Sierra Club, Inc. v. Bostick
787 F.3d 1043
10th Cir.
2015
Check Treatment
Docket

SIERRA CLUB, INC., Clean Energy Future Oklahoma, East Texas Sub Regional Planning Commission, Plaintiffs-Appellants, v. Lieutenant General Thomas P. BOSTICK, in his official capacity as Commanding General and Chief of Engineers of the U.S. Army Corps of Engineers; Major General Michael J. Walsh, in his official capacity as U.S. Army Commanding General for Civil and Emergency Operations; Colonel Richard Pratt, in his official capacity as Tulsa District Commander of U.S. Army Corps of Engineers; Colonel Richard Parnell, in his official capacity as Galveston District Engineer of the U.S. Army Corps of Engineers; United States Army Corps of Engineers, Defendants-Appellees, and TransCanada Keystone Pipeline LP, a Delaware limited partnership; TransCanada Corporation, a Canadian public company; Interstate Natural Gas Association, American Gas Association, Association of Oil Pipe Lines, American Petroleum Institute, Utility Water Act Group, Intervenors-Appellees.

No. 14-6099.

United States Court of Appeals, Tenth Circuit.

May 29, 2015.

787 F.3d 1043

might be excused, at least in extreme circumstances where negligent EEOC conduct would mislead a reasonable layperson into thinking he need not verify. Price apparently allows such a result. See (holding requirement non-jurisdictional and remanding for “a possible EEOC waiver of that requirement“); see also (“A Title VII complainant is not charged with the commission‘s failure to perform its statutory duties.” (internal quotation marks omitted)); (“[A]ny deficiency in the EEOC‘s performance of its duties should not adversely affect a plaintiff‘s right to sue.“).9

We need not decide the scope or contours of a waiver rule here, particularly because the district court may not even need to reach the question on remand if it concludes that, assuming an EEOC waiver is possible, no such waiver occurred.

III. Conclusion

Because Title VII‘s verification requirement is not jurisdictional, we REVERSE and REMAND this case for the district court to determine whether the verification requirement was waived here.

Douglas P. Hayes, Sierra Club, Boulder, CO (Eric E. Huber, Sierra Club, Boulder, CO, with him on the briefs), for Appellants.

David C. Shilton, U.S. Department of Justice, Washington, D.C. (Sam Hirsch, Acting Assistant Attorney General, Michele Walter, Maureen E. Rudolph, and Ty Bair, U.S. Department of Justice, Washington, D.C.; and Ann P. Navaro, Assistant Chief Counsel and Milton S. Boyd, Assistant Counsel, U.S. Army Corps of Engineers, with him on the brief), for Appellees.

Peter R. Steenland, Sidley Austin LLP, Washington, D.C. (Lauren C. Freeman, Lisa E. Jones, Sidley Austin LLP, Washington, D.C.; and Deidre G. Duncan, Andrew J. Turner, and Karma B. Brown, Hunton & Williams LLP, Washington, D.C., with him on the brief), for Intervenors-Appellees.

Before BACHARACH, Circuit Judge, BALDOCK, Senior Circuit Judge, and McHUGH, Circuit Judge.

BACHARACH, Circuit Judge.

This case involves the authority of the U.S. Army Corps of Engineers to issue nationwide permits under § 404(e) of the Clean Water Act. These permits authorize activities involving discharge of dredged or fill material in U.S. waters and wetlands. See 33 U.S.C. § 1344(e) (2012). Exercising this permitting authority, the Corps issued Nationwide Permit 12, which allows anyone to construct utility lines in U.S. waters “provided the activity does not result in the loss of greater than 1/2 acre of [U.S. waters] for each single and complete project.” Reissuance of Nationwide Permits, 77 Fed.Reg. 10,184, 10,271 (Feb. 21, 2012).2

TransCanada Corporation proposed to rely on the nationwide permit to build an oil pipeline, the Gulf Coast Pipeline,3 which would run approximately 485 miles and cross over 2,000 waterways. The Corps issued letters verifying that Nationwide Permit 12 would cover the proposed construction. Shortly thereafter, TransCanada began constructing the pipeline, which has since been completed and is currently transporting oil.

Three environmental groups (Sierra Club, Inc.; Clean Energy Future Oklahoma; and East Texas Sub Regional Planning Commission) have challenged the validity of the nationwide permit and verification letters. The district court rejected these challenges and entered judgment for the defendants.

In this appeal, we address and reject three sets of claims:

  • Claims Involving the National Environmental Policy Act (NEPA): The environmental groups argue that the Corps violated NEPA by issuing the nationwide permit without considering the risk of oil spills and the cumulative environmental impacts of pipelines. These arguments are waived.

    The environmental groups also argue that the Corps issued the verification letters without conducting a NEPA analysis. We conclude that this analysis was not necessary at the verification stage.

  • Claims Involving the Clean Water Act: According to the environmental groups, the nationwide permit violates the Clean Water Act by (1) effectively authorizing activities with more-than-minimal environmental impacts and (2) unlawfully deferring a portion of the minimal-impacts analysis to project-level personnel. We reject both arguments. The environmental groups have not shown that the permit authorizes activities with more-than-minimal impacts, and the Corps has permissibly interpreted the statute to allow partial deferral of its minimal-impacts analysis.
  • Claims Involving the Nationwide Permit 12: Finally, the environmental groups contend that the Corps incorrectly verified compliance with the nationwide permit without analyzing the cumulative effects or documenting the analysis of cumulative effects. We reject this contention. Corps officials did not need to include a cumulative-effects analysis in the letters, and the record shows that officials conducted the necessary analysis.

Based on our conclusions, we affirm the entry of judgment in favor of the defendants.4

I. Standard of Review

We review the challenges under the Administrative Procedure Act (APA). See 5 U.S.C. §§ 701-706 (2012). In applying this standard, we will set aside agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (2012).

Review under the APA is narrow: “[T]he agency need only demonstrate that it considered relevant factors and alternatives ... and that the choice it made was reasonable based on that consideration.” .

II. NEPA

The environmental groups make two arguments to challenge the district court‘s disposition of the NEPA claims:

  1. The Corps’ environmental analysis is deficient because the agency failed to consider the risk of oil spills and the cumulative impacts of pipelines.
  2. The Corps failed to conduct an environmental analysis when verifying that the pipeline was permissible under the nationwide permit.

We reject both arguments. The environmental groups waived their claims involving failure to address oil spills and cumulative impacts, and the Corps was not required to conduct an environmental analysis when verifying compliance with the nationwide permit.

A. Requirements of NEPA

NEPA requires an agency to take a “hard look” at the environmental impacts of proposed actions. . In taking this “hard look,” the agency must take appropriate steps: If the venture involves a “major Federal action” that would “significantly affect[] the quality of the human environment,” the agency must prepare a detailed environmental impact statement. 42 U.S.C. § 4332(2)(C) (2012).

But if the future effects are unclear, the agency can prepare an environmental assessment instead of a more detailed environmental impact statement. . If the environmental assessment shows that the impact would be insignificant, the agency need not provide any further environmental report.5 Id. at 757-58.

Notes

1
Pursuant to Fed. R.App. P. 43(c)(2) Colonel Pratt is substituted for Colonel Teague and Colonel Parnell is substituted for Colonel Sallesse.
2
The Corps has defined the term “single and complete project” to mean “the total project proposed or accomplished by one owner/developer or partnership or other association of owners/developers.” 33 C.F.R. § 330.2(i) (2012). For linear projects like utility lines, the Corps considers each crossing of a waterway to be a “single and complete project” as long as these crossings are “separate and distant.” Id.
3
The Gulf Coast Pipeline is the southern segment of a larger pipeline project called the “Keystone XL Pipeline.”
4
The intervenors have raised prudential mootness. Prudential mootness concerns a court‘s discretion, not its power, to grant relief. . We elect not to address prudential mootness, as we conclude the claims fail on other grounds. See (“As for prudential mootness, it is within the court‘s discretion to decline to address an issue on prudential mootness grounds.“).
5
Instead, the agency is to make a “finding of no significant impact.” .</
9
In the related context of Title VII‘s timely filing requirement, “equitable tolling may be appropriate where a plaintiff has been lulled into inaction by ... state or federal agencies.” (internal quotation marks omitted). Of course, the timely filing requirement, no less than the verification requirement, works to protect employers. See (noting that Title VII‘s “limitations periods ... protect employers from the burden of defending claims arising from employment decisions that are long past“).
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