Sep 292015
 

The D.C. Circuit Court Appeals has upheld the federal government's approval of Enbridge Pipelines' Flanagan South pipeline, concluding that NEPA review of the pipeline's entire 593-mile length was not required (Sierra Club v. U.S. Army Corps of Engineers, 14-5205).

The 593-mile pipeline, which has been built, carries crude oil from Illinois to Oklahoma. Sierra Club contended that collectively, the environmental reviews required by various federal agencies should have triggered an analysis of the entire pipeline under the National Environmental Policy Act.

However, the court, while saying that "the agencies were required to conduct NEPA analysis of the foreseeable direct and indirect effects of those regulatory actions," concluded that they "were not obligated also to analyze the impact of
the construction and operation of the entire pipeline." It continued:

"We also reject Sierra Club’s Clean Water Act challenge to the Corps’s verifications of Flanagan South’s water crossings under Nationwide Permit 12 because the Corps was authorized to  conduct its review on a regional rather than nationwide basis, and the Corps’s District Managers adequately supported their verification decisions. Finally, we hold that the district court did not abuse its discretion in denying Sierra Club’s motion to supplement and amend its complaint, because the proposed new allegations would not have affected the dispositive legal analysis."

The circuit judges on the decision were Janice Rogers Brown, Nina Pillard and Robert Wilkins. Pillard wrote the opinion for the court; Brown concurred separately, opining that the majority had expended too much "angst" in reaching its decision.

"While the majority ultimately arrives at the same destination, its route is needlessly circuitous, creating the impression that Sierra Club’s challenges fail by a hairsbreadth rather than a hectare," she said.

Background

Sierra Club also claimed that one of the agencies, the United States Army Corps of Engineers, unlawfully authorized dredge and fill activities at the pipeline’s nearly two thousand minor water crossings by verifying that they fell within the authority of a general permit, Nationwide Permit 12, that the Corps had promulgated under the Clean Water Act. Sierra Club argued that the Corps impermissibly conducted its analyses of the water crossings’ cumulative impacts by region, rather than considering the pipeline as a whole, and that its conclusions that the crossings would have only minimal adverse environmental effects were inadequately supported and conclusory.

The Flanagan South oil pipeline pumps crude oil across 593 miles of American heartland from Illinois to Oklahoma. Almost all of the land over which it passes is privately owned. As soon as Enbridge Pipelines (FSP), LLC, (Enbridge) began building the pipeline in 2013, the Sierra Club, a national environmental nonprofit organization, sued the federal government seeking to set aside several federal agencies’ regulatory approvals relating to the pipeline and to enjoin the pipeline’s construction and operation in reliance on any such approvals.

On appeal, Sierra Club principally contends that the district court erred by failing to require the agencies to analyze and invite public comment on the environmental impact of the whole pipeline under NEPA, including the lengthy portions crossing private land and not otherwise subject to federal approvals. Sierra Club also presses its challenge to the Corps’s Clean Water Act verifications of the pipeline’s many water crossings. Sierra Club further contends that the district court reversibly erred by failing to allow the organization to supplement and amend its complaint. Sierra Club’s proposed new complaint added claims that the Corps and the Bureau of Indian Affairs within the U.S. Department of the Interior (the Bureau) had, while the litigation was pending, completed separate NEPA analyses relating to each of the easements the agencies had granted for the pipeline to cross federally controlled land, and that those analyses were insufficient.

 

Author info

[suffusion-the-author display='description']