Biological Opinions issued under Section 7 of the ESA

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.


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.


Feb 102015

Environmental groups file motion in 9th Cir. seeking stay of EPA approval

EPA should have consulted with the Fish and Wildlife Service before approving a new herbicide for use in the Midwest, environmental groups and a food safety group argue in a motion filed in the Ninth Circuit Court of Appeals (NRDC v. EPA, 14-73353).

News release (Earthjustice, Feb. 9)

The request for stay pending review was filed by the Center for Food Safety, National Family Farm Coalition, Pesticide Action Network North America, Beyond Pesticides, Environmental Working Group, and Center for Biological Diversity, and is supported by the Natural Resources Defense Council, which filed its own petition for review.

The herbicide, called Enlist Duo,"is specifically designed and registered to be used on 'Enlist' crops, which are new varieties of corn and soy that have been genetically engineered by Dow [AgroSciences] to withstand both 2,4-D and glyphosate," the petition says. "The technology is marketed as a chemical means to rid fields planted with Enlist corn and soy of unwanted weeds, without damaging the crop itself."

The groups argue that they are likely to win their case because EPA did not consult under the Endangered Species Act's Section 7 about the effects of Enlist Duo on the whooping crane and Indiana bat.

“EPA admits that its approval of a toxic pesticide cocktail including 2,4-D for widespread use may affect endangered species, including the whooping crane, one of the most endangered animals on earth,” said Earthjustice Managing Attorney Paul Achitoff. “We ask only that the court decide whether EPA has violated the law, as we believe it has before putting these imperiled birds at further risk.”

The challenge was filed in the Ninth Circuit in October.


Dow opposition to original motion for stay (1/23/15)

Dow AgroSciences news release (pre-motion) Company "announced quality standards for glyphosate trait stacking with Enlist. The company said it will allow Enlist to be stacked with advanced glyphosate traits only. It will not allow stacking with the first generation of the Roundup Ready® trait."

Jan 142015

Two conservation groups have signaled their intention to sue the Fish and Wildlife Service, National Park Service and Forest Service over approved “take” of 15 grizzly bears in two Biological Opinions. In a news release issued today, Earthjustice, the law firm representing Western Watersheds Project and Sierra Club, said: In decisions issued over the past […]

Jan 122015

#SupremeCourt rejects #California water users’ petition to review Ninth Circuit ESA decision order list #SCOTUS — Steve Davies (@ESWR_Update) January 12, 2015 Stories on #SCOTUS denial of water users’ petition: The Hill Reuters AP — Steve Davies (@ESWR_Update) January 12, 2015 Earlier Thursday, Jan. 8 – The justices will consider whether […]

Dec 182014

A district court judge has let stand NMFS’ Biological Opinion for the Atlantic sea scallop fishery, but remanded the matter to NMFS “for the limited purpose of addressing the deficiencies in the Incidental Take Statement” (Oceana v. Pritzker 08-1881 PLF, D.D.C). Oceana lost on most of its challenges. But District Judge Paul Friedman said the […]

Dec 102014

The Forest Service must consult with the Fish and Wildlife Service under Section 7 of the Endangered Species Act about “agreed operating procedures” on more than 100,000 acres of forest lands in Montana’s Swan Valley (Swan View Coalition v. Weber, 13-129-M-DWM, D. Mont.). U.S. District Judge Donald Molloy reaffirmed his Sept. 25 ruling requiring compliance […]

Nov 212014

Lawsuit Launched to Prevent Sea Turtle Deaths (CBD press release) ESA lawsuit takes on #USFWS, #NMFS over #USEPA cooling water intake rule #seaturtles CBD press release — Steve Davies (@ESWR_Update) November 21, 2014  

Jul 112014

Panel reverses district court In a significant victory for the Environmental Protection Agency, the D.C. Circuit Court of Appeals reversed U.S. District Judge Reggie B. Walton and found that EPA and the Army Corps of Engineers acted within their legal authority when they adopted an Enhanced Coordination Process to review mountaintop mining “valley fill” permits […]

Dec 112012
Sharp Park Section 9 case dismissed as moot

U.S. District Judge Susan Illston dismissed as moot a challenge to San Francisco’s management of a park occupied by California red-legged frogs and San Francisco garter snakes (Wild Equity Institute v. City and County of San Francisco,  11-958-SI, N.D. Cal.). Previously, there had been no Incidental Take Statement, but now, Illston said, there is: In […]

Oct 222012
BiOp, ROD on Wyoming-Oregon Ruby Pipeline tossed

(More links below) The Center for Biological Diversity — along with a passel of other petitioners — won a big decision in the Ninth Circuit today, as that court set aside a Biological Opinion and Record of Decision concerning the Ruby Pipeline, a conduit for natural gas that runs from Wyoming to Oregon (Center for […]