Sierra Club, Inc. v. Bostick
787 F.3d 1043
| 10th Cir. | 2015Background
- The U.S. Army Corps of Engineers reissued Nationwide Permit 12 (NWP 12), authorizing discharge of dredged or fill material for construction, maintenance, and repair of utility lines so long as impacts are minimal (e.g., loss ≤ 1/2 acre per single and complete project).
- TransCanada obtained Corps verification that the Gulf Coast segment of the Keystone XL pipeline could proceed under NWP 12, built the ~485-mile pipeline crossing >2,000 waterways, and now operates it.
- Three environmental groups (Sierra Club; Clean Energy Future Oklahoma; East Texas Sub Regional Planning Commission) challenged the permit and the verification letters under NEPA and the Clean Water Act (CWA § 404(e)); the district court ruled for defendants and appeal followed.
- Plaintiffs argued (1) Corps violated NEPA by failing to consider oil-spill risks and cumulative pipeline impacts and by not performing NEPA at the verification stage; (2) NWP 12 violates CWA § 404(e) because it permits more-than-minimal impacts and impermissibly defers the minimal-impact determination to project-level actors; (3) verification letters lacked required cumulative-effects analysis/documentation.
- The Tenth Circuit affirmed: plaintiffs’ NEPA substantive claims about oil spills and cumulative impacts were waived for failure to raise them in the public comment period; NEPA review was not required at the verification stage; Corps reasonably concluded NWP 12 authorizes only minimal impacts and permissibly used project-level safeguards; verification letters need not include full cumulative-analysis text because the record contains the analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Corps violated NEPA when reissuing NWP 12 by failing to consider oil-spill risk | Corps should have considered oil-spill risks arising from pipelines in its EA | Corps focused correctly on impacts of authorized activities (dredge/fill for construction/repair); operational risks fall to other agencies; issue was not raised in comments | Waived for lack of administrative comment; even if known, not an obvious deficiency requiring exhaustion avoidance |
| Whether Corps had to perform NEPA at the verification stage for TransCanada pipeline | Verification letters required project-level NEPA because verifications were essential federal action enabling the pipeline | Verifications merely confirm applicability of an already NEPA-reviewed nationwide permit; not a separate major federal action requiring new NEPA | No NEPA required at verification stage; verifications are not major federal actions warranting new NEPA review |
| Whether NWP 12 violates CWA § 404(e) by authorizing more-than-minimal cumulative impacts for linear/large projects | NWP 12 allows aggregate/linear projects (e.g., long pipelines) to evade cumulative-impact limits and exceed minimal impacts | Corps reasonably applied the "separate and distant" single-and-complete-project test per longstanding practice and calculated impacts per crossing; Corps technical judgment is entitled to deference | Held that plaintiffs did not show the Corps’ minimal-impact finding lacked a substantial factual basis; permit OK as applied here |
| Whether Corps unlawfully deferred minimal-impact determinations to project-level personnel and failed to document cumulative analysis in verifications | Corps unlawfully delegated core statutory duty and verification letters lack required cumulative-impact documentation | Corps permissibly used project-level review (district engineers) as reasonable safeguard; cumulative analysis exists in administrative record even if not restated in the letters | Deference to Corps interpretation under Chevron; partial deferral permissible; verification letters supported by the record — not arbitrary or capricious |
Key Cases Cited
- Mt. Evans Co. v. Madigan, 14 F.3d 1444 (10th Cir. 1994) (APA review requires agency to consider relevant factors and alternatives)
- Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752 (2004) (NEPA exhaustion: commenters must raise issues during public comment unless flaw is obvious)
- Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87 (1983) (deference to agency technical judgments)
- Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984) (two-step test for agency statutory interpretation)
- Snoqualmie Valley Pres. Alliance v. U.S. Army Corps of Eng’rs, 683 F.3d 1155 (9th Cir. 2012) (verifications under nationwide permits do not require a full NEPA analysis at verification)
- Ohio Valley Envtl. Coal. v. Bulen, 429 F.3d 493 (4th Cir. 2005) (practical difficulties of ex ante minimal-impact predictions for nationwide permits; use of project-level review upheld)
- Sierra Club v. Marsh, 769 F.2d 868 (1st Cir. 1985) (NEPA requires consideration of nonaquatic effects reasonably foreseeable from permit-authorized projects)