the
nation’s waterways with construction activities: either an individualized permitting process, or a
mechanism for having one’s project verified as consistent with pre-existing general permits that apply
to a given geographical area (including nationwide). 33 U.S.C. § 1344(a), (e) (2012). Enbridge chose
the latter. Enbridge requested that the district engineers verify that the construction activities related to
the FS Pipeline were consistent with Nationwide Permit 12, a general permit that the Corps reissued in
2012 and that authorizes “[a]ctivities required for the construction, maintenance, repair, or removal of
utility lines and associated facilities in the waters of the United States, provided the activity does not
result in a loss of more than ½-acre of water for each single and complete project.” Reissuance of
Nationwide Permits, 77 Fed. Reg. 10,184, 10,271 (February 21, 2012).
5
also comply with applicable environmental statutes and regulations, such as the
National Environmental Protection Act, discussed below. Id. § 185(h).
In April and May of 2013, Enbridge applied to the relevant Corps districts for
easements to construct the 1.3 mile segment of the FS Pipeline that runs over federal
land. Enbridge submitted its applications using a standard form for the construction of
transportation and utilities systems on federal lands—an application process that the
Corps subjects to the same review procedures as any third-party request for the use of
Corps lands. As of the writing of this Opinion, the Corps had informed the relevant
Congressional committees (the House and Senate Committees on Natural Resources)
about Enbridge’s easement applications, and had begun an environmental assessment of
the project, but had not yet reached a decision about whether or not to grant Enbridge’s
applications.
3. The BIA’s Consideration Of Easements For Construction On Indian Land
That The Federal Government Holds In Trust
Under 25 U.S.C. § 323, the BIA “is empowered to grant rights-of-way for all
purposes, subject to such conditions as [the Secretary of the Interior] may prescribe,
over and across any lands now or hereafter held in trust by the United States for
individual Indians or Indian tribes.” The BIA has promulgated regulations governing
the granting of easements over Indian land. See generally 25 C.F.R. Part 169 (2013).
These regulations include specific guidelines for, among other things, applications,
surveying, and providing consideration to landowners. Id. The regulations also include
specific provisions pertaining to easements for oil or gas pipelines. See id. § 196.25.
The proposed FS Pipeline crosses over 34 parcels of privately-owned Indian land
subject to the BIA’s jurisdiction, comprising a total of 12.3 miles. As of the writing of
6
this Opinion, Enbridge had applied to the BIA for easements over these parcels, and the
BIA was in the process of conducting an environmental assessment of the impact of the
pipeline on those areas. The BIA had not yet determined whether to grant or deny
Enbridge’s requested easements.
4. The Fish and Wildlife Service’s Biological Opinion And Incidental Take
Statement
As a part of the process for evaluating Enbridge’s request for easements to
construct portions of the FS Pipeline on the federal lands as described above, the Corps
and the BIA consulted the Fish and Wildlife Service (“FWS”) about the potential
impact of the FS Pipeline on animal life in the area. Under the Endangered Species Act
(“ESA”), 16 U.S.C. §§ 1531-1544 (2012), all federal agencies must consult with the
FWS to ensure that “any action authorized, funded, or carried out by such agency” is
unlikely “to jeopardize the continued existence of any endangered species or threatened
species or result in the destruction or adverse modification of habitat of such species[.]”
16 U.S.C. § 1536(a)(2). The agency or agencies must engage in formal consultations
with the FWS, and the ESA’s implementing regulations contain detailed guidelines that
govern these consultations. See, e.g., 50 C.F.R. § 402.14(c) (2013). Moreover, at the
conclusion of the required consultation, the FWS must issue a written opinion
“detailing how the agency action affects [any endangered] species or its critical habitat”
and if any issues are identified, “suggesting . . . reasonable and prudent alternatives”
that the FWS believes would not run afoul of the ESA’s mandate to protect such
species. 16 U.S.C. § 1536(b)(3)(A). If the FWS believes that the agency action might
result in the “taking” (i.e., killing) of some members of an endangered species, but is
not likely to jeopardize that species’ existence or adversely affect its environment in
7
violation of section 1536(a)(2), the FWS will issue an “incidental take statement” that
sets out measures that the FWS considers “necessary or appropriate to minimize [the]
impact” of the agency action on any endangered species. 16 U.S.C. § 1536(b)(4).
Pursuant to this statutory and regulatory scheme, in May and June of 2013, both
the Corps and the BIA requested that the FWS evaluate the impact of the construction
of the FS Pipeline on certain endangered or threatened species. (FWS Biological
Opinion on Enbridge Pipelines (FSP) LLC’s Flanagan South Pipeline Project
(“Biological Opinion”), ECF No. 14-8, at i.) The Corps specifically requested the
FWS’s opinion regarding the effects of the pipeline on both the decurrent false aster
plant and the Indiana bat, while the BIA’s consultation request included both of those
species and also the American burying beetle. (Id.)
The FWS issued its Biological Opinion on July 24, 2013. With respect to the
decurrent false aster, the FWS found that the effects from the FS Pipeline would be
“small[, and] temporary, and recovery will be rapid.” (Id.) For the American burying
beetle, the Biological Opinion concluded that the pipeline construction might modify
approximately 200 acres of species habitat, and that some beetles may be disturbed or
killed, but that “most of the effects [of construction on the beetle] are expected to be
infrequent, of short duration, and reversible.” (Id. at i-ii.) Finally, regarding the
Indiana bat, the FWS predicted that the construction would “potentially” kill 19 non-
reproductive bats and “harm or harass” no more than 120 other bats, but that “these
impacts are not likely to cause maternity colony impacts” and therefore “it is unlikely
that the anticipated effects [of the pipeline] will affect the likelihood of achieving the
recovery needs of the species[.]” (Id. at ii.) Additionally, because the FWS found that
8
it was possible that the pipeline construction would result in the death of some
endangered beetles and/or bats, it issued an incidental take statement that exempted the
Corps, the BIA, and Enbridge from the prohibitions against “taking” endangered species
found in the ESA, provided that any such taking was done in compliance with the terms
of the incidental take statement. (Id.)
5. The Pipeline and Hazardous Materials Safety Administration’s Failure To
Act On The Not-Yet-Filed Oil Spill Response Plan
Finally, as discussed further below, Plaintiffs rest one claim in the complaint on
the inaction of a federal agency regarding an assessment of the risks involved with
transporting oil through the FS Pipeline. The Oil Pollution Act of 1990, 33 U.S.C.
§§ 2701-2762, mandates that operators of oil facilities (which include pipelines)
“prepare and submit to the President a plan for responding, to the maximum extent
practicable, to a worst case discharge, and to a substantial threat of such a discharge, of
oil or a hazardous substance.” 33 U.S.C. § 1321(j)(5) (2012). The Pipeline and
Hazardous Materials Safety Administration (“PHMSA”), a division of Department of
Transportation, has authority to promulgate regulations governing these response plans.
See Exec. Order No. 12,777 § (2)(d)(2), 56 Fed. Reg. 54,757 (Oct. 22, 1991). PHMSA
regulations permit pipeline operators to submit spill response plans based on “response
zones,” such that more than one pipeline may be covered by a single plan if they are in
the same geographic region. 49 C.F.R. §§ 194.5, 194.107 (2013). Moreover, the
required response plan must be submitted before an operator can “handle, store, or
transport oil in that pipeline,” but the operator does not need to submit a plan prior to
the pipeline’s construction. Id. § 194.7(a). In addition, so long as the operator has
submitted a plan to the PHMSA and has certified that there is adequate personnel and
9
equipment to deal with an oil spill, a pipeline may be in operation for up to two years
without PHMSA approval of a plan. Id. §§ 194.7(c), 194.119(e).
As the owner and future operator of the proposed FS Pipeline, Enbridge is
required to submit a response plan to the PHMSA before the pipeline begins operating.
The FS Pipeline is still under construction, however. At the time of the writing of this
Opinion, Enbridge had not yet submitted any oil spill response plan for PHMSA review.
C. Plaintiffs’ Interests And Specific Claims
Plaintiffs are the Sierra Club, one of the oldest and largest environmental
organizations in the country, which currently has approximately 600,000 members and
traces its roots back to 1892; and the National Wildlife Federation, the nation’s largest
conservation advocacy and education organization. (First Amended Complaint
(“Compl.”), ECF No. 7, ¶¶ 12, 16.) Some of the Sierra Club’s members live in each of
the regions through which the FS Pipeline is planned to run. (Id. ¶ 13.) Plaintiffs
allege that the construction and operation of the FS Pipeline without proper
environmental review will injure them, both because they rely on such environmental
reviews for information used in planning their activities and disseminating information
to their members, and because they and their members have aesthetic, scientific,
recreational, business, and property interests in the areas where pipeline construction
and operation will occur. (Id. ¶¶ 17-18.)
Based on the complaint and the statements made during the preliminary
injunction hearing, Plaintiffs’ primary concern appears to be that the proposed FS
Pipeline will damage the environment and that the federal government has not
adequately assessed the environmental impact of this pipeline proposal. However, as
10
noted above, there is no federal statute that requires or permits federal oversight of an
entirely domestic oil pipeline such as the one at issue here. Consequently, Plaintiffs
have brought this action in federal court in reliance on various federal laws that, when
applicable, require agencies and individuals to comply with certain standards prior to
undertaking construction projects that may impact the environment.
Plaintiffs have organized the allegations in their complaint into six separate
claims, five of which arise under National Environmental Protection Act, the Clean
Water Act, and the Administrative Procedure Act. (See generally Compl. ¶¶ 143-93.) 4
As promised, the statutory schemes that these claims implicate are discussed in more
detail below.
1. The National Environmental Protection Act (“NEPA”)
The bulk of Plaintiffs’ complaint arises under NEPA, 42 U.S.C. §§ 4321-4347(2012). (See Compl. ¶¶ 155-89 (Counts II – V).) As a general matter, Congress
enacted NEPA as a call to the federal government to consider the environmental
consequences of its actions, see 42 U.S.C. § 4331(b)(1), and the regulations
implementing NEPA describe it as the country’s “basic national charter” for
environmental protection. 40 C.F.R. § 1500.1 (2013).
NEPA is, in essence, a “procedural statute” designed to ensure that federal
agencies make fully-informed and well-considered decisions. New York v. Nuclear
4
One of Plaintiffs’ six claims (Count I) invokes the Freedom of Information Act (“FOIA”) and alleges
that the Corps violated FOIA by denying certain document requests and missing the deadlines to
produce responsive documents. (Compl. ¶¶ 143-54.) This claim has a distinct procedural history: on
September 30, 2013, the Court stayed the FOIA portion of the complaint and effectively severed it from
the remaining claims at issue in the preliminary injunction motion, based on the Federal Agencies’
representations that they were in the process of producing documents responsive to Plaintiffs’ FOIA
requests. (See Minute Order of Sept. 30, 2013; Defs.’ Response to Order to Show Cause, ECF No. 30,
at 4.)
11
Regulatory Comm’n, 681 F.3d 471, 476 (D.C. Cir. 2012) (quoting Vermont Yankee
Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558 (1978) (internal quotation marks
omitted)). To this end, before a federal agency undertakes a “major federal action[]
significantly affecting the quality of the human environment,” 42 U.S.C. § 4332(2)(C),
NEPA requires the agency to evaluate the environmental consequences of that proposed
action. The required evaluation involves preparing a detailed environmental impact
statement (“EIS”) that describes the impact of the proposed action on the environment
and any alternatives to the proposed action, which the agency must publish for public
review and comment. Id. 5
To determine whether a particular agency action qualifies as a “major federal
action significantly affecting the quality of the human environment” such that an EIS is
required, an agency may opt to prepare a less-detailed environmental assessment
(“EA”), which is a “concise public document” that briefly provides evidence and
analysis to assist an agency in deciding whether the action in question requires an EIS.
40 C.F.R. § 1501.4(a)-(c); id. § 1508.9 (defining an EA). Based on the information
contained in the EA, the agency may proceed to prepare an EIS; alternatively, the
5
An agency’s preparation of an EIS is an extensive undertaking that is generally prepared in two
stages, both a draft and a final stage, and the agency is required to invite comments on the draft
statement before preparation of the final EIS. See 40 C.F.R. § 1502.9 (2013); 40 C.F.R. Part 1503
(2013). When preparing an EIS, the agency is required to, among other things, consult with other
federal agencies that may have special expertise with respect to the environmental effects of the
project, 42 U.S.C. § 4332(2)(C) (2012), and the EIS must not only detail the unavoidable adverse
environmental consequences of the proposed project and alternatives to the project, but also address the
extent to which the project’s adverse effects can be avoided through possible mitigation measures. Id.§ 4332(2)(C)(i)-(iii); see also 40 C.F.R. §§ 1502.14 (2013) (describing as the “heart” of the EIS the
section comparing description of the proposed action to reasonable alternatives), 1502.15 (requiring the
EIS to include a section describing the affected environment), 1502.16 (requiring a section that
discusses the environmental consequences, which forms the “scientific and analytic basis” for the
comparison of the proposed action to reasonable alternatives), 1508.25 (describing the scope of an
EIS).
12
agency may conclude that its action will not have a significant effect on the human
environment such that an EIS is not warranted. 40 C.F.R. § 1501.4(e). 6
NEPA is relevant to this case because most of Plaintiffs’ claims allege that, in
myriad respects, the Federal Agencies have failed to abide by their NEPA review
obligations with respect to the FS Pipeline. These claims generally fall into two
categories: first, that the individual actions of certain Federal Agencies regarding the
FS Pipeline were “major federal actions” requiring those agencies to prepare an EIS or
at least undertake an EA under NEPA (Compl. ¶¶ 155-79 (Counts II-IV)); and second,
that the combined actions of all the Federal Agencies gave rise to an unfulfilled NEPA
obligation to conduct a detailed environmental analysis of the entire 589-mile pipeline
as a whole (Compl. ¶¶ 180-89 (Count V)).
2. The Clean Water Act And Nationwide Permit 12
Plaintiffs maintain that the Corps’ actions in regard to the proposed FS Pipeline
water crossings violate the CWA, 33 U.S.C. §§ 1251-1387 (2013), both because the
Corps was required to conduct a NEPA review prior to providing the requested CWA
verifications (Count II), and because the Corps erred in concluding that the construction
project at issue here satisfied the requirements of the pre-existing general permit known
as Nationwide Permit 12 (“NWP 12”) (Count VI). (See Compl. ¶¶ 155-64; 190-93.)
Plaintiffs’ claims in this regard relate generally to the stated purpose of the CWA—to
“restore and maintain the chemical, physical, and biological integrity of the Nation’s
6
If the agency concludes that no EIS is warranted after preparing an EA, the agency will make a
finding of no significant impact (“FONSI”), which is reflected in a document that details the agency’s
conclusion that its action will not have a significant effect on the human environment. See 40 C.F.R.
§§ 1501.4(e), 1508.13 (2013).
13
waters,” 33 U.S.C. § 1251—a goal that Congress has generally sought to accomplish by
prohibiting the discharge of any pollutant, including dredged or fill material, into the
“waters of the United States.” See 33 U.S.C. §§ 1311, 1362(6), (7), (12). Section 404
of the CWA allows for limited exceptions to this general prohibition against discharges,
however; in this regard, the statute specifically authorizes the Secretary of the Army
(acting through the Corps) to issue permits “for the discharge of dredged or fill material
into the navigable waters at specified disposal sites.” 33 U.S.C. § 1344(a). 7
Significantly for present purposes, two alternative types of discharge permits are
available under Section 404: (1) individual permits that the Corps provides with
respect to a particular project, and (2) general permits that are issued for a given
activity within a certain geographical area, i.e., a state, a region, or (as relevant here)
nationwide. 33 U.S.C. §§ 1344(a), (e). Individual permits are subject to detailed
application and processing instructions, and before the Corps can issue an individual
permit, it must conduct a case-specific review of each application, including
preparation of an EA or EIS pursuant to NEPA. See generally 33 C.F.R. Parts 323, 325
(2013) (setting forth the application and review guidelines for individual permits).
General permits, on the other hand, are designed to streamline the permitting process
for certain, pre-approved “categor[ies] of activities,” namely, those activities that the
Corps determines are “similar in nature,” “will cause only minimal adverse
environmental effects when performed separately,” and “will have only minimal
cumulative adverse effect on the environment.” 33 U.S.C. § 1344(e)(1); see generally
33 C.F.R. Part 330 (2013) (setting forth the purposes of and procedures relating to the
7
“Navigable waters” means “the waters of the United States,” which includes certain types of wetlands
such as those over which the FS Pipeline intermittently traverses. See 33 U.S.C. § 1362(7); see also
footnote 2, supra.
14
general permit program). A general permit is valid for five years, and can be reissued
for subsequent five-year periods. See 33 U.S.C. § 1344(e)(2). Moreover, once the
Corps has issued or reissued a general permit, regional Corps officials known as
“division engineers” retain “discretionary authority to modify, suspend, or revoke
[general permit] authorizations for any specific geographic area, class of activities, or
class of waters within” a given geographical location. 33 C.F.R. § 330.5(c)(1).
Notably, general permits—including the nationwide permit at issue here—
undergo a stringent pre-approval evaluation process that involves a comprehensive
environmental assessment under NEPA and also public notice and comment.
Consequently, once a general permit is issued or reissued, the requisite environmental
analysis for any conforming project is considered to have been completed, and persons
who seek to engage in activities that the general permit covers may ordinarily “proceed
with activities authorized by [general permits] without notifying the [Corps].” Id. §
330.1(e)(1). In some cases, however, a prospective permittee must seek specific
verification that the relevant general permit covers the activity, id. § 330.1(d), which is
accomplished when a prospective permittee files a “pre-construction notice” (“PCN”)
with the relevant Corps district engineer. After reviewing a PCN, the district engineer
may choose to verify that the general permit is applicable by sending the permitee a
verification letter immediately, or the district engineer “may add activity-specific
conditions to ensure that the activity complies with the terms and conditions of the
[general permit] and that the adverse impacts . . . are individually and cumulatively
minimal.” Id. § 330.1(e)(2). Alternatively, in response to a PCN, the district engineer
may determine that the adverse effects of the activity are more than minimal and, as a
15
result, either notify the prospective permittee that an individual permit is required, or
permit the permittee to propose “measures . . . to reduce the adverse impacts to
minimal.” Id. § 330.1(e)(3). 8
This case concerns Nationwide Permit 12, a nationwide permit that the Corps
reissued in 2012. NWP 12 specifically authorizes discharges into federal waterways as
required for
the construction, maintenance, repair, and removal of utility
lines and associated facilities in waters of the United States,
provided the activity does not result in the loss of greater
than 1/2-acre of waters of the United States for each single
and complete project.
Reissuance of Nationwide Permits, 77 Fed. Reg. 10,184, 10,271 (Feb. 21, 2012). The
definition of a “utility line” in NWP 12 includes “any pipe or pipeline for the
transportation of any gaseous, liquid, liquescent, or slurry substance, for any
purpose[.]” Id. Moreover, for “linear” projects, such as the FS Pipeline, 9 each crossing
of a water body at a separate and distant location is considered a “single and complete
project” for the purpose of NWP 12. 77 Fed. Reg. at 10,290.
Prior to the reissuance of NWP 12 in 2012, the Corps followed the extensive
evaluation process that the regulatory scheme requires for issuance of a general permit,
8
If a permittee proposes additional measures to mitigate the environmental impact of the proposed
activity involving discharge, the district engineer must review the proposed mitigation strategy and
“shall add activity-specific conditions to ensure that the mitigation will be accomplished.” 33 C.F.R.
§ 330.1(e)(3) (2013). If the district engineer concludes that the mitigation strategy is insufficient, he
“will instruct the prospective permittee on procedures to seek authorization under an individual
permit.” Id. On the other hand, if the district engineer concludes that the activity in question, coupled
with any mitigation measures and activity-specific conditions, is qualified to proceed under the relevant
NWP, he will send a “verification” letter to the permittee.
9
A “linear project” is “a project constructed for the purpose of getting people, goods, or services from
a point of origin to a terminal point, which often involves multiple crossings of one or more
waterbodies at separate and distant locations.” 77 Fed. Reg. at 10,195. “Roads and pipelines are
examples of linear projects.” Id. at 10,263. The parties do not dispute that the FS Pipeline is a linear
project.
16
including preparation of a comprehensive EA pursuant to NEPA. 42 U.S.C.
§ 4332(2)(C). The Corps also conducted an “impact analysis” under the Environmental
Protection Agency’s CWA Section 404(b)(1) guidelines, see 40 C.F.R. Part 230
Subparts C-F, and performed a “public interest review” of the factors set forth in 33
C.F.R. § 320.4(a)(1) (2013). 10 After conducting the relevant reviews and assessments,
the Corps then produced a “decision document” that incorporated all of the information
it gathered and the conclusions it drew from the reviews of the proposed reissuance of
NWP 12. The Corps released this document (along with a notice in the Federal
Register) for public notice and comment. See 33 C.F.R. § 330.1(b); Proposal to Reissue
and Modify Nationwide Permits, 76 Fed. Reg. 9,174 (Feb. 16, 2011). The Corps
subsequently published a final version of the NWP 12 decision document, which
authorized certain discharges in relation to utility projects as described, along with the
Corps’s responses to any public comments.
In the instant case, as noted in Part I.B.1 above, Enbridge filed PCNs in August
and September of 2012, in order to seek verifications from four district engineers that
the FS Pipeline construction project was consistent with NWP 12. Enbridge’s PCNs
included extensive mitigation plans to offset the impact the construction might have on
the environment, including requirements that existing flow rates be maintained; that in-
stream excavation activities be limited in duration; that the contours of waterbody beds
and banks be restored and stabilized within 24 hours; and that specific drilling
10
The regulations governing proposed general permits required the Corps to assess “[a]ll factors which
may be relevant to the proposal” including “conservation, economics, aesthetics, general environmental
concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land
use, navigation, shore erosion and accretion, recreation, water supply and conservation, water quality,
energy needs, safety, food and fiber production, mineral needs, considerations of property ownership
and, in general, the needs and welfare of the people.” 33 C.F.R. § 320.4(a)(1).
17
techniques be employed to avoid any impact (even of a temporary nature) on certain
large and select water bodies. (See, e.g., Decl. of Joseph McGaver, ECF No. 27-2, ¶¶
19-23.)
In August and September of 2013, Enbridge received verifications from each of
the four district engineers stating that discharges and other activities that impact
waterways in relation to the construction of the FS Pipeline were consistent with NWP
12, provided that Enbridge complied in all respects with the environmental mitigation
measures outlined in its PCNs. (Id. ¶ 12.) The district engineers further conditioned
their verification on Enbridge’s purchasing wetland bank credits as compensation for
some temporary and permanent changes of forested wetlands to emergent wetlands, at a
cost of approximately $4 million. (Id. ¶ 26.)
Despite these measures, Plaintiffs contend that the CWA requires the Corps to
have done more to evaluate the environmental impact of the FS Pipeline before
verifying that the water crossings were consistent with NWP 12; in particular, Plaintiffs
maintain that the Corps should have conducted a NEPA review and should have
produced either an EA or an EIS that took into consideration the overall environmental
effect of the entire FS Pipeline project, including those portions that were to be
constructed on privately owned land. (See Compl. ¶¶ 155-60 (Count II).) Plaintiffs
also argue that the district engineers erred in verifying the project’s 1,950 water
crossings under NWP 12 for two reasons: first, because they failed to take into account
the “cumulative” effect of the project, and second, because they verified certain water
crossings that are or will be closer to public water supply intakes than is permitted
18
under the general permitting system. (See Compl. ¶¶ 190-93 (Count VI).)
Significantly, Plaintiffs have eschewed any facial challenge to NWP 12 itself.
3. The Administrative Procedure Act
Plaintiffs’ complaint alleges that, insofar as none of the Federal Agencies have
completed an EA and EIS with respect to the FS Pipeline, the Federal Agencies have
not only violated NEPA, they have also violated the APA. This coupling of the NEPA
requirement with APA review arises primarily from the fact that “NEPA does not
provide a separate cause of action for plaintiffs seeking to enforce its EIS
requirements.” Nat’l Coal. to Save Our Mall v. Norton, 161 F. Supp. 2d 14, 19 (D.D.C.
2001), aff’d, 269 F.3d 1092 (D.C. Cir. 2001). Therefore, Plaintiffs must bring their
NEPA claims under a separate statutory scheme, typically the general review provision
of the APA. See, e.g., City of Williams v. Dombeck, 151 F. Supp. 2d 9, 25 (D.D.C.
2001).
Under the APA, a court reviews an agency action to determine whether it is
“arbitrary or capricious.” 5 U.S.C. § 706(2)(A) (2012). An agency acts arbitrarily or
capriciously if it “relie[s] on factors which Congress has not intended it to consider,
entirely fail[s] to consider an important aspect of the problem, [or] offer[s] an
explanation for its decision that runs counter to the evidence before the agency[] or is
so implausible that it could not be ascribed to a difference in view or the product of
agency expertise.” Stephens v. U.S. Dep’t of Labor, 571 F. Supp. 2d 186, 191 (D.D.C.
2008).
Courts considering an APA claim in the NEPA context often draw a distinction
between, complaints about the scope of an agency’s NEPA analysis, on the one hand,
19
claims that an agency has erred in determining that it is not required to perform a NEPA
analysis, and on the other. In the first category, courts review an agency’s decision to
conduct a limited NEPA review under the typical APA “arbitrary and capricious”
standard because the question presented for review is generally a factual, not legal,
dispute. See, e.g., Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 377 (1989)
(explaining that, when a question presented for review involves a factual dispute, the
court must defer to “the informed discretion of the responsible federal agencies.”). In
the second category, where an agency concludes that NEPA does not apply to its actions
at all, the agency’s decision is “not entitled to the deference that courts must accord to
an agency’s interpretation of its governing statute and is instead a question of law,
subject to de novo review.” Sierra Club v. U.S. Dep’t of Agric., 777 F. Supp. 2d 44, 54
(D.D.C. 2011) (internal quotation marks omitted).
Here, in addition to making several APA claims that derive from the Federal
Agencies’ alleged failure to comply with NEPA (see Compl. ¶¶ 155-89 (Claims II-V)),
Plaintiffs also contend that the Corps violated the APA insofar as that agency’s district
engineers verified that the water crossings at issue in this action satisfied the standards
set forth in NWP 12 (see id. ¶¶ 190-93 (Claim VI)). This latter claim is reviewed under
the familiar arbitrary and capricious standard applicable to claims arising under the
APA. See 5 U.S.C. § 706(2)(A).
4. The Instant Complaint
The aforementioned statutory and regulatory regimes loom large in any
consideration of Plaintiffs’ complaint, and this is especially so where, as here, Plaintiffs
have filed a motion for a preliminary injunction, thereby requiring the Court to assess
20
the likelihood of their success on the merits. (See infra, Part II.) The Court notes that
Plaintiffs’ complaint is not a model of clarity with respect to what conduct is being
alleged as a violation of which statute, however; hence, repeated reminders of the
specific claims and the implicated statutes are required.
To summarize what has already been described, the instant complaint contains
six claims, five of which are relevant to the pending motion. 11 Claim II alleges that the
Corps violated NEPA and the APA, and references both the Corps’s verifications that
the water crossings satisfy NWP 12, which were made pursuant to the CWA, and the
requested easements over federal land, which the Corps is apparently still considering
pursuant to their authority to grant easements for construction projects that traverse
land over which the Corps has jurisdiction. In this claim, Plaintiffs maintain that the
Corps violated federal law when it issued the NWP 12 verifications without performing
an environmental assessment of the pipeline (Compl. ¶¶ 156-60), and also when it
“allow[ed] Enbridge to proceed with construction before the easements have been
granted and before [the] required environmental review has been completed[.]” (Id. ¶
161.)
Claim III alleges that the FWS violated NEPA and the APA when, without
conducting a comprehensive environmental assessment, it issued the required
Biological Opinion and incidental take statement in response to the other agencies’
formal request for a consultation regarding the potential impact of the proposed pipeline
construction project on certain species. (Id. ¶¶ 165-71.)
11
As noted in footnote 4, supra, Claim I has been effectively severed from the instant motion and
therefore is not currently at issue.
21
Claim IV alleges that the PHMSA violated NEPA and the APA when it failed to
approve an oil spill response plan pursuant to the Oil Pollution Act prior to the
beginning of pipeline construction, even though no such plan has been prepared or
submitted to the agency. (Id. ¶¶ 172-79.)
Claim V alleges that all of these federal agency actions or inactions—including
the actions of the BIA in considering Enbridge’s request for easements over Indian land
(which are not the subject of a separate claim)—gave rise to an obligation on the part of
the Federal Agencies to conduct a full-scale NEPA review of the entire FS Pipeline, and
to select a “lead agency” primarily responsible for preparing the report. (Id. ¶¶ 180-
89.)
Finally, Claim VI alleges that the Corps violated NWP 12, the CWA, and the
APA both when it allegedly failed to include consideration of the cumulative effect of
all the verifications issued in connection with the FS Pipeline in its analysis of whether
the verifications satisfied NWP 12, and also when it verified certain water crossings
that are purportedly outside the scope of NWP 12 because they are in the proximity of a
public water supply intake. (Id. ¶¶ 190-193.)
As a result of all of these alleged violations of federal law, Plaintiffs’ complaint
asks this Court for “a declaratory ruling” that contains the following specific findings:
(a) the Corps should have prepared an EA or an EIS for its
verifications and easements; (b) the [FWS] should have
prepared an EA or EIS for its Biological Opinion and
Incidental Take Statement; (c) PHMSA should have
prepared an EA or an EIS for the [FS Pipeline’s] emergency
response plan; (d) the Corps or one of the other federal
agencies involved should have prepared an EA or an EIS for
the entire [FS] Pipeline project, or at a minimum designated
a lead agency for that comprehensive NEPA analysis; and
22
(e) the Corps’ verifications of the [FS Pipeline] were
contrary to the Clean Water Act and [NWP 12].
(Compl. ¶ 8.) Moreover, as mentioned previously, Plaintiffs have now filed a motion
for a preliminary injunction asking the Court to suspend all actions of the Federal
Agencies related to the FS Pipeline and to “enjoin[] Enbridge Pipelines LLC and all of
its agents, officers, employees and anyone acting in concert with it, from construction
and operation of the [FS Pipeline] pending a final ruling on the merits.” (Plaintiffs’
Opening Brief (“Pl. Br.”), ECF No. 14, at 1.)
II. PRELIMINARY INJUNCTION STANDARD
A preliminary injunction is “an extraordinary remedy that may only be awarded
upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res.
Def. Council, Inc., 555 U.S. 7, 22 (2008). A party seeking a preliminary injunction
“must establish [1] that [it] is likely to succeed on the merits, [2] that [it] is likely to
suffer irreparable harm in the absence of preliminary relief, [3] that the balance of
equities tips in [its] favor, and [4] that an injunction is in the public interest.” Id. at 20.
In conducting an inquiry into these four factors, “[a] district court must ‘balance the
strengths of the requesting party’s arguments in each of the four required areas.’ . . . If
the showing in one area is particularly strong, an injunction may issue even if the
showings in other areas are rather weak.” Chaplaincy of Full Gospel Churches v.
England (“CFGC”), 454 F.3d 290, 297 (D.C. Cir. 2006) (quoting CityFed Fin. Corp. v.
Office of Thrift Supervision, 58 F.3d 738, 746 (D.C. Cir. 1995)). However, “a movant
23
must demonstrate ‘at least some injury’ for a preliminary injunction to issue.” Id.(citation omitted). 12
III. ANALYSIS
A. Likelihood Of Success On The Merits
1. Plaintiffs’ NEPA Claims
Four counts of Plaintiffs’ complaint directly implicate NEPA, as previously
explained. Although Plaintiffs have opted to plead substantially similar NEPA
allegations in separate counts, Plaintiffs have repeatedly summarized their overarching
NEPA contention as the argument that as a result of the Federal Agencies’ participation
in various aspects of the FS Pipeline construction project, the agencies had a statutory
obligation to prepare an EIS, or at least to conduct an EA, of the entire pipeline, even
those portions that are being constructed on private land and that would otherwise not
be subject to federal oversight. (See, e.g., Pl. Br. at 19-21; Plaintiffs’ Reply Brief (“Pl.
Reply”), ECF No. 34, at 19-21; Hr’g Tr. (Sept. 27, 2013), at 10:9-11 (statement of
Plaintiffs’ counsel that “[t]he question [in this case] is whether any federal agency has
to look at the entire oil pipeline.”).) There is no dispute that the NEPA duty to prepare
12
This approach to analyzing the preliminary injunction factors is traditionally used in this Circuit and
is often referred to as a “sliding scale.” The D.C. Circuit has recently suggested that this sliding scale
approach may no longer be applicable after the Supreme Court’s decision in Winter and that, instead, a
more stringent test applies. See Sherley v. Sebelius, 644 F.3d 388, 393 (D.C. Cir. 2011) (likelihood of
success on the merits and irreparable harm may be “independent, free-standing requirement[s] for a
preliminary injunction” (internal quotations marks and citation omitted)); see also Davis v. Pension
Benefit Guar. Corp., 571 F.3d 1288, 1296 (D.C. Cir. 2009) (Kavanaugh & Henderson, JJ., concurring)
(“[U]nder the Supreme Court’s precedents, a movant cannot obtain a preliminary injunction without
showing both a likelihood of success and a likelihood of irreparable harm, among other things.”).
However, in the absence of a precedential ruling to this effect, this Court will apply the more lenient
sliding scale standard to the injunction at issue here. Cf. Kingman Park Civic Ass’n v. Gray, No.
13-cv-990, 2013 WL 3871444, at *3 (D.D.C. Jul. 29, 2013) (“[A]bsent . . . clear guidance from the
Court of Appeals, the Court considers the most prudent course to bypass this unresolved issue and
proceed to explain why a preliminary injunction is not appropriate under the ‘sliding scale’ framework.
If a plaintiff cannot meet the less demanding ‘sliding scale’ standard, then it cannot satisfy the more
stringent standard alluded to by the Court of Appeals.”).
24
an EIS or to conduct an EA—hereinafter collectively referred to as an “environmental
review” under NEPA—only arises when a federal agency undertakes “major federal
action[] significantly affecting the quality of the human environment[.]” 42 U.S.C.
§ 4332(2)(C). For the reasons that follow, the Court concludes that Plaintiffs have not
demonstrated that they are likely to succeed on the merits of their contention that the
participation of any of the Federal Agencies, alone or in combination, triggered a NEPA
obligation to conduct an environmental review of the FS Pipeline before construction
on the pipeline project commenced.
a. The Corps’s Verifications Were Issued Under NWP 12 And Thus An
Individualized Environmental Review Under NEPA Was Not Required
Plaintiffs’ myriad allegations and assertions regarding the Corps’s CWA
verifications appear to boil down to two basic contentions: (1) the verifications
themselves “[c]onstitute [m]ajor [f]ederal [a]ction[s]” that triggered a duty on the part
of the Corps to conduct an environmental review under NEPA (Pl. Br. at 13), and (2)
the fact that the verifications in this case involved many water crossings spread out
throughout the entire pipeline transformed the otherwise private construction project
into a major federal action such that the Corps should have conducted an environmental
review of the pipeline pursuant to NEPA (id. at 19). Neither of these assertions is
likely to be successful on the merits.
First of all, the linchpin of these related arguments is the mistaken assumption
that the verifications are the equivalent of a permit insofar as they effectively
authorized the FS Pipeline to proceed. (See, e.g., id. at 13 (stating that “[t]he Corps’[s]
verifications under NWP 12 permit the construction of the Pipeline” and that “Corps’[s]
approval is ‘essential to completion of the project’” (citation omitted)); see also id.
25(“No part of Flanagan South could operate without the verifications.”).) To be sure,
some courts have held that “‘if a federal permit is a prerequisite for a project with
adverse impact on the environment, issuance of that permit does constitute a major
federal action’” for NEPA purposes, as Plaintiffs argue here. (Pl. Br. at 13 (quoting
Ramsey v. Kantor, 96 F.3d 434, 444 (9th Cir. 1996)); see also id. (citing Wyoming
Outdoor Council v. U.S. Corps of Eng’rs, 351 F. Supp. 2d 1232, 1242 (D. Wyo.
2005)).) But such courts generally were not assessing verifications under the CWA,
and to characterize the verifications here as “allowing” or “approving” the FS Pipeline
project is inaccurate—the record suggests that Enbridge evaluated the risks and started
construction of portions of the pipeline on private land even before it had secured all of
the necessary federal rights-of-way—and also manifestly inconsistent with the fact that
no federal approval or permission is required for construction of a domestic oil pipeline
such as this one. 13
Moreover, and even more important, the law quite clearly distinguishes between
“verifications” and “permits” in the CWA context, compare 33 C.F.R. Part 325
(establishing procedures for individual permits), with 33 C.F.R. Part 330 (detailing
procedures for verification under general permitting system), and the entire point of the
general permitting system is to avoid the burden of having to conduct an environmental
review under NEPA when a verification—as distinguished from an individual discharge
permit—is sought. As previously and extensively explained, under the general
13
Notably, as an entirely domestic pipeline, construction of the FS Pipeline does not require federal
permission, oversight, or approval, and is therefore fundamentally unlike pipelines that bring oil into
the United States from other countries. The proposed Keystone XL Pipeline, for example, is an
international project that requires the State Department to issue a Presidential Permit finding that it is
in the “national interest” before it can be constructed. See, e.g., Final Environmental Impact Statement
for the Proposed Keystone XL Project, 76 Fed. Reg. 55,155 (Sept. 6, 2011); see also Exec. Order
13,337, 69 Fed. Reg. 25,299 (Apr. 30. 2004). For this reason alone, Plaintiffs’ repeated comparisons
between the FS Pipeline and the Keystone XL Pipeline (see, e.g., Pl. Br. at 4, 26-27) are misguided.
26
permitting system, the Corps conducts an extensive environmental review and provides
the public with notice and an opportunity to comment regarding categories of
construction activity that the Corps seeks to designate as having minimal impact on
waterways within specified geographical regions. See 33 C.F.R. § 330.1(b). The
purpose of the statute that authorizes general permits such as the nationwide permit at
issue here is to allow the Corps to designate certain construction projects as eligible for
CWA discharge permits “with little, if any, delay or paperwork” because they fit within
these pre-cleared categories of activities. Id.; see also Snoqualmie Valley Pres.
Alliance v. U.S. Army Corps of Eng’rs, 683 F.3d 1155, 1164 (9th Cir. 2012) (“The
purpose of [the NWP] scheme is to enable the Corps to quickly reach determinations
regarding activities that will have minimal environmental impacts[.]”). Courts have
found, and this Court agrees, that “[r]equiring an elaborate analysis of the applicable
regulations and the facts would defeat th[e] purpose[]” of a general permit. Snoqualmie
Valley, 683 F.3d at 1163.
Consequently, it makes little sense that, notwithstanding the FS Pipeline
project’s eligibility for verification under NWP 12, the Corps nevertheless had to
conduct a full environmental review under NEPA, as Plaintiffs maintain. In other
words, the requisite comprehensive environmental review is done upfront under the
general permitting system precisely to avoid a NEPA environmental review regarding
certain projects that fit into categories of activity that have been predetermined to have
minimal environmental impact. Therefore, once the Corps’s district engineers verified
that the discharges resulting from the FS Pipeline satisfied NWP 12, no additional
environmental review was required.
27
It is also conceptually mistaken to characterize a CWA verification as qualifying
for “major federal action” status when the Corps’s actual role in providing a
verification letter pursuant to the general permitting process is properly understood.
Many projects undertaken pursuant to a general permit do not even need to be brought
to the Corps’s attention; there is no federal action, much less “major” federal action, in
regard to such projects. See 33 C.F.R. § 330.1(e)(1). Even when a general permit
requires that the Corps provide pre-construction verification, such as is the case with
NWP 12, the Corps’s role is limited to determining whether the project in question does
or does not satisfy the terms of the general permit, and if not, what steps the party
seeking verification must take to bring their project within the ambit of that
authorization. Id. § 330.1(e)(3). This type of check-in is far less involved than the
probing assessment of the particular facts, circumstances, and environmental
consequences of a specific project proposal that precedes a Corps determination of
whether or not an individual discharge permit should issue. Put another way, under the
nationwide permit system, the Corps has already done an environmental review on a
general categorical basis and has already given its imprimatur to discharges that result
from the type of construction activity at issue under specified circumstances. When a
prospective permittee files a pre-clearance notice, the only thing left to be done is for
the Corps’s district engineers to verify that the planned project does, in fact, fit within
the category of activities that the Corps has already authorized. And given Congress’s
stated interest in targeting “major federal actions” for extensive environmental review
under the NEPA statute, 42 U.S.C. § 4332(2)(C) (emphasis added), it is unlikely that
this limited verification process is what Congress had in mind.
28
In sum, Plaintiffs do not, and cannot, dispute that the general permitting system
operates on a different track than the individual project-by-project permitting process
for construction project discharges that would otherwise apply under the CWA, or that
only major federal actions trigger a duty to conduct an environmental review under
NEPA. Plaintiffs also disclaim any facial challenge to the general permitting statute or
NWP 12 in the context of this action, see Hr’g Tr. at 15:8-13, and it is clear that when a
project proceeds under a valid general permit, NEPA’s environmental review obligation
and other permitting requirements that would otherwise apply are irrelevant. See, e.g.,
Ouachita Riverkeeper, Inc. v. Bostick, 938 F. Supp. 2d 32, 35-36, 45-46 & 46 n.7
(D.D.C. 2013) (distinguishing between nationwide and individual permits and finding
that no NEPA analysis was required where construction was properly verified under
NWP 12); Snoqualmie Valley, 683 F.3d at 1164 (“Verifying that permittees may
properly proceed under a nationwide permit does not require a full NEPA analysis at
the time of the verification.”). With all this considered, the Court sees no clear path to
victory for Plaintiffs regarding the first aspect of their claim that the Corps violated
NEPA when it proceeded to verify that the discharges and other activities related to
construction of the FS Pipeline were consistent with NWP 12 without conducting an
environmental review.
Plaintiffs’ related contention regarding the Corps’s verifications—that the large
number of water crossings and related verifications involved with the FS Pipeline
project makes this project a major federal action for NEPA purposes—fares no better.
Plaintiffs take issue with the fact that four different Corps district engineers verified
approximately 1,950 separate water crossings related to the FS Pipeline under NWP 12
29
without undertaking a comprehensive NEPA analysis of the pipeline. (See, e.g., Pl. Br.
at 13, 20, 25.) But Plaintiffs have not established that the number of verifications
requested in relation to a project does or should have any effect on the general
permitting system, much less that a project can be pushed off the general permit track
and made to proceed down the alternative individual permit route if more than a certain
number of verifications are involved. Nor do Plaintiffs provide any reason why the
number of verifications required by a particular project should have any bearing on that
project’s ability to be verified as consistent with a general permit. 14 Plaintiffs have not
identified any authority in the law or in the language of NWP 12 that would allow the
Court to graft the NEPA requirement attendant to the individualized permitting system
onto the general permitting system whenever the Corps issues a large number of
verifications with respect to a linear construction project such as the FS Pipeline, and
the Court sees no reason for doing so, especially where, as here, importing an
environmental review obligation would undermine the purpose and efficacy of the
general permitting system. Moreover, Plaintiffs have also thus far failed to provide an
answer to the practical concern that requiring additional environmental review for
projects that qualify for a general permit would give rise to significant and untenable
uncertainty for any construction project—large or small—that seeks to rely on a general
permit in lieu of an individual permit and accompanying NEPA review.
Finally, the Court notes that Spiller v. Walker, No. A 98 CA 255 SS, 1998 U.S.
Dist. LEXIS 18341 (W.D. Tex. Aug. 25, 1998), and the dissenting opinion in Sierra
14
By Plaintiffs’ logic, one construction project that requires 2,000 verifications for water crossings
would be subject to further environmental review under NEPA, while 2,000 separate projects that each
require a single verification for a water crossing would not necessarily require additional review,
despite the fact that both scenarios theoretically pose the same potential threat to the aquatic
environment.
30
Club v. Bostick, No. 12-6201, 2013 WL 5539633, at *9 (10th Cir. Oct. 9, 2013)—upon
which Plaintiffs rely—are unpersuasive primarily because the logic of these cases does
not sufficiently account for the fact that Congress established a general permitting
system as an alternative to the requirement that construction projects with a minimal
potential impact on national waterways obtain an individual permit under the CWA.
Like the instant case, Spiller involved an oil pipeline that crossed both waterways and
federal land under the Corps’s jurisdiction. Moreover, although the Spiller court is not
entirely clear on this point, it appears that the pipeline operator in that case applied to
have the water crossings verified pursuant to a general permit. See id. at *39 (“[The
pipeline operator] has requested a nationwide permit under section 404 of the Clean
Water Act[.]”). Under the circumstances presented, the Spiller court concluded that
“[t]he Army’s role in granting permits for construction over navigable waters and
granting a right-of-way over [federal land] combine to have such a crucial impact on the
construction of the [pipeline] at so many points along the pipeline that it can only be
described as ‘major [f]ederal action.’” Id. at *40-41. Of particular note in this passage
is the fact that the Spiller court invoked the “Army’s role in granting permits” as
indicative of the level of federal involvement in the pipeline, and Plaintiffs point to this
language as support for the proposition that the issuance of permits under the CWA
where the federally-controlled waters were found throughout the project required NEPA
review of the project. (See Pl. Br. at 17.)
As explained above, however, the Corps does not grant permits pursuant to the
general permitting process; rather, it simply verifies that an application meets the
criteria for the pre-existing general authorization. And this difference is not merely
31
semantic—rather, the process for the Corps’s issuing an individual permit is very
different, and far more involved, than the process of verifying that a construction
project is consistent with the terms of a general permit. The court in Spiller failed
entirely to consider this crucial distinction; indeed, apart from the single passing
reference to a nationwide permit mentioned above, the Spiller opinion contains no
discussion of the general permitting system at all. Therefore, in addition to the fact that
Spiller is not binding authority in this jurisdiction, this Court finds that it simply cannot
follow Spiller’s logic.
Nor does the dissenting opinion in Bostick add any additional heft to Plaintiffs’
argument that Spiller reached the right result. (See Plaintiffs’ Notice of Supplemental
Authority (“Pl. Supp. Br.”), ECF No. 42, at 2-3.) Bostick is a Tenth Circuit case that
was on appeal from the denial of a preliminary injunction where the plaintiffs had
launched a facial challenge to NWP 12 (that alone distinguishes it from the instant
matter). 2013 WL 5539633, at *1. Although the majority opinion reached only the
question of irreparable harm, the dissenting judge evaluated likelihood of success on
the merits, and relying extensively on Spiller, concluded that the entire pipeline at issue
in that case—the nearly 500-mile Gulf Coast Pipeline—should have been subject to
NEPA review. Id. at *13. The principal factual basis for the dissenter’s conclusion was
the “number of permits issued by the Corps relative to the overall size of the Gulf Coast
Pipeline,” and in light of this ratio, the dissenter found it “patently ludicrous” to
32
maintain that “the Corps’ permitting involves only a ‘link’ in the Gulf Coast Pipeline[]”
such that it was not a major federal action for NEPA purposes. Id. at *11. 15
But, like the Spiller judge before him, the dissenting judge in Bostick
inexplicably failed to acknowledge the critical difference between the Corps’s role as
permitter—an authority it exercises when and if an individual discharge permit is
requested—and its role as a verifier, which it undertakes when a general permit
involving construction activity that has already received extensive environmental
review requires an applicant to file a pre-clearance notice and to obtain the Corps’s
verification that its project is consistent with the existing general permit. Rather, the
dissenting opinion (mistakenly) asserts that the Corps “issue[d] 2,227 permits”
regarding the Gulf Coast Pipeline. Id. at *11 (emphasis added). And having so
mischaracterized the Corps’s role with respect to the pipeline project, it is no wonder
that the dissenting judge believed that the Corps’s verification of the large number of
water crossings at issue was a major federal action for NEPA purposes. Id. at *12.
The instant Court views the distinction between verifications and permits as
making all of the difference as far as a NEPA analysis is concerned, as explained above.
Therefore, even setting aside the fact that a dissenting opinion has no precedential
value, the Bostick dissent’s failure to acknowledge that the Corps’s verifications are not
the functional equivalent of permits renders its analysis wholly unpersuasive.
15
According to the dissenting opinion, “[t]he Gulf Coast Pipeline is 485 miles long, and required the Corps to issue
2,227 permits for water crossings[,]” which “means that the Gulf Coast Pipeline crosses United States waters almost
five times in each mile, or about once every 1150 feet.” Bostick, 2013 WL 5539633, at *11.
33
b. The Fish and Wildlife Service’s Biological Opinion and Incidental
Take Statement Did Not Trigger A Duty To Undertake A NEPA Review
Plaintiffs also maintain that the FWS engaged in a major federal action sufficient
to give rise to an obligation to perform a NEPA environmental review of the FS
Pipeline when it issued the Biological Opinion and incidental take statement in response
to formal requests from the Corps and the BIA. (Pl. Br. at 21-22; cf. Defendant’s
Opposition Brief (“Def. Br.”), ECF No. 28, at 15-16.) The statute pursuant to which the
FWS issued its opinion and take statement (Section 7 of the ESA, 16 U.S.C. § 1536(b))
establishes a “consultation” process whereby other federal agencies considering
whether or not to exercise their own permitting authority engage with the FWS—a
process that differs significantly from the kind of agency activity that ordinarily counts
as major federal action for NEPA purposes. Compare City of Dania Beach, Fla. v.
FAA, 485 F.3d 1181, 1189 (D.C. Cir. 2007) (FAA regulation expanding airport runway
use was “clearly major federal action” requiring NEPA review). The Court’s hesitancy
to view a Section 7 consultation as a major federal action on the part of the FWS for
NEPA purposes is especially justified given that, under Section 7, it is the requesting
agency, not the FWS, that ultimately decides what impact the biological opinion and
incidental take statement will have on the construction project under consideration. See
50 C.F.R. § 402.15(a) (2013) (“Following the issuance of a biological opinion, the
Federal agency shall determine whether and in what manner to proceed with the action
in light of its section 7 obligations and the Service’s biological opinion.”). But this is
not to say that an FWS opinion and incidental take statement issued pursuant to the
Section 7 consultation process can never rise to the level of major federal action; in
Ramsey v. Kantor, 96 F.3d 434 (9th Cir. 1996)—the primary legal precedent Plaintiffs
34
offer in support of the argument that the FWS’s Biological Opinion and incidental take
statement constituted a major federal action in this case—the Ninth Circuit held as
much.
Ramsey involved a legal challenge to two states’ plans for the management of
their salmon fisheries. The states of Oregon and Washington sought to issue permits
for salmon fishing in certain rivers where fishing would otherwise be off limits under
the Endangered Species Act because endangered species of salmon mingled with non-
endangered salmon. Id. at 439. As the Ninth Circuit panel viewed the facts, salmon
fishing in those areas as authorized by state law could only proceed consistent with the
Endangered Species Act if the federal agency that regulates activities impacting
endangered salmon rendered a biological opinion “examining the proposed action and
the anticipated effects on the species,” id. at 440, and if that agency also issued an
incidental take statement that effectively waived the otherwise applicable federal
penalty for the incidental killing of a certain number of the endangered type of salmon.
The issue presented in Ramsey was whether issuance of an incidental take statement
under such circumstances constituted a major federal action that gave rise to a NEPA
duty to conduct an environmental review of the state fishing plans. Id. at 443.
Emphasizing that “it is all but impossible to fish for [non-endangered] salmon . . .
without incidentally taking salmon that are listed [as endangered species,]” the panel
held that the federal agency’s incidental take statement was a major federal action for
the purpose of NEPA. Id. at 444.
The Ramsey court’s conclusion finds no applicability here. Ramsey’s holding
rested on the court’s observation that “the incidental take statement in this case is
35
functionally equivalent to a permit because the activity in question would, for all
practical purposes, be prohibited but for the incidental take statement.” Id. (emphasis
added). The project that was under consideration in Ramsey was the states’ plan to
allow fishing for non-endangered salmon in areas that ensured that endangered salmon
would be caught, and under those circumstances, the federal agency’s incidental take
statement was clearly essential to the adoption of that plan. See id. at 444. Here, by
contrast, the FWS’s Biological Opinion is at best peripheral to the project in question.
The FS Pipeline is a private construction project involving the transportation of
domestic oil reserves that is by no means aimed at the capture of any species, much less
endangered species, and there is no evidence to suggest that the project could not
proceed without the FWS’s incidental take statement such that the statement is
“functionally equivalent to a permit.” Put another way, although the FWS’s Section 7
consultation responsibilities may sometimes have such a direct impact on a project that
the incidental take statement rises to the level of major federal action, this will not
always be so, and there is nothing about the FWS’s consideration of the Indiana bat, the
American burying beetle, and the decurrent false aster in relation to the FS Pipeline that
would permit the conclusion that the incidental take statement at issue here had any
such impact (at least on the record as it currently exists). Accordingly, Plaintiffs have
failed to show a likelihood of success on the merits with respect to their NEPA claim
based on the FWS’s actions.
c. Federal Review Of The Requested Easements Is Ongoing And May Yet
Result In The Requested NEPA Analysis
Plaintiffs also argue that the Corps’s and the BIA’s consideration of Enbridge’s
requests for easements counts as major federal action for NEPA purposes. Unlike other
36
aspects of Plaintiffs’ complaint, it appears that there is no dispute that granting an
easement over federal land qualifies as a major federal action under NEPA, at least with
respect to the portion of the project that is slated to run over the land under federal
control. (See Def. Br. at 20-21.) The trouble with this claim is that the requested
federal easements for the FS Pipeline are still under consideration by the Corps and the
BIA, and there is evidence in the record that indicates that these agencies may even
have commenced the environmental review that is the object of Plaintiffs’ allegations.
(See, e.g., Decl. of Scott L. Whiteford), ECF No. 28-6, ¶ 7; Decl. of Eddie Streater),
ECF No. 28-7, ¶ 11.) Under these circumstances, the Court has significant concerns
that Plaintiffs’ NEPA claims regarding the easements are not yet ripe. See Texas v.
United States, 523 U.S. 296, 300 (1998) (“A claim is not ripe for adjudication if it rests
upon contingent future events that may not occur as anticipated, or indeed may not
occur at all.” (citation and internal quotation marks omitted)).
Plaintiffs’ briefs in support of the motion for a preliminary injunction do little to
allay those concerns. Plaintiffs’ primary argument is that, even if an environmental
review is currently being performed with respect to the requested easements, the Corps
and the BIA nevertheless violated NEPA by allowing construction of other parts of the
FS Pipeline prior to the completion of that review. (Pl. Reply at 13.) However, as has
been repeated numerous times above, federal agencies do not “allow” or “permit”
construction of a domestic oil pipeline on privately owned land. Indeed, it is precisely
because domestic oil pipelines do not require federal authorization that Enbridge
apparently started building the FS Pipeline even before the federal agencies had
determined whether or not to grant the easements in question.
37
In any event, given the state of the record at this point, Plaintiffs have failed to
persuade the Court that an injunction is appropriate when the alleged NEPA violation
has not yet occurred and is still in the process of being addressed. Because the Court is
not convinced that Plaintiffs will be successful in sustaining their claim that the
pending easement requests can be the basis for any cognizable NEPA violation, the
Court declines to issue an injunction on this ground at this time.
d. There Is No Basis For Plaintiffs’ Contention That The PHMSA Has A
NEPA Obligation To Undertake An Environmental Review
Plaintiffs also provide no support for their argument that the inaction of the
PHMSA with respect to a contingency oil spill plan triggered a NEPA duty to conduct
an environmental review of the FS Pipeline, nor can they, because this claim appears to
be baseless. It is true that there has been no action on the part of the PHMSA, but that
is primarily because the agency has not even been provided with an opportunity to act.
To recap what was explained above, under federal law a pipeline owner is only required
to prepare and submit a spill response plan before a pipeline begins operation—not
before it is constructed—and, indeed, Enbridge has yet to submit such a plan to the
PHMSA. See 49 C.F.R. § 194.7 (2013). To argue here, as Plaintiffs do, that the
PHMSA nevertheless somehow has engaged in a major federal action for NEPA
purposes defies logic. And unless and until Plaintiffs are able to demonstrate that a
federal agency that has not been invited to act in any way regarding a project with
potential environmental impacts can nonetheless be deemed to have engaged in a
“major federal action[] significantly affecting the quality of the human environment”
38
for NEPA purposes, there is little likelihood that Plaintiffs will prevail on the PHMSA
claim.
e. Even Viewed Collectively, The Federal Agencies’ Actions Do Not Give
Rise To Any NEPA Duty To Assess The Environmental Impact Of The
Entire FS Pipeline
Finally, we arrive at what Plaintiffs have conceded is the core of their NEPA-
related concern: that the collective actions of the various Federal Agencies triggered an
obligation under NEPA for some agency to conduct an environmental review not only
of the portions of the pipeline that required that agency’s input but also of the entire
589-mile domestic pipeline project. (See Compl. ¶ 182 (asserting that the federal
actions “singly, in combination, and cumulatively constitute major federal action and
thus trigger the requirement under NEPA that the Corps prepare an EA and/or EIS for
the entire [FS Pipeline.]”); see also Pl. Br. at 19, 24-27.) Plaintiffs’ principal worry
appears to be that no such comprehensive environmental review of the entire FS
pipeline was undertaken prior to the beginning of pipeline construction. (Pl. Br. at 29-
30.) But Plaintiffs cannot deny that the obligation to review a project pursuant to
NEPA arises only when there is “major federal action.” 42 U.S.C. § 4332(2)(C)
(emphasis added). In the Court’s view, Plaintiffs have significantly overstated the
degree of federal involvement in the FS Pipeline in an attempt to shoehorn this
essentially private project into the NEPA statute; consequently, at least on the record as
it currently stands, Plaintiffs’ claim that NEPA requires a comprehensive environmental
review is unlikely to be successful.
Plaintiffs’ argument is not unprecedented. The question of how much federal
involvement is needed to “federalize” an otherwise private project such that NEPA
39
review is required for the entire undertaking is a dilemma that has vexed courts and
commentators for some time. See, e.g., Jeslyn Miller, Note, Clarifying the Scope of
NEPA Review and the Small Handles Problem, 37 Ecology L.Q. 735, 737 (2010)
(“[C]ourts have struggled with the extent to which an environmental analysis under
[NEPA] must consider the entirety of a private development or just those components
subject to direct federal jurisdiction.”); see also Save Our Sonoran, Inc. v. Flowers,
227 F. Supp. 2d 1111, 1113 (D. Ariz. 2002) (“The scope of analysis of federal action by
the Corps of Engineers under [NEPA] is a topic not without controversy.” (citation
omitted)). Put in the parlance of NEPA, the issue is when and under what
circumstances an otherwise private project is transformed into a “major federal action”
requiring a federal agency to undertake an environmental review of the entire project.
42 U.S.C. § 4332(C). 16
In Winnebago Tribe of Nebraska v. Ray, 621 F.2d 269 (8th Cir. 1980), the Eighth
Circuit confronted this question in regard to a fact scenario similar to the one before
this Court. Winnebago Tribe concerned a tribe’s attempt to enjoin the construction of a
67-mile power line, 1.25 miles of which crossed waters under the jurisdiction of the
Corps. Id. at 270. While the Corps prepared an EA with respect to the river-crossing
portion of the power line as part of its consideration of a request for an individual
permit related to that water crossing, the plaintiff argued that, under NEPA, the Corps
was obligated to do an environmental assessment of the entire pipeline. Id. at 272. In
addressing the question of the scope of the required environmental review, the Eighth
16
This question is apparently common enough to have earned a nickname in the academic literature: the “small
handles” problem. See generally Elizabeth A. Roche, The Continuing Saga of Rippling Puddles, Small Handles and
Links of Chains: Wetlands Action Network v. United States Army Corps of Engineers, 13 Vill. Envtl. L.J. 119(2002); Mary K. Fitzgerald, Comment, Small-Handles, Big Impacts: When Should the National Environmental
Policy Act Require an Environmental Impact Statement?, 23 B.C. Envtl. Aff. L. Rev. 437 (1996).
40
Circuit distinguished between a federal agency’s “[f]actual or veto control” of a
project—that is, where there is some federal involvement necessary in a piece of a
project—and an agency’s “legal control or ‘enablement’” of a project—that is, where
“federal action is a legal condition precedent to accomplishment of an entire nonfederal
project.” Id. (citation omitted). In the former situation, the Winnebago Tribe court
identified three factors “helpful in determining” whether a “project-wide analysis” was
required:
(1) the degree of discretion exercised by the agency over the
federal portion of the project; (2) whether the federal
government has given any direct financial aid to the project;
and (3) whether the overall federal involvement with the
project (is) sufficient to turn essentially private action into
federal action.
Id. (citation omitted). The Eighth Circuit considered these factors in the context
presented and ultimately concluded that “the Corps did not have sufficient control and
responsibility” over the power line “to require it to study the entire project.” Id. at 273.
Turning to the instant case, federal action is not a “legal condition precedent” to
the construction and operation of the FS Pipeline because there is no comprehensive
federal permitting system governing domestic oil pipelines; indeed, just as in
Winnebago Tribe, federal involvement with the FS Pipeline’s construction is purely
related to the pipeline’s location. Moreover, the Court agrees with the decision in
Winnebago Tribe that, where federal action is not a legal condition precedent, the
inquiry into the scope of NEPA review turns on the degree of federal “control and
responsibility” of a given project as a matter of fact. See id. at 273. And given the
factual similarities between the FS Pipeline and the power line at issue in Winnebago
Tribe, the Court sees no reason why the two cases should reach different results
41
regarding the degree of federal control and responsibility. As noted above, the FS
Pipeline is essentially a private project, and, like Winnebago Tribe, the federal
involvement is limited to a very small portion of the overall project. As previously
explained, the water crossings were verified under NWP 12 and are thus not subject to
NEPA analysis; consequently, the relevant federal involvement with this particular
project for the purpose of addressing the extent of federal control and responsibility is
limited to the 1.3 miles of federal land under the Corps’s jurisdiction and the 13.8 miles
of land subject to the jurisdiction of the BIA. In this Court’s judgment, these minor
pieces of federal involvement in a nearly 600-mile pipeline fall short of imbuing the
federal government with “control and responsibility” over the pipeline as a whole. See
id. at 273 (“[T]he fact that part of the [project] will cross [land under federal
jurisdiction] does not suffice to turn this essentially private action into federal action.”).
The Corps’s regulations outlining the scope of its obligations under NEPA—
which expressly incorporate the “control and responsibility” standard articulated in
Winnebago Tribe—buttress this conclusion. These regulations, entitled “NEPA
Implementation Procedures for the Regulatory Program,” provide guidance specifically
as to the scope of the Corps’s NEPA responsibilities for a given project. See 33 C.F.R.
Part 325, Appendix B. In relevant part, the regulations, which generally apply when the
Corps grants permits, provide:
Typical factors to be considered in determining whether
sufficient “control and responsibility” exists include:
(i) Whether or not the regulated activity comprises “merely a
link” in a corridor type project (e.g., a transportation or
utility transmission project).
42
(ii) Whether there are aspects of the upland facility in the
immediate vicinity of the regulated activity which affect the
location and configuration of the regulated activity.
(iii) The extent to which the entire project will be within
Corps jurisdiction.
(iv) The extent of cumulative Federal control and
responsibility.
A. Federal control and responsibility will include the
portions of the project beyond the limits of Corps
jurisdiction where the cumulative Federal involvement of the
Corps and other Federal agencies is sufficient to grant legal
control over such additional portions of the project. These
are cases where the environmental consequences of the
additional portions of the projects are essentially products of
Federal financing, assistance, direction, regulation, or
approval[.]
Id. Part 325, Appendix B § 7(b)(2) (emphasis added). The regulations go on to provide
specific examples of how federal control and responsibility in a corridor project should
be measured:
For example, a 50-mile electrical transmission cable
crossing a 1 ¼ mile wide river that is a navigable water of
the United States requires a [Department of the Army]
permit. Neither the origin and destination of the cable nor
its route to and from the navigable water, except as the route
applies to the location and configuration of the crossing, are
within the control or responsibility of the Corps of
Engineers. Those matters would not be included in the
scope of analysis which, in this case, would address the
impacts of the specific cable crossing.
Conversely, for those activities that require a DA permit for
a major portion of a transportation or utility transmission
project, so that the Corps permit bears upon the origin and
destination as well as the route of the project outside the
Corps regulatory boundaries, the scope of analysis should
include those portions of the project outside the boundaries
of the Corps section 10/404 regulatory jurisdiction. To use
the same example, if 30 miles of the 50–mile transmission
line crossed wetlands or other “waters of the United
43
States,” the scope of analysis should reflect impacts of the
whole 50–mile transmission line.
Id. Part 325, Appendix B § 7(b)(3) (emphasis added). Here, for the reasons expressed
above, there is little doubt that the federal involvement with the FS Pipeline falls under
the first of the two examples quoted above.
Undaunted, Plaintiffs attempt to co-opt the regulations to argue that the Corps’s
involvement with the FS Pipeline does, in fact, extend to a “major portion” of the
project based on the significant number of water crossings and the fact that they are
spread throughout the length of the pipeline. (Pl. Br. at 19-20.) In making this
argument, Plaintiffs rely heavily on cases such as White Tanks Concerned Citizens, Inc.
v. Strock, 563 F.3d 1033 (9th Cir. 2009), and Save Our Sonoran, Inc. v. Flowers, 408
F.3d 1113 (9th Cir. 2005), in which courts have found that even limited federal
involvement in a project can be sufficient to “federalize” the project such that NEPA
review of the entire project is warranted. In the cases Plaintiff cites—both of which
concerned individual discharge permits related to waters under the Corps’s
jurisdiction—the courts based their ultimate conclusions on the fact that the waters in
question were found throughout the project sites at issue. See White Tanks, 563 F.3d at
1040; Save Our Sonoran, 408 F.3d at 1122. In Plaintiffs’ view, the FS Pipeline
presents precisely this scenario because of the Corps’s verification of 1,950 water
crossings spread throughout the length of the FS Pipeline.
However, two crucial aspects of the instant case distinguish it from cases like
White Tanks and Save Our Sonoran. First, the cases Plaintiffs rely upon concerned
permits under the individual permitting system of the CWA, not verifications under the
general permitting system. See White Tanks, 563 F.3d at 1037; Save Our Sonoran, 408
44
F.3d at 1118. For the reasons discussed at length above, the Corps’s verifications do
not qualify as a major federal action for NEPA purposes, and without those
verifications, the requested easements over small pieces of federal land make the facts
of this case look much more like Winnebago Tribe than White Tanks or Save Our
Sonoran. Second, neither of the cases that Plaintiffs rely on concerned corridor-type
projects such as the one at issue here. This fact is especially significant because
Plaintiffs cite these cases for the proposition that the number of water crossings and the
fact that they are spread throughout the length of the pipeline—rather than the total
amount of land or water subject to federal jurisdiction relative to the pipeline as a
whole—should control the inquiry into what constitutes a “major portion” of the
pipeline. It is true that the Ninth Circuit emphasized the degree to which the federal
action in White Tanks and Save Our Sonoran pervaded the respective construction
projects, but those projects were single-location endeavors, not the corridor-type
projects that are specifically referred to in the Corps’s regulations. See White Tanks,
563 F.3d at 1040; Save Our Sonoran, 408 F.3d at 1121. The scenarios in the
regulations, which expressly apply to corridor-type projects, provide the better model
for the ratio that governs the “control and responsibility” inquiry, and those examples
focus on the total amount of land or water under federal jurisdiction relative to the total
length of the project. See 33 C.F.R. Part 325, Appendix B § 7(b)(3). By that rubric,
Plaintiffs are unlikely to be able to demonstrate that the Corps had sufficient “control
and responsibility” over the FS Pipeline to require NEPA review of the entire project.
Plaintiffs’ final attempt to convince the Court that the entire FS Pipeline was
“federalized” for NEPA purposes derives from a legal doctrine that is sometimes
45
invoked in NEPA cases: the so-called “independent utility” doctrine. (See Pl. Reply at
8-10.) This doctrine prevents federal agencies or project operators “from dividing one
project into multiple individual actions each of which individually has an insignificant
environmental impact, but which collectively have a substantial impact.” Natural
Resources Def. Council, Inc. v. Hodel, 865 F.2d 288 (D.C. Cir. 1988) (internal
quotation marks and citation omitted). Plaintiffs maintain that the “independent utility
doctrine” requires a NEPA review of the entire FS Pipeline, as opposed to a review of
just the portions of the pipeline that transect areas of federal jurisdiction, primarily on
the basis of Hammond v. Norton, 370 F. Supp. 2d 226 (D.D.C. 2005), which concerned
the question of whether “an agency preparing an EIS may . . . ‘segment’ its analysis so
as to conceal the environmental significance of the project or projects.” Id. at 244
(citing Coal. on Sensible Transp. v. Dole, 826 F.2d 60, 68 (D.C. Cir. 1987)). However,
unlike in Hammond, there are no facts here that tend to show that Enbridge sought to
circumvent any applicable environmental regulations through creative project
management. Cf. Hammond, 370 F. Supp. 2d at 244. To the contrary, the evidence
indicates that Enbridge has gone out of its way to make sure it has addressed all of its
obligations, including complying with numerous state environmental regulations,
consulting with dozens of Native American tribes, obtaining rights of way from
thousands of individual landowners, conducting a public outreach and consultation
program, and preparing extensive mitigation plans. (See, e.g., Decl. of Jerrid Anderson,
ECF No. 27-1, ¶¶ 9, 15-17.) In the absence of any record evidence that Enbridge has at
any point attempted to hide the ball regarding the environmental impact of the FS
Pipeline, the Court believes the independent utility doctrine is inapposite.
46
Finally, the Court notes its general reluctance to conclude that federal action
with respect to a small portion of a pipeline or other “linear” project is sufficient to
federalize the entire project in the absence of any statute that permits or requires federal
oversight regarding such a project. Because every oil pipeline project of any reasonable
length is likely to pass over some segment of federal land or waters of the United
States, the practical effect of the result that Plaintiffs seek would be to transform NEPA
into a statute that requires federal oversight of all domestic oil pipelines (in the form of
an environmental review). Congress has not yet seen fit to enact an environmental
statute that federalizes the construction of private, domestic oil pipelines, and Plaintiffs
have thus far failed to convince this Court that they will be successful in their bid to
have NEPA construed in that expansive fashion.
2. Plaintiffs’ Claim That The Corps’s Verifications Violated The Terms Of NWP 12
In addition to their NEPA-based arguments, Plaintiffs also maintain that the
Corps’s decision to issue CWA verifications for the FS Pipeline water crossings was
arbitrary and capricious under the specific terms of NWP 12. Plaintiffs offer two
grounds for this contention. First, they contend that the Corps’s verifications were
arbitrary and capricious because they did not include a determination that the overall
“cumulative effect” of the FS Pipeline’s multiple water crossings on the environment
would be minimal. (Pl. Br. at 30.) Second, they assert that some of the water crossings
that the Corps verified violated a requirement of NWP 12 that “prohibits any NWP 12
activity ‘in the proximity of a public water supply intake.’” (Pl. Br. at 32 (quoting 77
Fed. Reg. at 10,283).)
47
Plaintiffs’ primary support for the first aspect of this APA claim comes from the
language of NWP 12, which provides:
In reviewing the PCN for the proposed activity, the district engineer will
determine whether the activity authorized by the NWP will result in more
than minimal individual or cumulative adverse environmental effects . . . .
For a linear project, this determination will include an evaluation of the
individual crossings to determine whether they individually satisfy the
terms and conditions of the NWP(s), as well as the cumulative effects
caused by all of the crossings authorized by NWP.
77 Fed. Reg. at 10,287 (emphasis added).
In Plaintiffs’ view, this language requires the Corps to evaluate the cumulative
impact of all crossings so verified—including the cumulative effect of the 1,950
crossings verified for the FS Pipeline in this case—and to include in its verification
letters a statement to that effect. (See Pl. Br. at 30-32.) But there is no statutory or
regulatory mandate that verification letters contain any such statement. And there is
also no reason to believe that the district engineers in the instant case failed to conduct
the required analysis of the FS Pipeline’s cumulative effects. NWP 12 provides that
“district engineers will evaluate the cumulative effects of those linear projects when
determining whether authorization by NWP is appropriate,” 77 Fed. Reg. at 10,260
(emphasis added), and that regulation also permits district engineers to evaluate
cumulative effects “on a regional basis” by considering “effects within a wetland,
stream reach, or coastal waterbody[.]” 77 Fed. Reg. at 10,261-64. Plaintiffs have done
nothing to establish that the district engineers actually failed to follow these
prescriptions, and the Court will not assume that the fact that the verification letters
lack a statement regarding cumulative effects means that the Corps failed to perform
such an analysis, particularly where NWP 12 directs the district engineers to do so.
48
The current record is also insufficient to sustain Plaintiffs’ claim that the Corps
violated NWP 12 because it verified pipeline construction in the proximity of a public
water supply in violation of General Condition 7 of NWP 12. Plaintiffs have provided a
single declaration from a resident of Missouri who maintains that the “intake pumps for
the [Missouri cities of] Adrian and Archie water supplies are located only a few miles
downstream” from where the FS Pipeline crosses the South Grand River, “which is the
sole source of water for these two cities.” (Decl. of Danny Ferguson, ECF No. 14-19, ¶
6.) This statement is unlikely to prevail over record evidence demonstrating that the
Corps specifically considered General Condition 7’s “proximity” requirement and, in its
expert determination, concluded that the relevant pipeline crossings were not in the
proximity of any such water supply intakes. (See Decl. of Lucius Duerksen, ECF No.
28-1, ¶ 19.) There is no hint of arbitrariness in this conclusion; moreover, the Corps’s
expert opinion in this regard is entitled to substantial deference. See, e.g., Colorado
Wild, Heartwood v. U.S. Forest Serv., 435 F.3d 1204, 1216 (10th Cir. 2006)
(“[D]eference to [an] agency is greatest when reviewing technical matters within its
area of expertise.” (citation omitted)). In any event, it is the Plaintiffs’ burden to
establish that they are likely to succeed on the merits of their claim that the FS Pipeline
is so close to water supplies that the crossings were improperly verified, and the scant
evidence that Plaintiffs have offered in this regard is manifestly insufficient.
B. Irreparable Harm
“[T]he basis of injunctive relief in the federal courts has always been irreparable
harm and inadequacy of legal remedies[.]” Sampson v. Murray, 415 U.S. 61, 88 (1974)
(internal quotation marks and citation omitted). Even under the sliding scale approach
49
that is utilized in this Circuit, Plaintiffs must demonstrate that they will suffer
irreparable harm absent an injunction in order to be eligible for injunctive relief. See
CFGC, 454 F.3d at 297 (“A movant’s failure to show any irreparable harm is . . .
grounds for refusing to issue a preliminary injunction, even if the other three factors
entering the calculus merit such relief.” (citation omitted)); see also GEO Specialty
Chem., Inc. v. Husisian, 923 F. Supp. 2d 143, 147 (D.D.C. 2013) (“[A] court may refuse
to issue an injunction without considering any other factors when irreparable harm is
not demonstrated.”). Accordingly, it is well established that “perhaps the single most
important prerequisite for the issuance of a preliminary injunction is a demonstration
that if it is not granted the applicant is likely to suffer irreparable harm before a
decision on the merits can be rendered.” 11A Charles Alan Wright, Arthur R. Miller &
Mary Kay Kane, Federal Practice and Procedure § 2948.1 (2d ed. 2013).
The concept of irreparable harm is not easily defined, but there is no doubt that
“[t]he irreparable injury requirement erects a very high bar for a movant.” Coalition for
Common Sense in Government Procurement v. United States, 576 F. Supp. 2d 162, 168
(D.D.C. 2008). “[S]everal well-known and indisputable principles” guide the inquiry
regarding irreparable injury. Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir.
1985). The party seeking injunctive relief must demonstrate that the claimed injury is
“both certain and great” and that the alleged harm is “actual and not theoretical.” Id.Moreover, because “the court must decide whether the harm will in fact occur,” a party
seeking injunctive relief must “substantiate the claim [of] irreparable injury” and “must
show that the alleged harm will directly result from the action which the movant seeks
to enjoin.” Id. Furthermore, because “[i]njunctive relief will not be granted against
50
something merely feared as liable to occur at some indefinite time[,]” the movant “must
show that [t]he injury complained of [is] of such imminence that there is a clear and
present need for equitable relief to prevent irreparable harm.” Id. (citations and internal
quotation marks omitted) (second alteration in original). And the certain and immediate
harm that a Plaintiff alleges must also be truly irreparable in the sense that it is “beyond
remediation.” CFGC, 454 F.3d at 297.
In the instant case, Plaintiffs point to two distinct types of harm that they claim
will occur if construction of the FS Pipeline is not halted during the pendency of their
legal challenges. First, Plaintiffs insist that the environment will be irreparably injured
because the ongoing pipeline construction involves clearing trees and plants to create a
right-of-way in a manner that, Plaintiffs argue, will both kill fish and wildlife and
endanger critical wetlands. (See Pl. Br. at 32-33.) Second, Plaintiffs insist that “[t]he
NEPA procedural violations in this case also constitute irreparable harm since they are
combined with a showing of environmental or aesthetic injury.” (Id. at 34.)
Neither of these contentions clears the “irreparable harm” hurdle. First of all,
notwithstanding Plaintiffs’ bald allegations of concrete injury to flora and fauna, the
record does not clearly establish that the FS Pipeline construction will have a
significant or substantial impact on the wildlife in the pipeline’s path. Enbridge has
purposely designed its construction plan so that 82% of the FS Pipeline will be “co-
located” (i.e., constructed along the same right of way) with Enbridge’s already existing
Spearhead Pipeline (Enbridge Br. at 42), a fact that Plaintiffs do not rebut. Enbridge
also submitted extensive mitigation plans along with its applications for the
51
verifications. 17 This suggests that the environmental impact of the pipeline construction
may be minimal, and the Corps has already verified that the seemingly troublesome
water crossings will have little or no ultimate environmental effect. That is not to say
that there will be no impact on the forest when trees that surround the pipeline project
fall. But Plaintiffs’ sound and fury regarding the land that must be cleared and the
wetlands that may be altered does not signify that any of these environmental effects
will be permanent or irreversible, as the preliminary injunction standard requires.
In short, with respect to their argument that the environment will be irreparably
harmed if the FS Pipeline project is permitted to proceed, Plaintiffs have offered little
proof of the type of permanent, devastating impact on the environment that has
convinced other courts to enjoin construction projects. In the assessments of myriad
agency experts, the impact of the FS Pipeline construction project on the surrounding
environment will be both minimal and fleeting. (See, e.g., Kansas City District Mem.
for Record, ECF No. 28-13, at 2 (“Avoidance, minimization, and compensatory
mitigation will be used . . . to ensure the project will have a minimal adverse effect on
the aquatic environment.”); Biological Opinion at i (concluding that “the construction,
operation and maintenance of the FS Pipeline may affect, but are not likely to adversely
affect” any of the 18 species the FWS examined).) Therefore, the Court concludes that
Plaintiffs have not established the requisite “great” harm.
It is also apparent that Plaintiffs have significantly overstated the certainty and
imminence of some of the injuries they predict. For example, Plaintiffs assert that
17
Enbridge’s plans include, among other things, strict time limits for instream excavation activities, use
of horizontal directional drills to avoid any impact to larger rivers and water bodies identified during
consultations with federal and state agencies, and a team of environmental inspectors responsible for
overseeing and implementing Enbridge’s environmental commitments. (See Decl. of Joseph McGaver,
ECF No. 27-2, ¶¶ 20-25.)
52
“[c]onstruction of the [FS Pipeline] will destroy forests and plants, [and] kill fish and
wildlife[.]” (Pl. Br. at 37.) But Plaintiffs provide no independent proof of this
allegation. And the FWS’s Biological Opinion and incidental take statement regarding
the American burying beetle, the decurrent false aster plant, and the Indiana bat says
only that “[s]ome [American burying beetles] may be disturbed or killed,” that the
decurrent false aster plant “may be affected,” and that “Indiana bats may be killed or
injured” during construction of the pipeline. (See Biological Opinion at 58, 59, 62
(emphasis added).) The FWS also significantly downplays the ultimate impact of these
possibilities on the ultimate survival of the species. (See id. at 62 (“[T]he FS Pipeline
will not jeopardize the continued existence the American burying beetle[.]”); 61 (the
effects on the decurrent false aster will be “small, temporary, and recovery will be
rapid”); 65 (any “anticipated take is not likely to result in jeopardy to the Indiana
bat”).)
In a similar vein, Plaintiffs appear to have exaggerated the extent and effect of
the pipeline right-of-way building process, which, according to Plaintiffs, includes
“pipeline and pump-related facility construction, grading, excavation, clearing trees,
vegetation and ground cover, dragging, chipping, burning, topsoil stripping, digging,
blasting, dewatering, water withdrawal and discharge, permanent road building, and
stream crossings.” (Pl. Br. at 32.) And even if such alteration of the environment
qualifies as harm, Plaintiffs have not established that it is irreparable, as the Federal
Agencies point out. (Def. Br. at 49 (“Plaintiffs have not shown that any disruption
caused by construction could not be restored if the Court ultimately required such
relief.”).) In this respect, Enbridge’s arguments about the efficacy of its “post-
53
construction restoration plan” remain unrebutted; Enbridge says its plan is designed “to
restore the temporary construction [right-of-way] to pre-existing conditions through soil
restoration management, seeding and plantings, consistent with the Project construction
plans and as required by state and federal authorizations.” (Defendant-Intervenor
Enbridge’s Opposition Brief (“Enbridge Br.”), ECF No. 27, at 5; see also id. at 42-43.)
What is more, Plaintiffs cannot deny that, in regard to the allegedly affected wetlands,
NWP 12 itself requires that the construction activity in question must not “result in the
loss of greater than ½-acre of waters of the United States,” 77 Fed. Reg. at 10,271, and
federal law expressly authorizes courts “to order restoration of jurisdictional wetlands
that have been unlawfully filled.” (Def. Br. at 49 (citing 33 U.S.C. § 1319(b).) This
reality calms the winds of irreparability that might otherwise have kept Plaintiffs’ lofty
claims of “irreparable harm” afloat.
Plaintiffs’ second argument—that a NEPA violation constitutes irreparable harm
in and of itself—does not advance the ball because it begs the very question at issue in
this action: whether the Federal Agencies’ failure to conduct an environmental review
prior to construction of the FS Pipeline violates NEPA. Although Plaintiffs are correct
that an established NEPA violation might rise to the level of irreparable harm when
coupled with sufficient evidence of environmental injury, see, e.g., Fund For Animals v.
Norton, 281 F. Supp. 2d 209, 220 (D.D.C. 2003); Sierra Club v. Marsh, 872 F.2d 497,
500 (1st Cir. 1989), Plaintiffs have thus far failed to demonstrate that they are likely to
succeed with their arguments that the Federal Agencies have violated any duty to
conduct an environmental review under NEPA, as discussed above. Surely, after
having missed the mark with respect to that prerequisite, Plaintiffs cannot expect that
54
the alleged but unproven procedural violation will carry the day on the issue of
irreparable harm.
Finally, a few words about Plaintiffs’ suggestion that operation of the FS
Pipeline risks a devastating oil spill that would be damaging to nearby communities,
and that that harm is sufficient to warrant an injunction. (See Pl. Br. at 37-38; see also
Pl. Reply at 3-4, 14-15, 37-38.) The Court acknowledges and accepts that some of the
people who live in areas near the pipeline project are sincerely worried about the harm
that an oil spill might cause. 18 As genuine as these concerns may be, Plaintiffs have not
shown that a damaging oil spill is likely to occur, and it is bedrock law that injunctions
“will not issue to prevent injuries neither extant nor presently threatened, but only
merely feared.” Comm. in Solidarity With People of El Salvador (CISPES) v. Sessions,
929 F.2d 742, 745-46 (D.C. Cir. 1991) (internal quotation marks and citations omitted).
In other words, the harms that an oil spill might potentially someday cause—however
fearsome—are not certain, and therefore are not sufficient to satisfy the “irreparable
harm” standard.
18
These fears are explained in detail in the declarations Plaintiffs have submitted. For example,
Declarant Danny Ferguson opines that “[t]he Flanagan South pipeline poses an unacceptable risk to the
municipal water supplies for the cities of Adrian and Archie, Missouri” because a spill from the
pipeline “would contaminate [the cities’] drinking water for years and threaten [the] community’s
survival.” (Decl. of Danny Ferguson, ECF No. 14-19, ¶¶ 6-7.) Declarant Mary Blackmore speculates
that “the construction of a toxic tar sands oil pipeline will contaminate” her family’s organic farm “due
to the operation of construction equipment, [and] spills and leaks from either the pipeline itself or from
the construction equipment[.]” (Decl. of Mary Blackmore, ECF. No. 14-20, ¶ 9.) And Declarant
Megan Corrigan states that “a spill in the wetlands of the Marais des Cygnes State Wildlife Area” in
Kansas “would be and environmental disaster” and that “the area would be ruined for birdwatchers like
me.” (Decl. of Megan Corrigan, ECF No. 14-17, ¶ 11.)
55
C. Balance Of Harms And Public Interest
The final two factors that a court in this circuit must consider when deciding
whether to grant a preliminary injunction are the balance of harms and the public
interest. See Arkansas Dairy Co-op Ass’n, Inc. v. U.S. Dep’t of Agric., 573 F.3d 815,
821 (D.C. Cir. 2009). Although allowing challenged conduct to persist certainly may
be harmful to a plaintiff and the public, harm can also flow from enjoining an activity,
and the public may benefit most from permitting it to continue. When “balanc[ing] the
competing claims of injury,” Winter, 555 U.S. 7, 24 (2008), the Court must “consider
the effect on each party of the granting or withholding of the requested relief.” Id.(citations omitted). Additionally, “courts of equity should [have] particular regard for
the public consequences in employing the extraordinary remedy of injunction.” Id.(internal quotation marks and citations omitted).
Plaintiffs maintain that the balance of harms clearly weighs in favor of granting
an injunction. In their view, the environmental harms they have identified far exceed
the minimal or non-existent harms that Enbridge and the Federal Agencies face. (Pl.
Reply Br. at 38.) Plaintiffs reiterate the damaging construction effects, the risks to
wildlife, and the potential for devastating oil spills that motivated their claims of
irreparable harm, and they maintain both that the Federal Agencies will suffer no injury
as a result of an injunction and that the harm Enbridge may suffer would be purely
economic—and largely “self-inflicted”—and thus is not an adequate basis for denying
injunctive relief. (Id. at 40.)
For its part, Enbridge has identified the harms to its business that might follow
from the issuance of an injunction, including up to $262 million in additional
56
construction costs if it is required to “de-mobilize” and then “re-mobilize” its
construction efforts. (Enbridge Br. at 46-47.) Enbridge notes that relationships with its
suppliers and customers, and by extension its business operations, would suffer as a
result of delays in construction. (Id. at 47.) Enbridge also asserts that delaying
pipeline construction could increase the environmental impact of the project rather than
prevent it, because current construction plans are tailored to the calendar (i.e., Enbridge
has coordinated construction with the planting and harvest schedules of farmers along
the pipeline’s path), and this timing was intentionally established to minimize
environmental effects. (Id. at 47-48.) In evaluating harms in the balance, Enbridge
also maintains that the injuries that would be inflicted on its bottom line as a result of
project delay are a near certainty, while the environmental harms that Plaintiffs identify
are speculative and thus should be discounted in the balancing test. (Id. at 43-45.)
The Federal Agencies’ arguments about the comparative harms stem primarily
from their assessment of the public’s interest. See Nken v. Holder, 556 U.S. 418, 435
(2009) (noting that the balance of harms and public interest factors “merge when the
Government is the opposing party”). In the Federal Agencies’ view, continued
construction of the FS pipeline will serve the public’s interest in several respects. First,
the public has an interest in the development of stable North American energy sources.
(Def. Br. at 54; Enbridge Br. at 49.) Second, the public has a strong interest in the jobs
and economic growth that construction and operation of the FS pipeline will create.
(Enbridge Br. at 49 (claiming that the FS pipeline will generate 3,000 jobs in the
immediate future).) Additionally, according to the Federal Agencies, the public has an
interest in avoiding the unnecessary costs that would be incurred if, as a result of an
57
injunction in this matter, the Corps was required to eschew the NWP 12 permitting
process and thereby made to devote scarce resources to conducting extensive
environmental reviews of projects that would otherwise conform to NWP 12 standards
and consequently have minimal environmental impact. (Def. Br. at 53-54.)
In the Court’s view, Enbridge and the Federal Agencies have the better of these
arguments. With respect to the balance of harms, the record as it currently stands
shows that Enbridge has committed major resources to the FS Pipeline project over the
last 18 months, including engaging in an intensive effort to comply with the myriad
state and federal environmental regulations that the pipeline project implicates. The
evidence of the time and effort that Enbridge has already put in to the project lends
credence to Enbridge’s argument that it will suffer harm if the pipeline is indefinitely
delayed. Plaintiffs, by contrast, have failed to demonstrate the harms that they allege
with specificity in regard to the FS Pipeline in particular, relying instead on general
harms they have identified by analogizing this project to other pipelines. (See Pl. Br. at
36-37.) While the Court is aware of the potential negative environmental consequences
that can accrue from the construction and operation of a large oil pipeline, it is also
hesitant to weigh these possibilities too heavily without more evidence linking them to
this particular pipeline project. Consequently, the Court finds that the balance of harms
tips in favor of Enbridge.
The Federal Agencies also are on firmer footing than Plaintiffs with respect to
the public interest factor. The Court deems particularly compelling the Federal
Agencies’ argument that the public has an interest in regulatory efficiency with respect
to projects that fall within the rubric of the general permitting system that the Clean
58
Water Act expressly authorizes. This system is carefully designed and administered to
minimize the costs of approving projects that the Corps has already determined will not
adversely impact the environment. The general permitting system also has the added
benefit of incentivizing project sponsors to conform their construction activities to
existing general permits, thereby further reducing the administrative burden while at the
same time decreasing the potential negative environmental consequences of those
projects. Overall, then, it is difficult for this Court to see how halting the FS Pipeline
project, and thereby casting doubt on the general permitting process, is in the public’s
interest.
Plaintiffs argue that, because federal agencies have a statutory duty to conduct
analyses that prevent substantive environmental harms, the public’s interest is clearly
aligned with enjoining harmful construction projects that proceed without such an
analysis, no matter the cost. (Pl. Br. at 41- 42 (quoting Colo. Wild Inc. v. U.S. Forest
Serv., 523 F. Supp. 2d 1213, 1223 (D. Colo. 2007) (“The public has an undeniable
interest in the Corps’ compliance with the CWA and NEPA’s environmental review
requirements and in the informed decision-making that the statutes are designed to
promote.”)).) This may be so, but this contention is circular where, as here, the
Federal Agencies’ statutory duty to conduct an environmental review under NEPA has
not been firmly established. Indeed, Plaintiffs’ argument that there is a significant
public interest in ensuring that federal agencies comply with their statutory duties (Pl.
Br. at 41) brings the Court right back to where it started: examining Plaintiffs’ claim
that the Federal Agencies here failed to comply with a NEPA duty to conduct an
environmental review of the FS Pipeline. Plaintiffs’ public interest arguments are thus
59
derivative of their merits arguments and depend in large part on the vitality of the latter.
This Court has already concluded that Plaintiffs are not likely to succeed on the merits
of their claim that the Federal Agencies violated a statutory duty, and the public interest
in the Federal Agencies’ compliance with their statutory duties must be weighed
accordingly. See, e.g., Serono Laboratories, Inc. v. Shalala, 158 F.3d 1313, 1326 (D.C.
Cir. 1998) (“The final preliminary injunction factor, the public interest, also offers
[plaintiff] no support because it is inextricably linked with the merits of the case. If, as
we have held, [plaintiff] is not likely to establish [a likelihood of success in the merits],
then public interest considerations weigh against an injunction.”); ViroPharma, Inc. v.
Hamburg, 898 F. Supp. 2d 1, 29-30 (D.D.C. 2012) (where plaintiff was unlikely to
establish that agency action did not comply with the law, the public interest factor
weighed against granting an injunction). Consequently, the Court finds that the public
interest factor also weighs against granting a preliminary injunction in this case.
IV. CONCLUSION
For the foregoing reasons, Plaintiffs have failed to carry their burden with
respect to any of the four preliminary injunction factors, and the Court concludes that
their motion for a preliminary injunction must be DENIED. A separate order will
follow.
DATE: November 13, 2013 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
60