Sierra Club v. United States Army Corps of Engineers
990 F. Supp. 2d 9
D.D.C.2013Background
- Sierra Club and National Wildlife Federation sue multiple federal agencies for NEPA, CWA, and APA violations regarding the Flanagan South Pipeline and seek a preliminary injunction.
- FS Pipeline is a 589-mile tar sands oil pipeline from Pontiac, Illinois to Cushing, Oklahoma; Enbridge began construction August 14, 2013, expected completion summer 2014.
- Most of the pipeline lies on private land; approximately 27.28 miles cross federal lands/waters (13.68 miles waters, 12.3 miles Native American lands, 1.3 miles federal land) requiring federal action.
- Corps issued 1,950 verifications under Nationwide Permit 12 in 2012–2013; these verifications relied on mitigation plans and do not themselves constitute project-by-project NEPA review.
- Easements on federal/Indian lands are under consideration by the Corps and the BIA; Fish and Wildlife Service issued a Biological Opinion with an incidental take statement under ESA.
- PHMSA has not yet received an oil spill response plan from Enbridge, which the plaintiffs allege is a NEPA/APA issue; the pipeline is not yet operating.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does NWP 12 verification trigger NEPA. | Pl. contends verifications are major actions needing NEPA review. | Defs contend verifications under a general permit do not require NEPA review for a private, largely privately constructed project. | No NEPA duty triggered by verifications; verifications are not major federal actions. |
| Did FWS Biological Opinion require NEPA analysis. | Pl. argues ESA consultation effects necessitate NEPA review of the pipeline. | Defs deem § 7 consultation not a major NEPA action; opinion largely peripheral to project. | FWS opinion did not create a NEPA duty. |
| Does ongoing Corps/BIA easement review create a ripe NEPA obligation. | Pl. asserts easement review constitutes major federal action requiring NEPA. | Defs note review is ongoing but not ripe for NEPA relief; construction proceeded without final easements. | NEPA claim regarding easements not ripe; no injunction on this ground. |
| Did PHMSA oil spill plan trigger NEPA/APA duties. | Pl. claims PHMSA should perform NEPA review due to spill plan failure. | Defs argue plan is only required before operation, not construction; no NEPA duty there. | PHMSA claim unlikely to succeed; no NEPA duty shown. |
| Do the total federal actions require a comprehensive NEPA review of the entire FS Pipeline. | Pl. argues combined agency actions amount to major federal action requiring full NEPA analysis of the whole pipeline. | Defs rely on Winnebago-like standard; federal involvement is limited and does not federalize the entire pipeline. | No comprehensive NEPA obligation; project does not become a major federal action. |
Key Cases Cited
- Winnebago Tribe of Nebraska v. Ray, 621 F.2d 269 (8th Cir. 1980) (factors for scope of NEPA review when federal action is not precedent to entire project)
- Marsh v. Oregon NaturalRes. Def. Council, 490 U.S. 360 (S. Ct. 1989) (informational basis for NEPA analysis and project review importance)
- Sierra Club v. U.S. Dep’t of Agric., 777 F. Supp. 2d 44 (D.D.C. 2011) (NEPA review standards in agency determinations)
- Snoqualmie Valley Pres. Alliance v. U.S. Army Corps of Eng’rs, 683 F.3d 1155 (9th Cir. 2012) (purpose of general permits and NEPA implications)
- Ramsey v. Kantor, 96 F.3d 434 (9th Cir. 1996) (whether incidental take statements can be major federal action under NEPA)
- White Tanks Concerned Citizens, Inc. v. Strock, 563 F.3d 1033 (9th Cir. 2009) (limits of NEPA review in corridor-type projects under general permits)
- Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113 (9th Cir. 2005) (NEPA scope for corridor projects under general permits)
- Dania Beach, City of v. FAA, 485 F.3d 1181 (D.C. Cir. 2007) (major federal action versus NEPA review context)
- Sierra Club v. Bostick, 2013 WL 5539633 (10th Cir. 2013) (dissent on NEPA scope for NWP 12; not controlling authority)