D.C. Circuit

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.


Mar 062015

The D.C. Circuit Court of Appeals has denied a petition from Center for Sustainable Economy (CSE) that challenged the Bureau of Ocean Energy Management's 2012-17 Outer Continental Shelf leasing program on the grounds that it violated both the Outer Continental Shelf Lands Act (OCSLA) and NEPA (Center for Sustainable Economy v. Jewell, 12-1431, 3/6/15). (CSE opening brief)

CSE has standing, the court said, but concluded that its NEPA claims were unripe and that CSE had forfeited two of its claims. The remaining claims fail on the merits, the court found.

In a dissent, Circuit Judge David Sentelle said he would have denied standing for the petition as a whole. The other two judges on the opinion are Chief Circuit Judge Merrick Garland and Circuit Judge Nina Pillard.

Excerpts, et al., below: (Download the entire opinion for more)

On forfeited challenges:

"CSE argues that Interior violated [OCSLA] Section 18(a)(3) by failing to quantify potential coastal and onshore impact from additional OCS leasing. See 43 U.S.C. § 1344(a)(3); see also id. § 1344(a)(1). CSE objects that Interior’s quantitative cost-benefit analysis assumes that coastal and onshore impact of OCS leasing can be mitigated to zero through 'permit[]-related mitigation' at later program stages."

"We do not determine the adequacy of Interior’s consideration ... because CSE forfeited that claim. CSE failed to put Interior fairly on notice of the objection that its particular cost-benefit methodology inadequately quantified the coastal and onshore impact of additional OCS leasing."

"A footnote in CSE’s reply brief points to CSE’s own comment as grounds to find the issue preserved, but only two passages in that forty-page comment even obliquely refer to potential damage to ecosystems generally, and the feasibility of quantifying such costs."

The court, however, said that "snippets" from CSE's public comments on the leasing program "did not fairly raise CSE’s objection. Read in the light most favorable to CSE, they suggest that Interior should have quantitatively accounted for the harms to marine and terrestrial ecosystems in its estimates of Program costs, and that such costs can be quantified. The question in determining whether an issue was preserved, however, is not simply whether it was raised in some fashion, but whether it was raised with sufficient precision, clarity, and emphasis to give the agency a fair opportunity to address it."

"CSE also claims that Interior’s cost-benefit analysis is flawed because it was based on 'the irrational assumption that all OCS leases will be developed.' Pet. Br. 32. According to CSE, most leases are never developed or are substantially delayed in development. A cost-benefit analysis that predicts that every OCS lease granted under the 2012-2017 Program will be developed, and developed promptly, would thus fail to account accurately for Interior’s experience with the leasing program. Any such assumption would, in CSE’s view, significantly distort Interior’s assessment of the benefits of additional OCS leasing, and warrant vacating it as arbitrary and capricious.

"That claim, too, was not preserved, because CSE has not identified anything in the administrative record that could be construed as fairly raising it before the agency. CSE concedes its own failure to raise the point, but contends in its reply brief that another organization publicly commented on it."

Preserved challenges:

"CSE’s first preserved challenge to the Leasing Program is that Interior’s cost-benefit methodology for evaluating new leasing on the OCS is irrational and violates Section 18. CSE particularly critiques Interior’s evaluation of the costs of forgoing drilling, i.e., choosing a 'no-leasing option,' in Alaska."

"Interior’s inclusion of replacement energy costs in its net-cost analysis rests on the somewhat counterintuitive notion that not drilling for fossil fuels on the OCS would harm the environment. Interior’s premise is that, if the natural gas and oil obtainable from the OCS were not extracted, American energy users would turn to other sources to meet their energy needs. There are, in other words, opportunity costs of decisions not to drill."

"Interior reasonably chose an analytical approach that captured what it concluded are two significant elements of environmental and social assessment. First, in accounting for national costs of obtaining substitute energy, Interior assessed such projected costs wherever in the United States they were likely physically to occur; it did not restrict its assessment to costs that would be felt within an OCS Region or area’s geographic boundaries."

"Interior’s approach thereby sought to attribute to each OCS area a proportionate share of the national environmental costs of obtaining elsewhere the energy that the economy would demand if energy were not made available under an expanded OCS leasing program. The core idea of that economic attribution is that, if extracting natural gas from the Alaskan OCS would cause less net social and environmental harm nationwide than would obtaining natural gas from substitute sources, Interior’s cost-benefit analysis should favor leasing on the Alaskan OCS over forgoing it."

"Interior instead reasonably determined that the relative costs of leasing in various OCS program areas should take into account each area’s potential to minimize total national environmental impact. Its methodology recognizes that the national social and environmental costs of substitute energy demanded by a no-lease option are largely unaffected by the location of the no-lease option; they are a function of the amount of energy extraction forgone, and can be avoided by drilling anywhere for a commensurate amount of energy."

"In sum, CSE’s proposed methodology would effectively prioritize the cleanliness of remote Alaskan wilderness areas, whereas Interior’s methodology also accounts for the harmfulness of onshore and near-shore pollution associated with substitute energy sources. Interior counts those costs wherever they occur within the United States, and attributes them to OCS areas in proportion to the area’s potential energy reserves. Doing so means that Interior counts as more costly pollution affecting densely populated areas that impinges more immediately on human health and welfare than pollution occurring far from most human life. Interior’s judgments may be debatable. Some, like CSE, may reasonably conclude they are not the best judgments. But they are legally permissible."

National energy needs

CSE maintains that the economic analysis underlying the Program irrationally fails to track the proportion of OCS energy consumed by the American public. According to CSE, that failure means that Interior is not complying with the statutory mandate to develop OCS resources to meet 'national energy needs.' 43 U.S.C. § 1344(a).

"In CSE’s view, any OCS energy sold in foreign markets cannot have been produced to meet America’s 'national needs.' We reject that claim. Interior did not need to earmark where OCS fuel is finally consumed in order rationally to consider national energy needs. Interior’s analyses of energy markets were reasonable on the facts before it."

Mar 022015

In an unpublished decision, the D.C. Circuit Court of Appeals rejected a timber industry attempt to delist the marbled murrelet (American Forest Resource Council v. Ashe, 13-5302). District court decisions: Sept. 5, 2013 and March 30, 2013 Center for Biological Diversity news release Here’s the text: MEMORANDUM Appellants attack the Fish and Wildlife Service’s denial […]

Appeals filed in Great Lakes wolf case

 Posted by on February 27, 2015
Feb 272015
Appeals filed in Great Lakes wolf case

The federal government, the states of Wisconsin and Michigan and a coalition of hunting groups have appealed a Dec. 19 decision that put gray wolves in the Great Lakes back on the endangered species list. The United States and the hunting groups both filed notices of appeal Feb. 13. Wisconsin appealed on Feb. 26 and […]