NEPA

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.

 

Sep 162015
 

The Forest Service must take another look at a mining project it approved in the Coronado National Forest, following a federal judge's decision that found the service improperly excluded the project from NEPA review (Defenders of Wildlife v. U.S. Forest Service, 14-2446-TUC-RM, D. Ariz.).

The now-postponed Sunnyside Project, proposed by Regal Resources, would involve "six temporary drill sites to assess copper mineralization," U.S. District Judge Rosemary Márquez said in her order, issued yesterday (Sept. 15).

"USFS’s determination that the project can be completed in one year or less is unsupported by the record. Therefore, USFS’s approval of the project using the categorical exclusion for short-term mineral explorations pursuant to 36 C.F.R. § 220.6(e)(8) was arbitrary and capricious," she said.

The service had approved the project in April after consulting with the Fish and Wildlife Service and concluding that the project would not adversely affect endangered species, including the western yellow-billed cuckoo. The plaintiffs, including the Patagonia Area Resource Alliance, filed a supplemental complaint that dropped the ESA claims.

It turned out that NEPA was enough.

"The decision authorized Regal Resources to run its drill rigs for at least five months in sensitive endangered species’ habitat," Defenders of Wildlife said in a news release announcing the judge's decision. "Loud mineral drilling operations and construction would occur 24 hours a day, seven days a week (using artificial lighting at night) with total project operations and reclamation lasting up to three years."

The Forest Service did not adequately explain why "potential effects to the Mexican spotted owl are certain to be environmentally insignificant," the judge said. "[T]he administrative record indicates that the effects of the Sunnyside Project’s nighttime lighting on the Mexican spotted owl are uncertain, and that negative effects on the owl from project noise can be anticipated in up to 26% of the owl’s non-breeding territory."

In addition, she said, "USFS’s determination that the Sunnyside Project will not have significant environmental effects is based in large part upon the anticipated ability of listed species, such as the ocelot and jaguar, to avoid the affected area during project activities. This basis for USFS’s determination is undermined by the [Forest Service's] revised Decision Memorandum’s failure to consider the Sunnyside Project’s cumulative effects in relation to other temporally and geographically similar mineral exploration projects."

Regarding cumulative impacts, the judge said, "While the ESA definition of cumulative effects ignores future federal actions (see 50 C.F.R. § 402.02), the broader NEPA definition looks to 'the incremental impact of the action when added to [all] other past, present, and reasonably foreseeable future actions.' 40 C.F.R. § 1508.7. In relying upon the revised [Biological Assessment's] EPA [sic: Judge surely meant to write "ESA"] cumulative impact analysis, the revised Decision Memorandum failed to conduct a proper cumulative impact analysis under NEPA."

"[I]n finding that the Sunnyside Project was not likely to adversely affect listed species, USFS and USFWS relied heavily on the project’s limited temporal and geographic scope. The record indicates that the Hermosa Project will have similar  environmental effects as the Sunnyside Project, meaning the environmental disturbances from the projects will exist over a larger geographical area and a larger temporal timeframe than that analyzed in the revised Decision Memorandum. Even if the projects will not temporally overlap, USFS has not shown that its failure to analyze the cumulative impact of the Sunnyside and Hermosa projects clearly had no bearing on its conclusion that the Sunnyside Project would not have cumulatively significant environmental effects."

USFS also "failed to clearly show" that the two projects won't occur at the same time. The Hermosa Project is due to start in November.

"The argument that the Sunnyside Project and the Hermosa Project will have no cumulative impacts because they will not temporally overlap is a post hoc rationalization unsupported by the information available to USFS at the time it issued its revised Decision Memorandum," Márquez  wrote.

 

Sep 082015
 

A federal judge agreed with environmental groups that the Army Corps of Engineers and Bureau of Reclamation did not adequately study the impacts to endangered pallid sturgeon before deciding to move forward with building a concrete dam and bypass channel along the Yellowstone River (Defenders of Wildlife v. U.S. Army Corps of Engineers, 15-14-GF-BMM, D. […]

Jun 152015
 

For more Federal Register notices on the ESA and National Environmental Policy Act, go to http://www.eswr.com/fr-today The Fish and Wildlife Service has begun a “scoping period” on an Environmental Impact Statement that will examine a plan to issue Incidental Take Permits under a Midwest Wind Energy MultiSpecies Habitat Conservation Plan that is being prepared. The […]

Apr 272015
 

Press release Forest Service info on the Tennessee Creek Vegetation Management Project Conservation groups, concerned about the effects of a logging project on lynx denning habitat, have filed suit against the Forest Service in Colorado (WildEarth Guardians v. Conner, 15-858, D. Colo.). The defendant is Tamara Conner, District Ranger of the Leadville Ranger District in […]

Mar 162015
 

Environmental groups in North Carolina have won a court challenge to the Garden Parkway, a proposed 21-mile toll highway project near Charlotte. (Order) The Federal Highway Administration and North Carolina DOT “violated [the National Environmental Policy Act] and the [Administrative Procedure Act] by using the same set of socioeconomic data that assumed construction of the […]

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 […]

Mar 032015
 

Forest Service will prepare EIS on a proposal to designate over-snow vehicle (OSV) use on National Forest System roads, National Forest System trails, and areas on National Forest System lands within the Eldorado National Forest; and to identify snow trails for grooming. In addition, FS proposes to: (1) formally adopt California State Parks’ Off-Highway Motor […]

Mar 022015
 

Background from WWP The Bureau of Land Management must go back and try to explain its decision to allow grazing on the Sonoran Desert National Monument, a federal judge has ruled (Western Watersheds Project v. BLM, 13-1028-PHX-PGR, D. Ariz.). “The BLM has been ordered to file a supplemental report providing the reasoned explanations for its […]

Jan 052015
 

The Forest Service and Fish and Wildlife Service adequately reviewed a thinning project in the Nez Perce National Forest, the Ninth Circuit concluded in an unpublished opinion released today (Alliance for the Wild Rockies (AWR) v. Brazell, 14-35050). The judges on the opinion are M. Margaret McKeown, Richard C. Tallman and Michael Daly Hawkins. AWR […]