Sierra Club v. United States Army Corps of Engineers
64 F. Supp. 3d 128
D.D.C.2014Background
- Enbridge, a private company, built the 589‑mile Flanagan South (FS) pipeline mostly on private land; federal law does not generally authorize federal oversight of domestic private pipeline construction.
- The Corps verified ~1,950 water crossings as fitting Nationwide Permit 12 (NWP 12); Corps and BIA issued easements and completed EAs/FONSIs for limited federal land segments. FWS issued a Biological Opinion and incidental take statement after consultation.
- Plaintiffs (Sierra Club & National Wildlife Federation) sued federal agencies alleging NEPA, CWA, and APA violations, arguing some federal action required an environmental review of the entire pipeline before construction.
- Procedurally: Court denied a preliminary injunction in an earlier opinion; defendants and intervenor moved to dismiss and moved for summary judgment; some ripeness arguments became moot after Corps/BIA issued easements; claim against PHMSA dismissed for failure to state a claim.
- Court framed the central question: whether any federal agency (alone or collectively) was required under NEPA to analyze environmental impacts of the entire FS Pipeline prior to construction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Corps' NWP 12 verifications are "major federal actions" triggering NEPA for entire pipeline | Corps verifications affected a substantial part of the pipeline and functioned like permits, so NEPA required a pipeline‑wide EIS | NWP verifications are permissive confirmations under a general permit regime (not individual permits); Corps lacked the discretion that triggers NEPA | Verifications are not "major federal actions" for NEPA; summary judgment for defendants on this claim |
| Whether FWS Biological Opinion/incidental take statement is a "major federal action" requiring pipeline‑wide NEPA | Biological Opinion effectively authorized or enabled construction and thus triggered NEPA | FWS opinion is advisory; acting agencies decide how to proceed and the BiOp was not the functional equivalent of a permit here | BiOp can sometimes be a major federal action, but on these facts it was peripheral and not the functional equivalent of a permit; summary judgment for defendants |
| Whether combined federal involvement ("federalization") required a lead agency and pipeline‑wide NEPA | Even if individual actions were limited, the aggregate federal actions federalized the project and required a lead NEPA review | Federal involvement was limited and did not amount to substantial control or responsibility over the pipeline as a whole | Combined actions did not federalize the pipeline; no duty to perform a comprehensive NEPA review or designate a lead agency |
| Whether Corps violated NWP 12 / CWA / APA by failing to analyze cumulative effects of all crossings pipeline‑wide | Corps must assess cumulative effects of all 1,950 crossings together and include that analysis in verifications | NWP 12 contemplates regional/watershed cumulative analyses; each district considered cumulative effects within its region and documented mitigation | Corps complied with NWP 12 via district‑level cumulative analyses supported by administrative record; no arbitrary or capricious action found |
Key Cases Cited
- Bennett v. Spear, 520 U.S. 154 (U.S. 1997) (Biological Opinions can, in some circumstances, have a coercive effect and function like final agency action)
- Ramsey v. Kantor, 96 F.3d 434 (9th Cir. 1996) (Biological Opinion and incidental take statement can be the functional equivalent of a permit)
- Wetlands Action Network v. U.S. Army Corps of Eng’rs, 222 F.3d 1105 (9th Cir. 2000) (distinguishing general permit verifications from individual permits for NEPA purposes)
- Citizens Against Rails‑to‑Trails v. Surface Transp. Bd., 267 F.3d 1144 (D.C. Cir. 2001) (the key NEPA touchstone is agency discretion)
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (U.S. 1983) (agency decisions reviewed for a rational connection between facts and choice; arbitrary and capricious standard)
- Reliable Automatic Sprinkler Co. v. Consumer Product Safety Comm’n, 324 F.3d 726 (D.C. Cir. 2003) (APA final agency action requirement is not jurisdictional)