828 F.3d 402
6th Cir.2016Background
- The U.S. Forest Service (USFS) issued a special-use right-of-way permit in 1953 (renewed in 1992) authorizing operation and maintenance of Line 5, an oil pipeline crossing federal forest land; the permit was amended in 2002 (name change) and 2011–12 (safety devices).
- Enbridge applied in 2012 to renew the special-use authorization; USFS conducted field studies, solicited public comment, consulted PHMSA about regulatory compliance, and proposed invoking CE-15 (a categorical exclusion).
- Sierra Club objected, arguing (1) no prior EA/EIS had ever been done because the original permit predated NEPA, (2) pipeline flow (scope/intensity) increased, and (3) the prior permit had expired, making the issuance a new authorization requiring an EA/EIS.
- USFS issued a Decision Memo concluding CE-15 applied and no "extraordinary circumstances" existed (including a biologist’s and botanist’s reports finding no effect on Kirtland’s warbler); USFS then reissued the permit in 2015.
- Sierra Club sued under the APA alleging NEPA violations; the district court granted summary judgment to USFS and Enbridge, and the Sixth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CE-15 applies to the 2015 reissuance | Sierra Club: CE-15 inapplicable because (a) pipeline flow increased (scope/intensity), and (b) prior permit expired so this is a new authorization | USFS/Enbridge: CE-15 covers issuance to replace existing or expired permits; right-of-way use unchanged and flow/pressure regulation is outside USFS authority | Held: CE-15 applies — scope/intensity unchanged and CE-15 explicitly covers expired permits; APA tolling also meant permit was not treated as expired |
| Whether USFS was required to prepare an EA or EIS despite CE-15 because of endangered species (Kirtland's warbler) | Sierra Club: presence of endangered species and potential impacts require EA/EIS | USFS: presence alone does not bar CE use; agency must assess cause–effect and degree, which it did via biological assessment concluding "no effect" | Held: USFS adequately evaluated resource conditions and relied on biologist’s report; no arbitrary action in concluding no extraordinary circumstance |
| Whether USFS had to analyze cumulative impacts under 40 C.F.R. § 1508.25 when invoking a CE | Sierra Club: §1508.25 requires assessment of cumulative impacts and other NEPA significance factors | USFS: categorical exclusion presumes no individual or cumulative significant effects; courts treat §1508.25 as inapplicable to CE determinations; USFS CEs and extraordinary-circumstance analysis suffice | Held: USFS not required to perform separate §1508.25 or §1508.27 significance-factor analysis beyond its CE regulatory process |
| Whether the USFS decision was arbitrary and capricious under the APA | Sierra Club: agency failed to take a "hard look" and ignored relevant evidence | USFS: followed public notice, considered comments, consulted PHMSA, prepared decision memo with supporting biological/botanical assessments | Held: Agency action was not arbitrary or capricious; decision-making process and factual record support CE use and reissuance |
Key Cases Cited
- Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644 (Supreme Court 2007) (arbitrary-and-capricious standards and consideration of relevant factors)
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (Supreme Court 1983) (standards for arbitrary or capricious agency action)
- Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752 (Supreme Court 2004) (NEPA’s procedural requirements and when EIS is required)
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (Supreme Court 1989) (NEPA’s "hard look" requirement)
- Ctr. for Biological Diversity v. Salazar, 706 F.3d 1085 (9th Cir. 2013) (CE decisions and limits on applying §1508.25 to CE analysis)
- Utah Envtl. Cong. v. Bosworth, 443 F.3d 732 (10th Cir. 2006) (USFS CE regs and extraordinary-circumstances analysis)