*1 judgment, directly or NALT’s] reasonable EXXONMOBIL PIPELINE
indirectly any result material adverse Petitioner, COMPANY, any effect Pur Conservation poses.” subprovision suggests This v. any likely modifications will more be made OF DEPARTMENT UNITED STATES of, by, and BCR the benefit Part TRANSPORTATION; Pipeline nerships and rather than the homeowners Safety Adminis Materials Hazardous by-the NALT or for of conser the benefit tration; Pipeline Safety, of Office Re goals.4 vation spondents. Following persuasive reasoning, Belk’s No. 16-60448 Supreme mindful Court’s di- of Appeals, States Court United strictly con- rection be deductions Fifth Circuit. INDOPCO, strued, see at U.S. 1039, I S.Ct. must conclude that ease- August Filed comply ments issue case did 170(h)(2)(C) requirement with the parcel property
that a defined real
protected perpetuity. Part Because III. directly majority opinion
A.2.a
inexplicably principles, conflicts with these part. respectfully
I dissent from that
% foregoing in the as noted dissent
Except in vacating the footnote I concur judgment remanding
Tax Court’s majority purposes
for the stated
opinion. subdivision, swap gether typical appears It to me as a homesite residential initially-protected land five-acre tract wildlife they valuable for conserva- are would in instances be detrimental to the most purposes as land within heart tion purposes easement. Be- conservation 3,744-acre tract. grouped cause to- most the homesites
Reagan Simpson, Esq., William Yetter Coleman, L.L.P., Houston, TX, Richard Farrer, Houston, Attorney, TX, Bernard Harris, Faegre Daniels, Colin G. Baker L.L.P., Boulder, CO, Elling Hog- Robert foss, Atlanta, GA, Esq., for Petitioner. Dorsey, Catherine H. Matthew Miles *4 Collette, Department Justice, U.S. Civil Division, Section, Appellate Paul Maitland Geier, Esq., Counsel, Assistant General Department of Transportation, U.S. Wash- ington, DC, for Respondents. Christopher Jay Walker, Ohio State Law, University, College Columbus, OH, Amicus Curiae CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA. ELROD, SOUTHWICK,
Before and GRAVES, Judges. Circuit ELROD, JENNIFER WALKER Judge: Circuit Pipeline Company petitions Pipeline of a review Hazardous fol- Safety Materials Administration order lowing of several bar- release thousand pipeline rels of oil from a crude owned operated. specifically 1-4, 7, challenges agen- Items and 8 cy’s vacate Items 1-4 final order. We and 7 regard and affirm the with to Item 8 but with an instruction to reeval- remand penalty uate the for the associated basis with this violation. Background
I. long Pegasus Pipeline The 859-mile Patoka, oil from Illinois transports crude Nederland, In Texas. March Pegasus Pipeline ruptured, spilling several Mayflower, of oil near thousand barrels “addressing] seg- on each oper- the risks tor The owned Arkansas. 195.452(b)(1); pipelines. of its Id. Pipeline Company. In ment” by ExxonMobil ated ' spill, Pipeline wake of the oil plan An IMP must include a written Safety Administra- Materials Hazardous integrity periodic assessments conduct (the operating an adminis- tion “agency”), pipelines and to operator’s each Department of the United States tration any problematic address conditions discov- investiga- Transportation, conducted by those ered assessments. Id. final ultimately tion. The issued (f)(2)-(5). 195.452(b)(3), §§ in- order, violat- concluding that ExxonMobil require operators tegrity regulations regulations. The safety ed several assessment sched- “establish million penalty assessed a civil $2.6 pipeline segments for prioritizes ule that certain to take ordered This in- assessment.” Id. compliance those to ensure actions tegrity is informed assessment'schedule (cid:127) regulations. pipeline operator’s threat identification See process. and risk assessment id. Regulatory A. Framework 195.452(e), (j)(5). part pro- §§ As Act, Safety Pipeline U.S.C. cess, operators evaluating are tasked with Secretary seq., gives et *5 pipeline numerous risk factors each for regulatory enforce Transportation and alia, including, segment, inter result's to authority protect take actions to ment assessment; previous integrity pipe of the public proper to life against risks and material, manufacturing, type; and seam ty posed pipeline transportation by and 195.452(e). reg- § history. leak Id. The and pipeline provides The facilities. statute pipeline operator state ulations Secretary Transportation of “shall consider” factors establish- “must these prescribe standards for minimum safety assessment schedule. Id. for pipeline transportation pipeline fa and § on results of an Based 60102(a)(2). Pursuant cilities.” U.S.C. operator’s analysis, risk assessment promul to this has authority, pipeline prioritize seg- its operator must regulations establishing minimum gated five-year ments reassessment on inter- safety pts. See 49 C.F.R. 190- standards. (3). § 195.452Cj) Id. vals. i". pipeline regulations The integrity also Safety agen- Act Pipeline The by forth the cy’s management regulations set available methods which integrity re- periodic operator may to conduct the in- quire operator each create what tegrity regulations integrity management pro- is list known assessments. as an could, (“IMP”) gram pipelines op- methods available to all three assessment' (1) (2) high consequence hydro- a con- High inspections; affect area. erators: in-line areas, (3) testing;1 sequence populated pressure areas include external static unusually to corrosion areas that sensitive envi- direct assessment. Id. requirement damage, An 195.452(j)(5). ronmental navi- commercially additional of gable waterways. may apply pipelines C.F.R. A constructed a 196.452. pipe pre-1970 pipeline operator’s specific IMP is be known as type certain systems. its electric resistance purpose own welded low-frequency (“LF-ERW”) pipe type because this developing opera- is assist the IMP steel thereby identifying hydrostatic performed by subjecting operating pressure, 1. A is mum test pipeline. segments pressures exceed maxi- weakest its is pipe higher known to have In the operator event that a pipeline types comply fails pipe seam failure than other due federal Pipeline Safety or the integrity management manufacturing According to the Act defects. regulations, may compli- issue only regulations, if~and if—the LF-ERW ance orders and assess civil pipeline segment shown to “suscepti- be administrative penalties hearing. after notice failure,” longitudinal ble to the meth- 60118(b), §§ U.S.C. operator ods an seg- selects assess that capable assessing “must ment Application B. ExxonMobil’s detecting and of corrosion and Regulations deformation Id. . anomalies.” plan, pro- Under IMP ExxonMobil’s The pipeline integrity regulations are seam, analyzing susceptibil- cess for as to silent how must determine ity of on the pipe based LF-ERW whether LF-ERW pipe methodology Baker Report outlined longitudinal However, seam failure. in decision tree. ExxonMobil retained pub- commissioned and Dr, assist it in ap- Kiefner to services third-party report, lished a referred to plying pipeline integrity Report, here as the Baker which exten- guidance Report’s the Baker to its sively pipeline metallurgy. discusses Sec- plan. IMP has conducted a tion 4 of contains Baker periodic series of integrity assessments methodology for determining seam-failure Pegasus Pipeline, applying each time This susceptibility. methodology, provided by illustrat- Re- framework the Baker tree, considers, alia, port a decision Following ed each inter tree. assess- ment, characteristics, concluded and seam in-service that the Pe- gasus Pipeline segment hydrostatic failures, at issue in this test *6 cause case failures, susceptible longitudinal was not those and operating stress levels failure seam therefore and did not war- a given segment determine whether prioritization rant seg- over other LF-ERW fail- susceptible seam ments for reassessment. Report ure. As outlined the Baker deci- sion tree and to Dr. by as testified John F. ExxonMobil first Pegasus evaluated the Kiefner, one of the of the Baker authors Pipeline’s susceptibility to longitudinal Report, “seam related failures in-service seam failure in through early late 2004 or hydrostatic test breaks leaks and/or 2005. Its evaluation took into account not a pipeline themselves do indicate that pipeline’s manufacturing history, pipe ma- Rather, susceptible to seam failure.” ac- terials, operating and history, maintenance cording to the tree the Baker decision history, leak prior as well as the results of co-author, Report’s whenever seam-relat- pressure tests assessments. hydrostatic ed in-service failure or test Hydrostatic performed tests in 1969 and occurs, failure failures an- these should be 1991 revealed several seam failures and a alyzed primary for two causes would minor seam in-service leak occurred However, susceptibility indicate to seam failure: 1984.2 despite these seam fail- pressure-cycle ures, fatigue induced and selec- ExxonMobil determined tive seam corrosion. susceptible was not fail- seam gallons “weep/pin- 2. This repaired. minor leak is known as a of oil was before it only hole leak” and it released about two through early In Exxon- not late 2012 past ure because the were failures pressure-cycling inspection another of the by either induced Mobil conducted caused fatigue Pegasus Pipeline inspection or seam corrosion—the selective in-line in the Baker Re- factors enumerated tool. It two tool known as a TFI seam/crack through tree. port decision ran the tool the section line eventually the oil oc- release would where yearA after the initial evaluation shortly After the cur before release. hydro- conducted a pipeline, ExxonMobil inspection complete in-line while was Pegasus Pipeline. The test static inspection being from the the data was fail- eleven test resulted in seam-related Mayflower oc- processed, spill oil ures, replaced the failed and ExxonMobil though the third-party curred. Even ven- third-party expert hired a joints and inspection processing dor results was why metallurgy conduct analysis occurred, that a seam had aware joints analysis failed. did Because identify the vendor could hot a defect pressure-cy- not either reveal evidence point rupture. cor- cling fatigue induced selective seam rosion, again concluded once ExxonMobil Agency’s Findings C. The pipe segments that the LF-ERW were longitudinal susceptible to failure. seam release, Mayflower In the wake investigation conducted an again In evaluated determined that the cause the release longitu- Pegasus Pipeline's susceptibility to manufacturing was a defect in seam failure. dinal ExxonMobil’s evalua- Pegasus Pipeline’s pipe. LF-ERW pipeline’s, tion took into manu- account the agency concluded ExxonMobil’s IMP materials, operating facturing history, pipe properly for the plan had accounted history, history, leak and maintenance longitudinal risk of seam failure and integri- prior pressure results tests and May- contributing factor in the was assessments, ty as the well results Exx- flower release. found that analyses. subsequent metallurgical Once onMobil’s determination that the again, applying the Baker to longitudinal seam tree, was the line concluded that erroneous failure was that ExxonMo- not susceptible longitudinal properly pipeline’s bil failed assess the later, years again failure. Two *7 agency integrity. The also concluded that Pegasus suscep- Pipeline evaluated IMP plan was ExxonMobil’s deficient tibility seam failure and reached respects. of other number conclusion. same performed inspec- agency’s an in-line The final stated that order 195.452(e)(1) integrity tion in 2010 to of ExxonMobil violated section assess .the Pegasus failing Pipeline inspec- “by properly suscep- in-line consider two of appropriate. tibility pipe tools it had The to seam tion deemed ERW year, following again establishing integrity reevalu- when a continual as- on pipeline’s longitudinal fail- based all risk factors ated sessment schedule determination, taking Pegasus Pipeline.” on susceptibility agency ure The account all into of the same information as found that ExxonMobil’s conclusion that portion results of the 2010 the relevant before addition to the was inspection. susceptible con- to seam Again, in-line failure was “flawed” suscepti- “[gjiven history fail- cluded was not seam-related during both longitudinal pressure seam failure. in-service and ble ures
571 testing pipeline.” Specifically, II. Standard Review agency rejected position ExxonMobil’s The standard of apply review we Report permitted it to the Baker conclude agency’s to the final order prescribed by susceptible pipe that its was seam the Act, Administrative Procedure 5 prior failure because the seam failures did 60119(a)(3). U.S.C. 706. See 49 U.S.C. fatigue not exhibit preferen- evidence APA, Under the uphold an agency’s agency corrosion. tial seam The reasoned actions, findings, and conclusions unless we pipeline’s past seam failures— determine them to “arbitrary, capri including during eleven seam failures cious, discretion, an abuse or otherwise hydrostatic test—“strongly sug- with law.” 5 accordance U.S.C. gested the ERW § 706(2)(A); see also Allred’s Produce v. seam failure” and conclusion ExxonMobil’s Dep’t 743, (5th U.S. Agric., 178 F.3d 746 contrary to the was unreasonable. 1999). “Arbitrary capricious Cir. re view focuses on whether an articu ultimately The cited ExxonMobil lated a rational connection between the separate for nine violations of regulato- facts found and the decision made.” Pen ry requirements. According agency’s to the sion Corp. Guar. v. Wilson N. Benefit order, final violations 1 and 4 on are based Mem,’l 362, (5th Hosp., Jones 374 366 F.3d 195.452(e)(1), requires operators which 2004). Cir. must disregard any post “We factors, to “consider” includ- hoc [agency’s] rationalizations of the action ing type manufacturing informa- solely and evaluate it on the basis tion, among other factors. 2 is Violation agency’s at stated rationale the time of its (j)(3), on requires based subsection which Co., decision.” Luminant Generation operator to an schedule continual assess- (5th E.P.A., L.L.C. v. 925 F.3d of susceptible pipelines five-year ments 2012). party challenging agen Cir. The 3, 7, intervals. Violations cy’s action bears the burden establish (b)(5), on requires based subsection which determination was operators to implement establish and arbitrary capricious. La. Pub. Serv. management integrity program. Violation FERG, (5th Comm’n v. F.3d (h)(1), 5 is based on subsection which re- 2014). Cir. quires operators prompt take action through address conditions discovered III. Items 1-4 and 7 Finally, assessment. violation 6 is agen We first address whether (h)(2), requires based subsection which cy’s interpretation pipeline integrity promptly discover a condition Auer regulations be afforded defer should days within of an integrity assessment. ence. are unam Because the a civil penalty assessed in the biguous, that Auer deference we conclude $2,630,400. amount of also is- *8 inappropriate. is next address whether We compliance a it sued order which direct- arbitrary capri the acted in an and ed ExxonMobil to take a of actions number cious ExxonMobil to manner when it found by pipeline integrity regula- to abide the be in under violation tions. Items and of the final order. Because on appeal, challenges Now instruct regulations unambiguously the 1-4, 7, agency’s Items and 8 of the pipeline operators final certain “consider” factors, challenge order. ExxonMobil does not the risk the and because evidence 5, 6, or 9. violations cited Items that ExxonMobil did careful- demonstrates (iii)Leak factors, history, repair history that those conclude ly consider history.... agency’s pertaining protection decisions Items cathodic arbitrary of its final order"were 1-4 and 7 195.452(e)(1).If, "§ after consid- C.F.R. and capricious. factors, pipeline ering opera- these risk pipeline' segment tor that a determines A. pipe is suscepti- constructed LF-ERW failure, issue The central before is what is opera- us to longitudinal ble seam required pipeline operators by the term integrity tor conduct assessment must within assessing “consider” context “capable a method with 195.452(e)(1)- § integrity pipeline detecting integrity and of corrosion and management noted, regulations.3 As Id. anomalies.” deformation 195.452(e)(1) § regulations- requires § 195.452(j)(5). operators to
pipeline 195.452(e)(1) § argues that establish an assessment sched- regulation requires that process-based segments ule that for pipeline prioritizes pipeline operator to consider factors but n assessment.... An operator must base operator not to reach a does compel fac- assessment risk schedule all on specific outcome. ExxonMobil contends tors that reflect risk on conditions it all risk factors considered pipeline segment. The factors an 195.452(e)(1) § under determined— include, operator must but are consider Pega- on separate four occasions—that the to: not limited segments Pipeline’s sus LF-ERW (i) previous integrity Results susceptible longitudinal were assessment, type defect and size that the interpretation its failure. Under detect, can assessment method and de- 195.452(e)(1), § agency argues that rate; growth fect given history of seam failures to (ii) material, size, .pipe, it Pipe manufactur- LF-ERW was unreasonable information, coating type the above factors ing and condi- ExxonMobil consider tion, type;- and conclude and seam premised on parties agree that this is central and 7 are all whether ExxonMo- 3. Both parties agree appeal. also properly on Both risk issue bil "considered" the relevant 1, 2, Items and 3 of the 195.452(e)(1) the violations cited in determining § factors under premised on final order are find- longi- susceptible was not properly did not consid- that ExxonMobil tudinal seam failure. by er risk as directed factors 8, however, Item We conclude that disagree, parties howev- § er, agency’s finding premised on the that Exxon- 4, 7, 8 rise as whether Items properly factors Mobil did not consider -risk ; regarding conclusion our fall 195.452(e), by sup- but rather is directed 195.452(e)(1), conclude that Items We basis, by independent ported as we discuss interpretation on our and 7 rise and fall based below. Our conclusion consistent with the 195.452(e)(1) Item 8 does §of while not. position post-hearing ExxonMobil took in its Notably, explaining basis for Items briefing agency. though Even Exx- before the agency's explicitly final order relies argued onMobil before the that Items properly 1—failing Item consider all series of 7 were related violations 1-4 and 195.452(e)(1) factors under deter- they all relied on the same assertion because susceptibility. In mine seam failure other to con- failed words, the Items 4 and 7 basis would Pegasus Pipeline to be sider if were to find ExxonMo- undermined we ' failure, ExxonMobil did not *9 contend 195.452(e)(1) § bil did not violate and vacate 8 on this that Item was based assertion. Therefore, we conclude that 1-4 Item 1. Items
573
longitudinal
pret regulations
susceptible to
seam failure.
the same
in
manner as
interpreta
statutes,
its
looking
contends that
first to
regulation’s
The
195.452(e)(1)
plain
tion of
entitled to defer
language.” Anthony
States,
is
v. United
452,
Robbins,
(5th
519
374,
2008).
under Auer v.
U.S.
520
ence
F.3d
380
Cir.
Where
(1997).
905, 137 L.Ed.2d
the language
regulations
117 S.Ct.
79
is
unam
biguous,
beyond
plain
we do
look
grant
generally
will
Auer
We
wording of the regulation to determine its
agency’s interpretation
to an
deference
C.I.R.,
meaning.
326,
v.
290 F.3d
Copeland
ambiguous regulation.
Delek
own
Refin
(5th
2002).
332-33
Cir.
hold that
We
(5th
OSHRC,
170, 175
ing, Ltd. v.
845 F.3d
§ 195.452(e)(1) is textually unambiguous
2016) (“[W]e
Cir.
will
agency’s
defer'
no Auer
therefore
is war
deference
regu
interpretation
its own
reasonable
agency’s
ranted to
interpretation.
is
regulation
lations when the text
6f
195.452(e)(1)
Auer,
ambiguous.”); see
519
Section
plainly
also
U.S.
instructs
461,
in
operators
they
S.Ct. 905. “In situations which
117
“must consid-
meaning
language
er”
regulatory
is not
“all risk
factors
reflect the risk
doubt,
reviewing
from
court
pipeline segment.”
free
conditions on the
49
agency’s interpre
give effect
should
C.F.R.
En-
Oxford
defines,
reasonable,”
long
glish
is
it
Dictionary
tation so
as it
fol-
“consider”
“sensibly
purpose
conforms
contemplate mentally,
lows: “to
fix the
wording
regulations.”
v.
Martin
upon;
over,
to think
or re-
mind
meditate
144, 150-51,
OSHRC, 499
111 S.Ct.
on,
U.S.
flect
thought upon,
bestow attentive
(1991) (alterations
1171,
to,
Hearing Officer, 833 F.3d unambiguously requires factors certain Co., 2016); Roofing see also Diamond Cir. carefully undergo (5th OSHRC, 645, 649 Cir. Inc. v. 528 F.2d good decision-making process informed 1976); Christopher v. Beecham SmithKline faith, taking reasonably account all into 142, 155, Corp., 567 U.S. 132 S.Ct. reaching decision. relevant factors (2012). regulation 153 If the L.Ed.2d assertion, agency’s Contrary to the unambiguous, will we not defer compel a “consider” does certain term interpretation. v. agency’s Christensen outcome, but rather serves inform 576, 688, County, 529 Harris U.S. decision-making operator’s careful (2000); see S.Ct. L.Ed.2d Co., v. See J.H. Miles & Inc. process. Serv., Inc., v. Hannon Food also Moore (E.D. Brown, 910 Va. F.Supp. 489, 495-96 (5th 2003). Cir. 317 F.3d 1995) (explaining regulation that a federal
Therefore, to “con- fishing federal officials requiring whether to determine setting statutory term various factors sidér” interpretation fishing quota recommendations was is entitled “consider” dictate,” had deference, but rather officials must first wheth “strict determine 195.452(e)(1) preparing their rec- ambiguous. inter “some discretion” er “We *10 574
ommendation);
ExxonMobil reason-
Valley next
whether
see also Cent.
address
195.452(e)(l)’s
ably
instruction to
applied
Witherspoon,
Chrysler-Jeep
v.
456
all
in mak-
(E.D.
2006) “consider”
relevant risk factors
1160, 1173
Cal.
F.Supp.2d
pipeline susceptibility
its
determina-
(“Congress’s
of the term ‘consider’
a
use
discussed,
pipeline integrity
tion.4 As
an actor to
‘inves
requires
merely
statute
pipeline opera-
regulations plainly instruct
factor,
analyze’
specified
but
tigate and
consider” “all risk
they
tors that
“must
it.”).
necessarily
upon
act
factors that
the risk conditions
reflect
conclude
Because
we
pipeline segment”
creating
an as-
195.452(e)(l)’s
instruction
“consider”
49
C.F.R.
schedule.
sessment
unambiguously
factors
all relevant
text,
a
By its
plain
pipeline operator’s
to inform
care
serves
a
process-based requirement
that directs
decision-making process
ful and deliberate
pipeline operators
carefully
take into
compel
particular
than to
out
rather
a
account all
risk factors when
relevant
come,
agency’s interpretation
reaching
regulations
a
do not
decision.
Auer
regulation does
warrant
defer
outcome,
particular
a
but
mandate
rather
1,
Nelson,
Exelon
v.
ence. See
Wind L.L.C.
decision-making
prescribe
process
a
(5th
2014) (“[A]n
380, 399
Cir.
F.3d
766
undergo
good
pipeline operators must
it
agency is not entitled
deference when
Exx-
faith.
record demonstrates
interpretation
Regula
of the
up
offers
obligation
onMobil
its
“consid-
satisfied
already
tion that we
said
be unam
have
factors when it conducted
er” various risk
regulatory
biguously foreclosed
lengthy,
in-depth analysis
repeated,
text.”); Christensen,
588,
at
120
529 U.S.
by utilizing
of those risk
the avail-
factors
(“Auer
1655
is warranted
deference
S.Ct.
guidance of
industry-commissioned
able
regulation is
only
language
when
tree.
there-
Baker
We
ambiguous.”).
ultimately
fore
that ExxonMobil’s
conclude
agen-
actions were reasonable and
B.
cy’s
pertaining
decisions
Items
Owing
agen
arbitrary
of its final
were
no deference
7
order
capricious.
interpretation
regulation,
we
cy’s
218,
unambig
Corp.,
Ordinarily,
regulation
United States v.
533 U.S.
even if
Mead
250,
2164,
apply,
(2001)
deference does not
uous such
Auer
S.Ct.
L.Ed.2d
agency's rulings,
interpretations,
(Scalia, J.,
("[T]he
dissenting)
rule of Skid-
may
respect”
opinions
be “entitled
still
empty
and a
deference is
truism
more
134,
Co.,
under
v.
&
323 U.S.
Skidmore Swift
trifling
judge
A
statement
the obvious:
(1944), "but
65 S.Ct.
In its final resulted found that 195.452(e) test, § hydrostatic applied because ExxonMobil violated allegedly properly forth in analysis Report “failed set the Baker 195.303(d) safety presump 5. Section did not create a similar rebuttable pre-1970 ERW states that regarding pre-1970 pipe. "[a]ll tion LF-ERW In its pipe susceptible longitudinal ... is deemed and Decision on Petition for Re Final Order engineering analysis seam failures unless an consideration, agency specifically cites to 195.303(d). § shows otherwise.” 49 C.F.R. 195.303(d) support position § as for the regulation This 1998 in a was issued in sub pipe presumption there that all is a LF-ERW part pipeline safety regulations entitled longitudinal susceptible is seam failure. Testing” "Pressure distinct from and plainly presumption This be inaccurate promulgated prior pipeline integri was to the 195.303(d) and is there cause obsolete ty regulations Section issue here. agency appears fore not relevant here. The 195.303(d) required operators to conduct position appeal, abandoned con have hydrostatic pressure one-time of certain test tending apply presumption that it did not categories pipelines allowed pre-1970 pipe susceptibility for ERW based by they to elect December 1998 if wanted to 195.303(d). event, any §on In we conclude hydrosta use risk-based criteria rather than any part of cannot base tic test. That one-time election was unavail 195.303(d) finding on the now-obsolete pre-1970 pipe. able for LF-ERW Section 195.303(d) provide did not 195.303(d) any applica did not further have compelled that it was to deem with fair notice bility after December 1998 deadline. susceptible pipe longitudi promulgated its LF-ERW When the case, integrity regulations at issue in this nal seam failure. heavily ExxonMo- tree determine whether criticizes analysis bil’s reliance on embodied pipeline’s LF-ERW agen- Applying Report the Baker decision tree. The seam failure. the. Baker with, cy was in accordance be in violation of decision tree found.EÍxxonMobil *12 regulations, silent as to the it which while how that because determined to inappropriate determine seam failure it was ExxonMobil to operators to susceptibility, rely justify ignoring “[f]ol- instruct to on the decision tree industry practices.” 49 recognized exposed during testing. low seam The failures 195.452(b)(6). Report The Baker agency G.F.R. that the decision tree’s contends “recognized industry certainly reflects methodology is it because does inaccurate n only practices.” agency publish Not did the pipe’s “toughness.” not the address n incor- Report the to its website and Baker or agency pipe, pipe claims that brittle manual, it porate it into its enforcement toughness,- not with low will exhibit the in Report on the Baker also relied has cracking, fatigue of evidence which is same prior enforcement decisions.6 of point the end the There- decision tree. fore, found, the ExxonMobil failed correctly applying
To ensure that was fatigue “that the of to absence consider tree, Report the decision Baker of toughness a result was low of Dr. the services retained pipe.” Kiefner, Report’s the Baker co-author who developed methodology that largely unpersuaded by We are tree represents. the decision Because application criticism of of ExxonMobil’s pipeline did not evidence two reveal in process,set the Baker Report forth factors in the decision tree as enumerated the.agency’s interpreta- tree decision indicating susceptibility to seam failure— Report. Notably, tion the Baker fatigue namely, pressure-cycling induced Baker Report specifically op- itself directs or preferential seam corrosion—ExxonMo- rely apply on and the decision erators pipeline was suscepti bil concluded the in reaching susceptibili- tree a seam failure determining After ble failure.7 seam ty heading determination. “De- Under pipeline susceptible was Susceptibility,” termination of the Baker failure, longitudinal seam then Report states that results, pipeline’s these considered determining whether or history developing [t]he means type, seam schedules not the particular reassessment under of a is seam Undergoing this susceptible deliber failure are illustrated ate, tree].,,, process precisely considered is what [the [The decision decision 195.452(e) requires. one, by appropri- supplying allows tree] action, Kiefner, prior reviewing In one enforcement another 7. Dr. after ExxonMobil’s data, arguéd company inspection there was lack of activities and and evaluation industry guidance “correctly how determine testified that ExxonMobil followed to. guidance susceptibility pipe Report. of LF-ERW seam fail- described in Baker ures, Partners, Morgan Energy [analysis] In re Kinder This not have resulted in a would (June 26, 2006), finding segment 'suscepti- CPF 1-2004-5004 No. at 3. failed was responded methodology ble seam the context Part 195 failure " example regulations.' Notably, Báker is IMP embodied itself acceptable performing acknowledges supports means of a seam evidence “[t]he susceptibility analysis prior failure available assertion that seam fail- [ExxonMobil’s] Id, industry. fatigue.” to the ures evidence did exhibit given on a segment, utilizing data deter- ate and after factors if a seam-integrity mine industry-commissioned guid assessment available required based on the federal ance of the Baker Report tree integrity management regulations. with the assistance of Dr. Kiefner—a na expert tional Report unequivocally The Baker co directs who LF-ERW Report. pipeline operators apply the decision authored Baker ExxonMobil’s tree, explaining that it is application means “[t]he the decision tree in ac determining not the guidance whether cordance with the of the Baker particular seam Report purposeful, This itself. deliberate To discredit failure.” decision tree’s process decision-making is precisely what methodology, on- lan- relies *13 195.452(e)(1) § requires. agency’s in guage found Baker elsewhere the Re- finding that ExxonMobil “properly did not port states that that seam-related “[i]f simply consider”8 all relevant factors hydrostatic or in-service failure has test because ExxonMobil reached a different segment, segment on is occurred the the from determination the one the However, this ar- susceptible.” considered now, hindsight, proclaims unavailing. gument Notably, yet is another by reached is have the should contradicted the Baker that passage states arbitrary record and ca is therefore exist, fatigue-related no is “[i]f failures it pricious. Pension Guar. Corp., 374 Benefit certify to is pipeline that reasonable (“Arbitrary 366 capricious F.3d at re to seam failures in on an agency view whether focuses articu integrity manage- context the federal a, tjie lated rational connection between requirements.” ment sure what We made.”). facts found and importantly, opera- more pipeline we—or Mayflower oc The fact that the release conflicting guid- to make of tors—are curred, regrettable, does not neces place to more while ance. This causes us even , pro- on that to Report’s sarily the Baker clear mean ExxonMobil failed emphasis that the pipeline integrity regulations nouncement decision tree abide determining suscep- considering seam failure appropriate means risk factors. n (cid:127) (cid:127) tibility. did, operator experiences it that If then an leak on pipeline its a seam-related sum, In demonstrates record under system escape liability never could met its obligation under nullify integrity regulations, thus 195.452(e)(l)’s § instruction “consider” sfcrict- creating risk concluded various factors. ExxonMobil liability regime Congress has not au Pegasus Pipeline suscep- was not § 60101 generally only lengthy, See tible to seam failure after thorized. U.S.C. matter repeated, in-depth seq. The unfortunate consideration et fact assessments.”) prioritize recognized op- segment, has how 8. The Therefore, they added). say have (emphasis erators wide latitude in how will Exx- determining weigh risk how various factors ap "properly onMobil did not consider” segments prioritize pipeline for assessment. propriate begs question of factors risk Partners, L.P., Magellan consideration, See In re Midstream proper what would constitute 4-2006-5020; ("Section CPF No. at *7 proper To the extent contends that 195.452(e)(1) nine that must be lists factors outcome, particular mandates consideration ' establishing considered in a schedule but supported by regulation this is not text up operator determine what leaves industry guidance nor of the Balter considered, need factors to be how to other Report. assign pipe to each factor and scores n.15, 132 at 156 S.Ct. that, safety Christopher, 567 U.S. despite guide adherence 2156). Supreme oc Court has noted regulations, spills oil still do lines and cases, courts not accord penalty will “[i]n cur. agency’s to an inter substantial deference that ExxonMobil Because we conclude ambiguous of an rule circum pretation susceptibility properly considered the place did not stances where rule when LF-ERW seam failure or firm on notice that the con individual assess- establishing continual of a issue constituted a violation duct at on risk factors ment schedule all based n.15, Christopher, at 156 rule.” 567 U.S. by the Pegasus Pipeline, required (quoting R. Pierce Admin 132 S.Ct. 195.452(e)(1), va- language plain 6.11, (5th Treatise at 543 istrative Law 1 of final order. cate Item Sols., 2010)); Employer see also ed. premised on 2-A and 7 are Because Items (“The challenged F.3d at 488 statute finding ExxonMobil violated ‘give person action must 195.452(e)(1), vacate those we also ordinary intelligence a opportu reasonable Items. he
nity
prohibited,
so that
know what
C.
”)
accordingly.’
(quoting Grayned
may act
*14
104, 108,
City Rockford, 408
92
v.
U.S.
arguendo that we
of
assuming
Even
(1972)).
“In the
33 L.Ed.2d
S.Ct.
regulations
the
were to determine that
example,
of
the
absence
notice—for
where
are
governing
susceptibility
seam failure
regulation
sufficiently
is not
clear to warn
interpretation
ambiguous,
agency’s
the
expected
about
of it—an
party
a
what
warranting Auer
fall
of
would still
short
may
deprive party
proper
a
of
agency
indepen
additional
deference
liability.”
civil or criminal
ty by imposing
fair
reason that ExxonMobil lacked
dent
E.P.A.,
v.
General Elec. Co.
F.3d
regula
interpretation
notice of the
(D.C.
1995).
1328-29
Cir.
in
agency
tion that the
advances
this en
Sols.,
Employer
forcement action. See
analysis,
inquiry
this
the relevant
Under
(holding
“despite
F.3d at
agency’s interpretation
whether
to
degree
potentially
of deference
owed”
could
pipeline integrity regulations
agency,
inappro
Auer deference was
with
have been understood
“ascertainable
fair
priate
petitioner
where the
“lacked
by
time it
certainty”
ExxonMobil at the
notice” of the
of its
interpretation
allegedly
conduct that
ex
engaged
regulation).
Dia
posed it to this enforcement action.
Co.,
at 649. As
Roofing
mond
528 F.2d
no
that fair
We have warned
Circuit,
by
explained
the D.C.
requires
to
“state[d]
tice
have
regulated par-
meant
must ask whether the
certainty
with ascertainable
what is
received,
received,
no-
promulgated.”
ty
or should have
by the standards
has
[it]
Co.,
agency’s interpretation
Roofing
at 649.
tice
Diamond
528 F.2d
reading
way
by
agency regulations
This
most obvious
all:
requires
rule
If,
regula-
regulations.
by reviewing the
monetary penalties against
that “allow
public
...
tions
other
statements issued
give [a
those who violate them
must
regulated party acting
pro
by
agency,
party]
warning
fair
of the conduct it
a
identify,
to
requires,
provide
good
it must
faith would be able
hibits
certainty,”
stan-
“ascertainable
reasonably
culpability
clear
with
standard
expects
which
circumscribe the discretion of the enforc
dards with
conform,
(cited
agency has
parties to
then the
ing authority
agents.”
Id.
fairly
petitioner
agen-
notified
hold
otherwise
this enforcement action
cy’s interpretation.
would
surprise
constitute unfair
and de-
prive ExxonMobil of the fair notice to
Co.,
(citing
General Elec.
Because the Report explicitly themselves are Baker states that the de- silent as to how to are determine cision tree of determining is means” “[t]he seam susceptibility, operators failure importance are seam susceptibility. failure forced to an extra-regulatory find method cannot the word “the” overstated. be to make this determination. might ExxonMobil Even there be a conflict though to Baker Report. por- turned Given the between the decision tree and other agency’s numerous Report, endorsements of the tions of Baker ExxonMobil Report methodology, Baker justified' adhering ExxonMobil was still to the deci- entirely justified rely to in good faith determining sion tree as the means of Report on the Baker pipes conduct its seam whether its were Indeed, analysis. susceptibility to failure.9 agency's rep- 9. As to the applying analyzing susceptibility for contention seam-failure inappropriate is decision tree because it resented the decision tree. To the extent allegedly toughness does address the agency that the this is not the believes that pipe, Report the Baker LF- notes that all case, agency must with ascertain- "state pipe “possess regions ERW that are bondline action, certainty,” able before enforcement prone toughness to low and brittle-fracture applying inappropri- the decision tree is pipe prone behavior.’’ Because all LF-ERW is Co., Roofing ate for reason. this Diamond toughness cracking, to low and brittle those F.2d at 649. presumably process factors are built into the agency’s inter- action. any lacked no this Because Simply put, ExxonMobil specific is not deference agency pretation had a inter entitled Auer tice com- reasonably regulations departed and because ExxonMobil pretation Report any way the Baker in the Baker plied guidance from decision with found tree, tree, they could Report let alone notice that we conclude that decision capri- action strict subject arbitrary an enforcement acted in an tree. In the ly adhering to the decision that Exxon- manner when found cious 195.452(e)(1). Therefore, provid § of some violated absence instruction Mobil agency’s that the decision tree 1-4 industry ed to the vacate we Items determining seam longer no the means on alternate and additional final order must conclude the faitee we susceptibility, ground.11 rejection of ExxonMobil’s use agency’s IV. Item methodology violates tree’s decision Exx notice to principles of fair which challenging Items In addition 567 U.S.
onMobil entitled. Christopher, order, final agency’s and 7 (holding that Auer S.Ct. 2156 challenges also Item 8. Under to hold is “unwarranted” deference where Item found seriously otherwise “would undermine 195.452(b)(5), re had which violated provide principle agencies should reg operator to quires develop warning of parties ulated conduct ‘fair the. integrity management pro follow a written regulation] requires’”). prohibits or [a 195.452(b)(5). C.F.R. Because gram. 49 Thus, even if we were determine grounds Item 8 is the same based ambiguous to the violations, as the other be challenged precise methodology pipeline operator how ExxonMobil has articulated cause is sus to use determine whether arbitrary capri acted failure, ceptible finding that ExxonMobil cious manner notice, fair lacked which defer 195.452(b)(5) alters had violated under Item Sols., agency. Employer ence owed agency’s finding respect affirm inter 833 F.3d at new to this violation.
pretation of Baker order, final Item 8 Under clearly tree “does from au any not flow ExxonMobil’s, *16 agency writ- explained thority in existence this prior to action. for plan provides IMP use ten .,, Thus, inapplicable.” Awer Id.10 [is] and Risk Assessment Threat Identification (“TIARA”) manage- sum, program in the risk interpreta
In the agency’s process. program requires This Exx- pipeline integrity tion ment in manually information to does not Auer onMobil enter warrant deference because response questions. to One of fair certain lacked notice the inter ExxonMobil to “Has questions posed to was: pretation agency now seeks ExxonMobil enforce 10. If the agency prop- to seam failure then now there is er a believes methodology er its to determine seam failure consideration into overall to factor that entirely appropriate susceptibility, 195.452(e)(1) it would be . risk evaluation. agency regula- promulgate for to a new forward, moving following tion that end to follows the rule that 11. “This circuit alterna par- notice and from all comment concerned holdings precedent binding and not tive However, integrity regula- ties. Potts, United States v. obiter dictum.” currently only broadly tions as constituted (5th 2011). n. 3 Cir. F.3d to examine wheth- instruct (TFI UT) ILI tool crack or been expressly success- which relies on Item fully appropriate repairs run have finding 1 in that ExxonMobil committed a violation, been In scheduled?” ExxonMobil an- it is not apparent how Item 8 “yes” question though to this swered even violations, relates to the other contested no tool run.12 such had been ExxonMobil most importantly pertaining those to in explained hearing the administrative We therefore conclude “yes” the decision to answer was challenge ExxonMobil has its forfeited based on a belief that it would perform a to Item 8.13See United Scroggins, States v. TFI tool assessment in future. the near (5th 2010) (hold- 599 F.3d Cir. run, The tool delayed approx- however was that an argument not adequately imately delay, Exx- years. Despite two this presented on appeal by a party that fails never onMobil revisited its to the answer identify to legal the relevant standards question.- authority support to argument). its Order, In its Final found if Even to liberally we were construe argument, ExxonMobil’s its argument [b]y answering question in the affir- unpersuasive. appears ar- to mative, misrepresented [ExxonMobil] gue that though even it misrepresented the current status of verifica- it run ILI had tool assessment pipeline. tion did not answer which in program resulted in- TIARA accurately reflect the the tool fact that dicating, that there no were identified not no repairs had been run and had pipeline, threats it went above and been scheduled. issue then was beyond required it what was do and ran compounded tool when the run became any- state-of-the-art ILI tool seam/crack result, delayed years. As [Exx- two way 2012-2013, in any which not detect did proce- onMobil] failed adhere Therefore, defects the pipeline. Exxon- dures written. argues, accurately Mobil even if it had Ultimately, concluded that question required answered 195.452(b)(5) “by- ExxonMobil violated answer, ILI run an tool as a result its failing to procedures follow its written ILI tool run would have detected program by incorrectly the TIARA indi- any defects so should cating per- TFI tool run had been be found have been violation failing formed then correct it when However, regulations. found delayed.” the tool run was be violation § 195.452(b)(5) only primarily under Item 8 be- gen- ExxonMobil claims the most eral terms that Item 8 of the final cause did follow writ- along plan accurately ten IMP order. should vacated when it failed However, challenged *17 program other violations. Exx- the TIARA in the man- use directly not agement process, onMobil does its Exxon- just address because basis 7, 4 argument. for this Unlike Items and in appropriate Mobil did run the test. -violation, any regulatory namely 12. ExxonMobil does not cite to or contest 1 for Violation facts in alleged . these its of brief. ‘consider’ certain risk infor- Pegasus Pipe- mation and conclude that the brief, Notably, appears in its ExxonMobil line was to seam failure. [The premised concede that Item 8 on agency] expanded then four it to additional challenged Item 1 like other the violations (Nos, 7).” violations 2-4 and are, stating alleged agency] "[the that has one subject to violation separate affirm 2012 was Accordingly, we the $2,000,000 penalty maximum. Accord- finding ExxonMobil violated the However, 195.452(b)(5) ingly, agency for that the did not we conclude § under Item 8. below, in capricious in an manner explained arbitrary we remand act the reasons $2,000,000 penalty maxi- penalty applying the levied the agency the reevaluate mum.14 against ExxonMobil Item 8. under V. Penalties argument ExxonMobil’s second 8, we have affirmed pertains Item which challenges the ExxonMobil agency argues that the above. re penalties imposed by agency. We increasing penalty in assessed erred agency’s penalty an determination view it ground Item 8 on the had a for arbitrary capricious stan and under “contributory impact” Mayflower on the Invs., Bd. dard. Interamericas Ltd. v. amount, determining penalty In spill.15 Sys., the Fed. Reserve Governors of agency by statute to consid directed (5th 1997). First, 376, Cir. Exxon- F.3d nature, circumstances, following: er that the should be argues penalties Mobil violation, gravity including ad $1,000,000 Pipeline capped at under environment; impact on the de verse Second, argues Safety Act. culpability, any histo gree of the violator’s increasing the agency erred in violations, any on ry prior effect on basis penalty for Item 8 assessed business; ability doing and the continue “contributory impact” on the had good attempting to com faith violator’s Mayflower release. We discuss each 60122(b). § assessing In ply. 49 U.S.C. arguments below. these $783,300 agency for Item penalty First, argues that the total follow applied these factors and stated the penalty amount of the assessed final order: its $1,000,000 capped at under must be nature, Act, regard § to the circum- Pipeline Safety 60122. With U.S.C. violation, in- gravity In stances and disagree. Congress We raised cluding impact the environ- penalty civil adverse maximum ment, suggested levy “a related series viola- Violation could highest the violation pipeline safety regulations tions” of the had the level $1,000,000 $2,000,000. gravity because the violation was a caus- cap from See Accident, 60122(a). Mayflower al states factor 49 U.S.C. The statute which was the result of separate violation occurs each ERW “[a] addition, regard In to the failure. day the violation U.S.C. continues.” faith, 60122(a)(1) added). Therefore, degree culpability good (emphasis Report suggested that day [Exxon- Violation remaining each violation under degree culpá- Mobil] Items in the order after had elevated final occurred 15. ExxonMobil also argues argues that the 14. ExxonMobil also arbitrary capricious manner regard acted Items 1 and 2 on the erred with rejected argument however, that Items 1-4 when it grounds; va same because we have series of violations” and 7 “a related cated Items 1 we need not address this 60122(a)(1). However, under 49 U.S.C. argument to those violations. light vacating of our decision Items 1-4 and *18 question need not reach this because we remaining penalties the associated with the $2,000,000. are less than violations bility good and no faith prevented that credit was therefore would not have the oil warranted. spill. that the violation cit- contends agency contends that the fact that ed in Item 8 not did contribute the integrity ExxonMobil’s tool assessment if Mayflower release even it because had any' run not anomaly did detect at the site complied regulations—ie. with the even if pipeline’s “may have” been had treated the as because ExxonMobil used an inappropriate integrity failure and assessed the tool for that assessment. But agency capable a method assess- not finding did make a on this point,16 integrity 195.452(j)(5)— under Indeed, agency suggested in Item 1 of specific it would not have discovered the its final order that TFI tool seam/crack Pegasus Pipeline defect in the that caused appropriate was that assessment.17 the release. argu- ExxonMobil bases this Further, indicate that ei- ultimately ment the fact that when it inspection ther an in-line hydro- tool or a assessment, ran an such the defect not was appropriate test are for assessing static detected. pipeline seam integrity. LF-ERW See that agency We conclude erred in § 195.452(j)(5)(i)—(ii). C.F.R. agen- For the finding that highest Item 8 “had level cy to now come forward awith new rule gravity because the violation was a caus- particular that this inspection in-line tool is Mayflower al factor Accident.” appropriate not for assessing seam integri- true, above, it is While discussed that ty in these implicate circumstances would is culpable misrepresenting fair notice concerns. See Roofing Diamond performed, that a TFI tool had run been Co., 528 F.2d 649. support the record does not We conclude that the con- acted
finding that misrepresentation “was a trary to the evidence before it Mayflower causal factor in the Accident.” arbitrary capricious manner when it the agency When ran the TFI tool in misrepre- determined ExxonMobil’s 2012-2013 shortly Mayflower before the occurred, program sentation to the TIARA was a release the tool was unable Mayflower in the causal factor release. identify a Pegasus Pipeline defect in the Accordingly, we remand to the though even third-party vendor who appropriate reevaluate would be an analyzing was later the results from the what penalty light tool for Item 8 in Mayflower run knew that the this determi- release light It nation of our vacating occurred. follows that had Exxon- even manner, Mobil run TFI in timely tool associated with Items 1-4 violations Further, given results the run would not have of the final order. identified a defect have vacated Items 1-4 and we failed, denying In its order anomaly ExxonMobil’s Petition tected the fact that it Reconsideration, stated that negate was not detected does the contrib- [a]lthough anomaly previously utory impact no was detect- of the violations. tool, using ed at the failure location a TFI order, questions during pro- there were Under Item 1 of its final raised ceeding appropriateness using about the noted "[i]t until place, given types TFI tool the first finally using performed ILI [ExxonMobil] by hydrostatic of defects detected tests in tool, is,designed a TFI which seam/crack likely 2005-2006 would not be detected with detect certain EKW seam issues." a TFI tool.... While the Final did Order added). (emphasis testing hydrostatic decide if would have de- *19 584 careful, decision-making pro- a informed penalties the associated
likewise vacate undergo operators must cess that those items. with complied good with ExxonMobil faith. Compliance Order VI. this the requirement when determined Pegasus Pipeline was to agency’s the challenges ExxonMobil applying methodology the seam failure compliance compliance order. order tree set forth Baker the 1, 2, pertaining to Items contains direction n and, determination, considering the this 6, 5, agency’s of the final order. 8 and history, pipeline’s type, de- and leak generally that argues veloped integrity reassessment sched- its terms of the order exceed compliance § We therefore ule under authority. Pipeline Under agency’s agency’s final order with VACATE the Act, to is Safety authorized 7, respect to Items 1-4 which all and are a compliance” with directing “issue orders finding that ExxonMobil premised on a did promulgated by and regulation appropriate fac- properly consider the action orders must “state clearly such tors in reassess- developing its comply.” to 49 U.S.C. person take must 195.452(e)(1), ment schedule under and 60118(b). . penalties associated with VACATE 1 Items we have vacated Because Items 1-4 REMAND and 7. We order, simi final agency’s 2 of the reconsider instructions 2 of the larly Paragraphs 1 vacate penalty imposed light 8 in for Item our pur compliance also order. 8 the Item violation determination that paragraphs ports challenge Mayflower not .a causal factor Items compliance related order are release. However, 5, 6, and did not compli challenge provisions these JR., GRAVES, Circuit JAMES E. before proceedings in the order ance Judge, concurring part: To now the extent ExxonMobil agency. challenge provisions these agree seeks that Exxon- majority I with the order, those it has compliance agen forfeited notice Mobil lacked sufficient F.3d at arguments. Scroggins, See 49 C.F.R. cy’s interpretation 446-47; 195.452(e). v. Chavez- see also States I agree United Consequently, (5th 1997) Valencia, 127, 130 Cir. I also F.3d be vacated. Items should (the “consti raise a claim below re agree determination affirmed, for the right of that tutes forfeiture ... garding Item 8 be but should Therefore, appeal”). para purposes should be to the re remanded compliance pertaining graphs order penalty for the associat evaluate basis 5, 6 regulation to Items 8 remain effect. But violation. ed with reason, ambiguous deference Conclusion
VII. ground. It is appropi-iate well- agency’s interpretation unambiguous text settled that According given “control regulation regulations, own pipeline integrity must ling weight plainly unless it is vari- erroneous required “consider” regulation.” Bowles v. prioritize pipe- inconsistent with they ous factors when Co., Sand 325 U.S. Seminole Rock & process- lines for This is assessment. (1945). L.Ed. 1700 requirement does not S.Ct. based mandate outcome, the more broad all prescribes rather deference particular “[T]his but
585 when, here, regulation well-crafted, warranted however reasonable cannot complex highly ‘a technical concerns supplant agency’s interpretation of its regulatory program,’ in which identifi ambiguous own regulation, “unless classification relevant ‘crite cation plainly or inconsistent with the erroneous necessarily require significant expertise ria regulation,” Rock, which it is not. Seminole judgment and entails the exercise of 1215, 325 at 65 414, U.S. S.Ct. ” grounded policy concerns.’ Thomas Though the majority plain is correct that Shalala, 504, Univ. 512 v. U.S. Jefferson language 195.452(e) allows 2381, 512, 114 (1994) 405 129 L.Ed.2d S.Ct. operators' some regarding discretion how Mines, (quoting Pauley BethEnergy v. they choose to comply regulation, Inc., 680, 697, 2524, 501 111 U.S. S.Ct. 115 implausible it is would (1991)). 604 L.Ed.2d regulation enact a so would be tooth acknowledges majority reg practically unenforceable, less as ulatory program is highly complex here give regulated would parties pow ultimate and, minimum, at “lengthy, involves re er decide they compli whether áre analysis” peated, in-depth fac risk ance. Because agency’s interpretation by referencing tors Report’s Baker regulation its own ambiguous is not “conflicting” elaborate and In guidance. “plainly or inconsistent with erroneous concluding stead that the agency’s inter regulation,” I would.give See it.deference. 195.452(e) pretation of plainly is not er Rock, 414, 65 325 U.S. S.Ct. Seminole roneous, however, majority creates “consider,” own re which definition quires pipeline operators carefully “to un
dergo decision-making pro informed faith, good
cess in reasonably taking into
account all relevant in reach factors
ing majority decision.” states that its unambiguous reflects mean
definition the' regulation. See Christensen v. 576, 120 Cnty., Harris 529 U.S. S.Ct. BLOCK, Plaintiff-Appellant, Walter (2000) (“Auer L.Ed.2d deference is .v only language warranted when the regulation ambiguous.”) interpre TANENHAUS; Rutenberg; But its Sam Jim not compelled by regulation’s Company, tation is Times New York plain language, tersely which that a states Defendants-Appellees. “must,
pipeline operator “all risk consider” No. factors that reflect the risk conditions §" pipeline segment.” See Appeals, United Court States it compelled by any authority Nor is Circuit. Fifth See, majority e.g., cites. J.H. Miles & August FILED Co., Brown, v. F.Supp. Inc. (E.D. 1995) (stating Va. “consider” hardly
“can be read as a strict but dictate”
“[ijhis does not mean that the Council has ignore
carie blanche to relevant plainly added).
information”) (emphasis toMore point, majority’s interpretation,