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.


Dec 102013

The federal government owes the state of Arkansas about $5.8 million, the Federal Circuit Court of Appeals ruled Dec. 3, affirming a lower court determination after a remand from the Supreme Court (Arkansas Game & Fish Commission v. U.S., 09-5121).

The high court had held that the Army Corps of Engineers' flooding of a wildlife management area in Arkansas from 1993 through 2000 was a temporary taking and required compensation (Ark. Game & Fish Comm’n v. United States, 133 S. Ct. 511, 2012).

The game and fish commission had sought an award covering tree damage on 6,900 acres, but the federal circuit went along with the Claims Court, which limited the area to the 349 acres where the damage was classified as "severe." (Damage on the remaining 6,641 acres was "heavy" or "moderate.")

More coverage: Law360 (Lexis/Nexis)

Excerpts from Fed. Circuit opinion:

The Supreme Court reversed this court, holding that government-induced flooding can constitute a taking even if it is temporary in duration. Ark. Game & Fish Comm’n v. United States, 133 S. Ct. 511 (2012). Unlike permanent physical takings, the Court explained, temporary invasions “are subject to a more complex balancing process to determine whether they are a taking.” Id. at 521, quoting Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 n.12 (1982).

Perhaps the most telling evidence in support of the trial court's finding of causation came from the Corps of Engineers itself. After conducting a site visit in early 2001 and determining that the Management Area would flood when the water level at the Corning gauge reached six feet, the Corps admitted that the deviations had "clear potential for damage to bottomland hardwoods" in the Management Area. In response to the Commission's complaints that the flooding was destroying the hardwood forest, a Corps representative stated that the Commission "has objected in the past because they contend that we increase the flood duration of hardwoods and kill more trees this way, particularly during the growing season. They now have a study that shows this and we acknowledge the validity of their concerns." The Corps' district engineer explained that the deviations were ended because they "would unacceptably extend the duration of water inundation on bottomland hardwoods." And at public meetings during that period, the Corps admitted that, based on its site visit in March 2001, the deviations were "negatively impacting [the Management Area] during [the] growing season." In sum, the evidence supports the trial court's findings that the deviations caused a substantial increase in the periods of growing-season flooding in the Management Area and that the flooding caused widespread damage to the trees there. Those findings in turn support the trial court's legal conclusion that the deviations caused an invasion, in the form of a temporary flowage easement, of the property rights enjoyed by the Commission and its predecessors since before the construction of the Clearwater Dam and until 1993.2

"While it is true that each of the Corps-authorized deviations was designated as temporary, the deviations were renewed each year between 1993 and 2000. The deviations were adopted in response to requests from agricultural interests, which sought to have the pattern of water releases from Clearwater Lake modified to increase the length of the harvest season. The changes made in the release patterns between 1993 and 2000 had the intended effect of benefiting farmers in the area, but as the trial court found, the change also resulted in a substantial increase in the number of days that the Management Area was flooded during each growing season during those years.

"That period of flooding imposed a severe burden on the Commission's property. According to the trial court's findings, 'the government's superinduced flows so profoundly disrupted certain regions of the Management Area that the Commission could no longer use those regions for their intended purposes, i.e., providing habitat for wildlife and timber for harvest.' 87 Fed. Cl. at 620.

"The government's claim that each of the deviations that the Corps of Engineers implemented during the 1990s was insufficient by itself to effect a taking ignores that while the prescribed water levels varied slightly from year to year, the deviations were directed to a single purpose-to accommodate agricultural interests-and had a consistent overall impact on the Management Area. Thus, the government-authorized flooding of the Management Area is properly viewed as having lasted for seven years, and the question whether the flooding constituted a compensable taking must be assessed in light of an invasion of that duration."

From decision by Court of Federal Claims Judge Charles F. Lettow (7/1/09):

"[T]he Commission has not established to a reasonable certainty the need for regeneration damages for the remaining 6,641 acres. Undoubtedly parts of that acreage contain clusters of invasive wetland species, some of which may be sizeable. Nonetheless, there is no basis in the record to differentiate the areas that would require regenerative work from others which retain some oak stands of significance and which may well regenerate themselves, albeit over the course of many years. Thus, the Commission can only recover regeneration costs for the 349 acres that were classified as severe by Mr. Watts and which the court in a reasonable way confirmed by the site visit."


2006 decision from Lettow

P.I. request to halt pipeline turned down

A federal judge has denied a preliminary injunction request to halt construction of the Flanagan South (FS) Pipeline, expected to transport oil from Illinois to Oklahoma (Sierra Club v. U.S. Army Corps of Engineers, 13-1239 KBJ, D.D.C.).

The lawsuit says the Corps and other federal agencies did not comply with the Clean Water Act, National Environmental Policy Act and Administrative Procedure Act in approving the 589-mile project. But U.S. District Judge Ketanji Brown Jackson said the plaintiffs proceeded on "the mistaken assumption that the [Corps'] verifications are the equivalent of a permit insofar as they effectively authorized the FS Pipeline to proceed."

Said Jackson: "[T]he law quite clearly distinguishes between 'verifications' and 'permits' in the CWA context, compare 33 C. F. R. Part 325 (establishing procedures for individual permits), with 33 C. F. R. Part 330 (detailing procedures for verification under general permitting system), and the entire point of the general permitting system is to avoid the burden of having to conduct an environmental review under NEPA when a verification--as distinguished from an individual discharge permit--is sought. As previously and extensively explained, under the general permitting system, the Corps conducts an extensive environmental review and provides the public with notice and an opportunity to comment regarding categories of construction activity that the Corps seeks to designate as having minimal impact on waterways within specified geographical regions. See 33 C. F. R. § 330.1(b). The purpose of the statute that authorizes general permits such as the nationwide permit at issue here is to allow the Corps to designate certain construction projects as eligible for CWA discharge permits 'with little, if any, delay or paperwork' because they fit within these pre-cleared categories of activities.

"Consequently, it makes little sense that, notwithstanding the FS Pipeline project's eligibility for verification under NWP 12, the Corps nevertheless had to conduct a full environmental review under NEPA, as plaintiffs maintain. In other words, the requisite comprehensive environmental review is done upfront under the general permitting system precisely to avoid a NEPA environmental review regarding certain projects that fit into categories of activity that have been predetermined to have minimal environmental impact. Therefore, once the Corps's district engineers verified that the discharges resulting from the FS Pipeline satisfied NWP 12, no additional environmental review was required."

The judge had this to say about the possibility of an oil spill:

"Finally, a few words about plaintiffs' suggestion that operation of the FS Pipeline risks a devastating oil spill that would be damaging to nearby communities, and that that harm is sufficient to warrant an injunction. The court acknowledges and accepts that some of the people who live in areas near the pipeline project are sincerely worried about the harm that an oil spill might cause. As genuine as these concerns may be, plaintiffs have not shown that a damaging oil spill is likely to occur, and it is bedrock law that injunctions 'will not issue to prevent injuries neither extant nor presently threatened, but only merely feared.' Comm. in Solidarity With People of El Salvador (CISPES) v. Sessions, 929 F. 2d 742, 745-46 (D. C. Cir. 1991) (internal quotation marks and citations omitted). In other words, the harms that an oil spill might potentially someday cause--however fearsome--are not certain, and therefore are not sufficient to satisfy the 'irreparable harm' standard.

Background from the opinion

"At least 560 miles of the 589 miles of pipe that will comprise the FS Pipeline will traverse land that is entirely privately owned. According to Enbridge, the company has identified 2,368 tracts owned by 1,720 separate landowners along the course of the pipeline and has secured 96% of the land rights along the entire route. Thus, with respect to the vast majority of the pipeline, no federal permission or authorization is required for construction. However, it is undisputed that the FS Pipeline will at times cross federal lands and waterways at various points along its planned route through the heart of the country. Three types of federal crossings will occur and are at issue in this litigation: (1) 13.68 total miles of “waters of the United States” (as defined in the CWA and its implementing regulations) that are primarily located on private land but are subject to the jurisdiction of the Army Corps of Engineers (the “Corps”) under the CWA; (2) 12.3 miles of Native American land that is subject to the jurisdiction of the Bureau of Indian Affairs (“BIA”); and (3) 1.3 miles of land that the federal government owns and that is also under the Corps’s jurisdiction. To construct and operate the portion of the pipeline that traverses these 27.28 total miles, Enbridge must have federal approval, and a separate statutory and regulatory scheme, discussed below, governs each type of land or water crossing."

No, you take it: Ex-Im NEPA case to be heard in D.C.

The Northern District of California (District Judge William Alsup, specifically) has transferred a NEPA action against the Export-Import Bank to the U.S. District Court in Washington, D.C. The plaintiffs allege that the Ex-Im Bank should have prepared an EIS or environmental analysis before approving a $90 million commercial loan guarantee for Xcoal Energy & Resources LLC, "a coal mining, transport and export company" (Chesapeake Climate Action Network v. Export-Import Bank of the United States, 13-03532 WHA, N.D. Cal.).

In 2010, Xcoal, headquartered in Latrobe, Pa., exported about 11 million tons of metallurgical coal through Baltimore and Hampton Roads, "making it the largest coal exporter in the United States that year," Alsup wrote in his Nov. 15 order.

Plaintiffs, including the Chesapeake Climate Action Network and Friends of the Earth, "assert[] that as a result of the loan guarantee, the Export-Import Bank 'enables Xcoal to broker an estimated $1 billion in sales of coal for export from mines in Appalachia; transport that coal by rail to port facilities in [Maryland and Virginia]; . . . store . . . that coal in port; and then transport that coal by ship to clients in China, Japan, South Korea and elsewhere.” Each of these activities allegedly causes “significant adverse effects on human health and the environment.” In particular, the complaint alleges that coal dust and diesel exhaust emitted by the mining and transportation of coal contributes to cardiopulmonary problems in mining communities, along rail lines, and around export terminals. Coal mining also allegedly contaminates its surrounding environment, harms local wildlife populations, and produces large volumes of contaminated wastewater."

Alsup said that the convenience of the parties, though not a significant factor in his analysis, nonetheless favored transfer, as most of the parties' counsel are located in  and around Washington, D.C.  In addition, "[w]ith regard to local interest, the District of Columbia has a stronger local interest in this action than [the Northern District of California] because the administrative process occurred in the District of Columbia and the federal defendants reside there."


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