Sierra Club, Inc. v. Bostick
539 F. App'x 885
10th Cir.2013Background
- TransCanada planned a 485-mile Gulf Coast Pipeline from Cushing, OK to Port Arthur, TX; it submitted pre‑construction notices and sought verification under Nationwide Permit 12 (NWP 12).
- In Feb 2012 the U.S. Army Corps of Engineers reissued NWP 12 and, in June–July 2012, three Corps districts (Galveston, Fort Worth, Tulsa) verified that the pipeline could proceed under NWP 12 (2,227 water‑crossing approvals).
- Sierra Club, Clean Energy Future Oklahoma, and East Texas Sub Regional Planning Commission sued the Corps under NEPA, the Clean Water Act, and the APA, seeking a preliminary injunction to stop construction pending litigation.
- The district court denied the preliminary injunction, finding appellants unlikely to prevail on the merits and that the balance of harms favored appellees (TransCanada had spent hundreds of millions and delay would cost hundreds of thousands per day; Corps estimated <1 acre permanent waters loss).
- The Tenth Circuit affirmed, reviewing for abuse of discretion and sustaining the district court’s balance‑of‑harms finding as within the zone of permissible choices.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a preliminary injunction was warranted | Appellants argued injunction needed because Corps violated NEPA, CWA, APA in reissuing/using NWP 12 for the pipeline | Corps and intervenors stressed economic harm from delays, Corps compliance with NWP 12 verifications | Denied: court affirmed district court’s denial because appellants failed to show balance of harms favored injunction |
| Whether Corps had to prepare EA/EIS under NEPA for the pipeline | Appellants: Corps’ cumulative role in 2,227 crossings made the pipeline a major federal action requiring EA/EIS | Corps: NEPA obligations satisfied at NWP promulgation stage; verifications are project‑level, streamlined actions | Majority did not decide merits; dissent thought appellants likely to succeed on NEPA claim and would remand |
| Whether Corps adequately considered cumulative impacts under NWP 12 | Appellants: verifications across three districts failed to assess cumulative effects of all crossings as NWP 12 requires | Corps: verification letters invoked the legal standard and concluded conditions satisfied; post‑hoc affidavits show inter‑district coordination | Majority avoided merits; dissent found record deficient and likely arbitrary and capricious for lack of reasoned cumulative‑impact analysis |
| Whether TransCanada’s financial harm should be discounted as "self‑inflicted" | Appellants: TransCanada incurred contracts and mobilization before permits, so economic harm is self‑inflicted and should be minimized | Appellees: expenditures and daily delay costs are real harms; no record of Corps predetermination to justify ignoring those harms | Tenth Circuit: financial harm may be weighed; no basis to treat TransCanada’s harm as self‑inflicted here; district court’s balancing was not an abuse of discretion |
Key Cases Cited
- Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) (four‑factor test for preliminary injunction; environmental plaintiffs must show likelihood of success and balance of harms)
- Davis v. Mineta, 302 F.3d 1104 (10th Cir. 2002) (discussing when economic harms are "self‑inflicted" and may be discounted in balancing)
- Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531 (1987) (financial harm can outweigh environmental harm in injunction balancing)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (arbitrary and capricious review requires reasoned explanation by agency)
- Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402 (1971) (agency actions must be judged on the administrative record; post‑hoc rationalizations disallowed)
- Olenhouse v. Commodity Credit Corp., 42 F.3d 1560 (10th Cir. 1994) (agency action must be sustained on the grounds articulated in the record)