KETANJI BROWN JACKSON, United States District Judge.
Plaintiffs Sierra Club and the National Wildlife Federation ("Plaintiffs") have sued several federal agencies and their officers ("Federal Defendants") in an attempt to enjoin the construction of the Flanagan South Pipeline (the "FS Pipeline"), a domestic oil pipeline that, as planned, will transport tar sands crude oil from Pontiac, Illinois, through the states of Missouri and Kansas, and ultimately into Cushing, Oklahoma. Because a private company is constructing the 589-mile pipeline on mostly privately-owned land that is entirely within the territorial borders of the United States, no federal statute authorizes the federal government to oversee or regulate the construction project. Nevertheless, Plaintiffs allege that the Federal Defendants have failed to conduct an assessment of the environmental impact of the entire FS Pipeline and, as a result,
This Court first addressed the question of whether any federal agency had a duty to conduct an environmental review of the entire privately-constructed FS Pipeline in the context of a motion for a preliminary injunction that Plaintiffs filed on September 4, 2013 — a mere 13 days after the August 22nd filing of Plaintiffs' First Amended Complaint. For the purposes of that preliminary injunction motion, this Court analyzed, among other things, whether or not Plaintiffs had a likelihood of success on the merits of their central argument, and the Court concluded that Plaintiffs were unlikely to be able to establish successfully that the Federal Defendants had violated their obligations under NEPA, the CWA, or the APA. See Sierra Club v. U.S. Army Corps of Eng'rs, 990 F.Supp.2d 9, 25-38 (D.D.C.2013) ("PI Opinion"); see also id. at 33-44 (finding, additionally, that Plaintiffs had failed to demonstrate irreparable harm, and that the balance of harms and public interest did not necessarily weigh in Plaintiffs' favor).
Before this Court at present are several motions that focus this Court's attention on the merits of this matter once again. The Federal Defendants and authorized Intervenor Enbridge Pipelines (FSP), LLC ("Enbridge") — the private company that is constructing the FS Pipeline — have filed motions to dismiss parts of Plaintiffs' first amended complaint on ripeness grounds and for failure to state a claim, seeking dismissal of the complaint's allegations that certain agencies have violated a duty to conduct an environmental review of the pipeline. Each party has now also filed a cross-motion for summary judgment, with Plaintiffs maintaining that the administrative record conclusively establishes the alleged NEPA, CWA, and APA violations, and the Federal Defendants and the Intervenor arguing that the undisputed facts unquestionably establish the opposite.
Setting aside the ripeness issue in light of subsequent developments in this case, this Court will
This Court's PI Opinion contains a lengthy and detailed discussion of the factual background of this case, as well as the complex web of statutes and regulations that undergird Plaintiffs' claims. See Sierra Club, 990 F.Supp.2d at 13-24. The Court will not reproduce that discussion in full here; it assumes familiarity with the prior description and expressly incorporates it herein. What is necessary for present purposes is a short restatement of the key facts and a review of the complaint's basic claims. In addition, the instant opinion includes a brief recitation of the procedural history that followed the PI Opinion.
As noted, Enbridge is a private company that constructs oil pipelines. Sierra Club, 990 F.Supp.2d at 13. Congress has not authorized the federal government to oversee the construction of private domestic oil pipelines; consequently, Enbridge has undertaken to build the planned FS Pipeline largely on its own, primarily by securing easements from the landowners who own the property over which the pipeline will operate. At the time of the PI Opinion, Enbridge had already approached more than 1,700 private land owners, and had "secured 96% of the land rights" along the 589-mile FS Pipeline route. Id.
Enbridge has also sought federal approval for constructing the FS Pipeline over the 27.28 total miles of federal land and waterways that the FS Pipeline route traverses. Id. To this end, the Army Corps of Engineers (the "Corps") has verified pursuant to the National Permitting System that the 13.68 total miles of FS Pipeline water crossings — which incorporate extensive mitigation measures — are consistent with a pre-existing national permit that pertains to construction projects that are likely to have "minimal" separate or cumulative adverse effects on the environment. 33 U.S.C. § 1344(e)(1); see also Reissuance of Nationwide Permits, 77 Fed. Reg. 10,184, 10,271 (Feb. 21, 2012). The Corps is also the agency responsible for considering Enbridge's request for an easement to construct and operate the pipeline over 1.3 total miles of federal land along the proposed route, including at points along the Mississippi River in Illinois and Missouri and the Arkansas River in Oklahoma. Because NEPA mandates that an agency evaluate the environmental consequences of any "major federal action [] significantly affecting the quality of human environment," 42 U.S.C. § 4332(2)(C), the Corps has assessed the environmental impact of permitting Enbridge to construct the FS Pipeline over that small portion of federal land and has granted Enbridge
Notably, to date, although some of the federal agencies that have considered Enbridge's requests regarding aspects of the FS Pipeline have reviewed the environmental impact of the pipeline's construction and operation over the particular geographical areas that are under the agency's jurisdiction — e.g., the BIA has issued an EA/FONSI regarding the 12.3 miles of Native American lands over which the pipeline will cross — no federal agency has interpreted NEPA as a mandate that it undertake a comprehensive environmental impact study of the entire 589-mile FS Pipeline.
Plaintiffs' currently operative First Amended Complaint contains six claims, each of which, in essence, points to the same underlying contention: that some federal agency, if not all of them collectively, had a statutory duty to conduct a NEPA review of the entire FS Pipeline.
As noted above, this Court issued an opinion denying Plaintiffs' motion for a preliminary injunction on November 13, 2013. More or less contemporaneously with this Court's issuance of that opinion, both the Federal Defendants and Enbridge filed motions to dismiss Plaintiffs' easement claims against the Corps and the BIA, as well as Plaintiffs' claim against the PHMSA, based on the fact that those agencies, at that time, had not yet taken any action regarding the easements or the not-yet-filed oil spill response plan. The motions to dismiss also argued that the claim against the FWS was subject to dismissal because that agency's issuance of the Biological Opinion and incidental take statement was non-discretionary. (See Mem. in Supp. of Fed. Defs.' Mot. to Partially Dismiss the Compl. ("Fed. Defs.' MTD Br."), ECF No. 47-1 (filed on Nov. 8, 2013); Mem. in Supp. of Intervenor's Mot. to Partially Dismiss the Compl. ("Enbridge MTD Br."), ECF No. 50-1 (filed on Nov. 19, 2013).)
On December 9, 2013, while these partial motions to dismiss were still pending (and indeed, before those motions were even fully briefed), Plaintiffs filed a Motion for Summary Judgment, largely reasserting the same arguments put forth in their unsuccessful preliminary injunction motion. (Pls.' Mot. for Summ. J. ("Pls.' MSJ
Significantly, the Federal Defendants thereafter filed two notices alerting the Court to certain developments in the case. In particular, on April 23, 2014, the Federal Defendants informed the Court that the BIA had granted easements to Enbridge, and on July 18, 2014, the Federal Defendants notified the Court that the Corps had done the same with respect to the land under its jurisdiction. (See Notice of Issuance of Easements by BIA, ECF No. 81; Notice of Issuance of Easements by Corps, ECF. No. 90.) Thus, the BIA and the Corps have apparently completed the environmental assessments of the impact of constructing the pipeline over the land under their jurisdiction and have made final determinations that the easements over the federal land under the control of those agencies should be granted, giving Enbridge the go-ahead to begin construction on those portions of the pipeline. In addition, according to Plaintiffs in a motion filed subsequent to the parties' briefing of the motions to dismiss and cross-motions for summary judgment, the Environmental Protection Agency ("EPA") has commented on proposed plans for the construction of portions of the pipeline, concluding that the entire FS Pipeline "[should] be analyzed as a `connected action' in a single NEPA document." (Pls.' First Mot. to Amend at 4.) Despite these new developments, neither the BIA nor the Corps, nor any other federal agency, has conducted an environmental review of the entire FS Pipeline.
The instant opinion will proceed as follows. First, this Court will consider whether and to what extent any of the claims in Plaintiffs' complaint must be dismissed based on the arguments made in the Federal Defendants' and Intervenor's partial motions to dismiss. By and large, the Federal Defendants' and Intervenor's ripeness arguments have been overtaken by events; therefore, this Court will consider them moot and will not address them. What remains of the motions to dismiss is the argument that the Plaintiffs' claim against the PHMSA must be dismissed for lack of any "final agency action," and also the contention that the FWS's preparation of a Biological Opinion and incidental take statement can never give rise to a NEPA obligation under the circumstances presented here and thus must be dismissed — both of which the Court addresses below.
The Federal Defendants and the Intervenor have moved to dismiss parts of Plaintiffs' complaint on two overarching bases: first, that "Plaintiffs have challenged numerous actions that may be undertaken by the Corps, PHMSA, BIA, and EPA that have not yet occurred and may never occur" (Fed. Defs.' Mot. to Partially Dismiss Pls.' Compl., ECF No. 47, at 2); and second, that "Plaintiffs have not stated a claim against PHMSA, EPA, and FWS because the[ir] ... actions are not major federal actions requiring NEPA review" (Fed. Defs.' MTD Br. at 12). There is no need to flesh out the details of the Federal Defendants' and Intervenor's ripeness-related arguments with respect to the complaint's easement claims against the Corps and the BIA because both sides now agree that these agencies have done an environmental assessment of the federal land over which the FS Pipeline will run, and have, in fact, issued the easements in question. With respect to Defendants' and Intervenor's similar contention that the PHMSA has not yet taken any "final agency action" and thus that this Court lacks jurisdiction over the claim against the PHMSA under the APA, it is well-established that the APA's final agency action requirement is not jurisdictional, see Reliable Automatic Sprinkler Co., Inc. v. Consumer Prod. Safety Comm'n, 324 F.3d 726, 732 (D.C.Cir.2003); thus, the final agency action argument provides no basis for dismissal of the PHMSA under Federal Rule of Civil Procedure 12(b)(1). Furthermore, Defendants' argument that this Court should dismiss Plaintiffs' claims against the BIA and EPA are unavailing for the very simple reason that the current complaint contains no "claim" against the EPA or BIA that can be subjected to dismissal.
"A Rule 12(b)(6) motion tests the legal sufficiency of a complaint[.]" Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks and citation omitted). "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citation omitted). Although a plaintiff may survive a Rule 12(b)(6) motion even where "recovery is very remote and unlikely[,]" the facts alleged in the complaint "must be enough to raise a right to relief above the speculative level[.]" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation marks and citation omitted). Moreover, a pleading must offer more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action[.]" Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (internal quotation marks and citation omitted).
If the facts as alleged, which must be taken as true, fail to establish that a plaintiff has stated a claim upon which relief can be granted, the Rule 12(b)(6) motion must be granted. See, e.g., Am. Chemistry Council, Inc. v. U.S. Dep't of Health & Human Servs., 922 F.Supp.2d 56, 61 (D.D.C.2013). Notably, in deciding a Rule 12(b)(6) motion, a court may "consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint[,] and matters of which [the Court] may take judicial notice." EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir. 1997).
The complaint maintains that the FWS and PHMSA have engaged in "major federal actions" for the purpose of NEPA and thus should have conducted an environmental review of the entire pipeline. (See Compl. ¶¶ 165-171 (FWS); 172-179 (PHMSA).) The Federal Defendants and Intervenor maintain that no such NEPA claim is possible as a matter of law because neither agency exercises any discretion in determining whether or not to issue a Biological Opinion or approve a submitted oil-response plan, and in any event, the PHMSA has not yet engaged in any action, much less a major federal action, with respect to the FS Pipeline. (See Fed. Defs.' MTD Br. at 16-23; Enbridge MTD Br. at 5-10.)
The Court concludes that it cannot dismiss the claim against the FWS on the
The additional argument that the Federal Defendants and the Intervenor make regarding the dismissal of Plaintiffs' claim against the PHMSA has much more traction. The complaint claims that the PHMSA violated a duty to conduct a NEPA review of the entire FS Pipeline before construction began because, at some point in the future, PHMSA will be called upon to approve an oil spill response plan for the FS Pipeline and that such approval will constitute a "major federal action" for NEPA purposes. (Compl. ¶¶ 172-179.) Defendants maintain that this claim should be dismissed because the PHMSA has not yet even been presented with such a plan, much less engaged in the process of deciding whether or not to approve one, and thus, the complaint fails to state a claim upon which relief can be granted.
On this point, the Court agrees with Defendants. Although the fact that an agency has not yet affirmatively acted may not preclude a finding that the agency
Here, it is undisputed that the PHMSA has not even received an application from Enbridge for approval of an oil spill response plan (or a request that the pipeline be authorized to operate without such approval); thus, the agency is certainly not engaged in the process of considering any such plan or request. This Court concludes that, insofar as the PHMSA has not even begun considering whether or not to take action with regard to the FS Pipeline, the PHMSA had no duty under NEPA or otherwise to conduct an environmental review of the FS Pipeline as a matter of law, and therefore, Plaintiffs' claim against the PHMSA (Claim IV of the complaint) must be dismissed for failure to state a claim upon which relief can be granted.
Plaintiffs' motion for summary judgment maintains that the record here conclusively demonstrates both that an environmental impact study of the entire FS Pipeline was required under NEPA (see, e.g., Pls.' MSJ Br. at 1-3), and also that the Corps violated the CWA and the APA when it allegedly verified that the 1,950 FS Pipeline-related water crossings were consistent with NWP 12 without taking into account the "cumulative effects" of those water crossings (see Compl. ¶¶ 190-93; Pls.' MSJ Br. at 41-54).
In most civil cases, summary judgment will be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Moore v. Hartman, 571 F.3d 62, 66 (D.C.Cir.2009). "Summary judgment is [also] the proper mechanism for deciding, as a matter of law, whether an agency action is supported by the administrative record and consistent with the APA standard of review." Loma Linda Univ. Med. Ctr. v. Sebelius, 684 F.Supp.2d 42, 52 (D.D.C.2010) (citing Stuttering Found. of Am. v. Springer, 498 F.Supp.2d 203, 207 (D.D.C.2007)); see also Richards v. INS, 554 F.2d 1173, 1177 n. 28 (D.C.Cir.1977). However, due to the limited role a court plays in reviewing the administrative record to evaluate whether an agency has complied with the APA, the typical summary judgment standards are not applicable. Stuttering, 498 F.Supp.2d at 207.
Id. (quoting Occidental Eng'g Co. v. INS, 753 F.2d 766, 769-70 (9th Cir.1985)). In other words, "when a party seeks review of agency action under the APA, the district judge sits as an appellate tribunal," and "[t]he `entire case' on review is a question of law." Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C.Cir. 2001) (footnote and citations omitted).
Significantly, the APA provides a "default standard" of judicial review of agency actions on summary judgment when the governing statute does not otherwise provide one: "[a] court must set aside agency action it finds to be `arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" Tourus Records, Inc. v. DEA, 259 F.3d 731, 736 n. 10 (D.C.Cir.2001) (quoting 5 U.S.C. § 706(2)(A)). "The `arbitrary and capricious' standard of review as set forth in the APA is highly deferential," and the Court must therefore "presume the validity of agency action." Am. Horse Prot. Ass'n v. Yeutter, 917 F.2d 594, 596 (D.C.Cir.1990) (citation omitted). Although the "court is not to substitute its judgment for that of the agency[,] ... the agency must examine the relevant data and articulate a satisfactory explanation for its action[,] including a rational connection between the facts found and the choice made." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (citations and quotation marks omitted).
Plaintiffs' primary contention in this case — which is restated in various ways in
First, Plaintiffs assert that certain activities that the individual federal agencies named as defendants have undertaken with respect to the FS Pipeline qualify as "major federal actions" that should have prompted those agencies to do an assessment of the entire FS pipeline under NEPA. (See Compl. ¶¶ 156-160, 165-171; Pls.' MSJ Br. at 18-30.) See also Sierra Club, 990 F.Supp.2d at 15-16.
Plaintiffs' first argument in support of summary judgment on their NEPA-violation claims is that the record indisputably establishes that both the Corps's issuance of four letters verifying the FS Pipeline water crossings, and also the FWS's preparation of a Biological Opinion and incidental take statement, qualify as "major federal actions" that triggered a duty to conduct an environmental impact review under NEPA. Under the regulations implementing NEPA, the term "major federal action" includes "actions with effects that may be major and which are potentially subject to Federal control and responsibility[,]" 40 C.F.R. § 1508.18, and as explained in the PI Opinion, the relevant case law and authorities establish that, if the federal agency itself is not undertaking or financing the project in question, the agency action qualifies as "major federal action" for NEPA purposes only if the agency's act is tantamount to a permit that allows the project to proceed. See Sierra Club, 990 F.Supp.2d at 25-26; see also Wetlands Action Network v. U.S. Army Corps of Eng'rs, 222 F.3d 1105, 1117 (9th Cir.2000) (finding no major federal action where the project in question "could proceed without the permit" issued by a federal agency (emphasis in original)); Ramsey, 96 F.3d at 444 (noting that "if a federal permit is a prerequisite for a project with adverse impact on the environment, issuance of that permit does constitute a major federal action"); Daniel R. Mandelker, NEPA Law & Litig. § 8:19 (2d ed.2014) (explaining that "[f]ederal permits, leases and other approvals" are "typical examples" of major federal action triggering NEPA in the context of otherwise non-federal projects). Plaintiffs appear to accept that standard, and argue here that the Corps's verification letters — which collectively certified that the 1,950 instances in which the FS Pipeline impacts waters of the United States were consistent with a preexisting nationwide permit — were effectively "permits" for the purpose of the NEPA definition. (See Pls.' MSJ Br. at 24-26.) Plaintiffs make essentially this same argument with respect to the Biological Opinion and incidental take statement that the FWS issued when it consulted with the Corps and BIA. (See id. at 19-21.) However, in light of the record evidence, this Court concludes that neither the Corps's verifications nor the FWS's Biological Opinion and incidental take statement satisfy the "major federal action" NEPA requirement.
The PI Opinion discussed at length how the Corps's NWP 12 verification process
For its construction of the FS Pipeline, Enbridge asked the Corps to verify that each of the 1,950 water crossings that construction of the FS Pipeline might impact was consistent with Nationwide Permit 12, a nationwide permit that specifically authorizes discharges into federal waterways as required for "the construction, maintenance, repair, and removal of utility lines and associated facilities in waters of the United States, provided the activity does not result in the loss of greater than 1/2-acre of waters of the United States for each single and complete project." Reissuance of Nationwide Permits, 77 Fed.Reg. 10,184, 10,271 (Feb. 21, 2012). In August and September of 2013, Corps district engineers from each of the four Corps districts through which the FS Pipeline passes issued letters verifying that the water crossings associated with the FS Pipeline were, in fact, consistent with NWP 12. (See Admin. R. ("AR") App. Part 1, ECF No. 79-1, at 5-11 (Kansas City Dist. Verification Letter); AR App. Part 6, ECF No. 79-6, at 5-17 (Rock Island Dist. Verification Letter); AR App. Part 7, ECF No. 79-7, at 5-13 (St. Louis Dist. Verification Letter); AR App. Part 10, ECF No. 79-10, at 5-6 (Tulsa Dist. Verification Letter).)
This Court explained in detail in the PI Opinion why Plaintiffs would be unlikely to establish that the Corps's verifications were permits for construction of the FS Pipeline such that they would qualify as a major federal action under the regulatory definition. See Sierra Club, 990 F.Supp.2d at 25-30. The PI Opinion noted that "the law quite clearly distinguishes between `verifications' and `permits' in the CWA context," and that this distinction manifests itself in the difference between a project that is verified as consistent with an existing general permit, and one that must be subjected to searching scrutiny under the individual permitting system. Id. at 26. Most significantly, this Court pointed out that "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," id. (emphasis added), and that it would therefore "make[] little sense" to accept Plaintiffs' position 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[,]" id. at 26-27.
In their summary judgment motion, Plaintiffs point to no record evidence or any new authorities that would cast doubt on the Court's prior reasoning regarding the proper characterization of the Corps's verifications. Rather, Plaintiffs now seek essentially to sidestep the distinction between general and individual permits altogether, by arguing that the verifications here qualify as a major federal action because, as a result of the verifications, the Corps had "discretion over a substantial part" of the FS Pipeline. (Pls.' MSJ Br. at 25 (citing Karst Envtl. Educ. & Prot., Inc. v. EPA, 475 F.3d 1291, 1297 (D.C.Cir. 2007)).) To the extent that this argument is based on Plaintiffs' contention that the verifications here related to a significant number of water crossings spread throughout the length of the pipeline, i.e., that the Corps's verification process impacted a "substantial part" of the pipeline (see Pls.' MSJ Br. at 33-34), they do have a point about scale, but it is a point that, in this Court's view, is not material to the applicable legal analysis.
As the PI Opinion explained, when the Corps undertakes to "verify" the benign nature of a project under the general permit scheme, it is not engaging in an exercise of discretion with respect to that project in the relevant sense, regardless of whether the agency is called upon to verify one water crossing or 1,000. See Sierra Club, 990 F.Supp.2d at 28-29 & n. 14. The plain language of NEPA underscores that Congress understood that not all of the activities that an agency undertakes can properly be considered "major federal actions" for NEPA purposes, and courts rightly have concluded that only those agency actions that implicate an agency's decision-making authority qualify as "major federal actions" under NEPA. See, e.g., Citizens Against Rails-to-Trails v. Surface Transp. Bd., 267 F.3d 1144, 1151 (D.C.Cir.2001) ("The touchstone of whether NEPA applies is discretion."). Whereas a request for an individual permit to discharge dredged material into waters of the United States requires the Corps to consider such matters as "the location, purpose and need for the proposed activity," as well as the "the type, [source,] composition and quantity of the material to be dredged, the method of dredging, and the site and plans for disposal of the dredged material[,]" 33 C.F.R. § 325.1(d),
Accordingly, the Corps's failure to perform a NEPA review as part of its verification process was neither arbitrary and capricious nor contrary to law, and the Court will enter summary judgment in favor of Defendants with respect to Plaintiffs' NEPA-related claim based upon the Corps's verifications (Claim II(a)).
Both the Corps and the BIA consulted with the FWS pursuant to the Endangered Species Act ("ESA"), as part of the previously described verification process and also as part of the process that both agencies undertook when evaluating the easements that Enbridge requested in order to construct the small portion of the FS Pipeline that traverses federal land and waterways. (See AR Part 1 at 39.) When so consulted, the FWS is required to determine whether "any action authorized, funded, or carried out by [the consulting] agency" is likely "to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species[.]" 16 U.S.C. § 1536(a)(2). Federal agencies considering certain actions (such as the verifications and easements at issue here) are required to consult with the FWS under Section 7 of the ESA, and Plaintiffs' complaint contends that the FWS's preparation of the required Biological Opinion, and also its issuance of a related incidental take statement, constituted a "major federal action" that triggered a duty on the part of the FWS to conduct an environmental review of the entire FS Pipeline pursuant to NEPA. (Compl. ¶¶ 165-171.) In its summary judgment briefing, Plaintiffs also make the related contention that, by accepting and incorporating the FWS's Biological Opinion and incidental take statement into its own analysis of the requested verification letters, the Corps had a NEPA duty to undertake an environmental review of the entire pipeline. (Pls.' MSJ Br. at 26-28.)
With respect to Plaintiffs' claim that the FWS had a NEPA duty to review the entire FS Pipeline as a result of the Biological Opinion and incidental take statement that it issued, this Court previously accepted Plaintiffs' assertion that an FWS Biological Opinion and incidental take statement may sometimes qualify as "major federal action," see Sierra Club, 990 F.Supp.2d at 30; see also supra Part II.B, but concluded that the circumstances here were such that it was unlikely that Plaintiffs would be able to demonstrate that the
Perhaps as a result of this shortcoming, Plaintiffs have tried a slightly different tack on summary judgment: they argue that the acting agency — in this case, the Corps — had a duty to undertake a NEPA review by virtue of the fact that it "implemented" the terms of the FWS's Biological Opinion and incidental take statement in its own verification letters. (See Pls.' MSJ Br. at 26-27.) As an initial matter, it is not clear from the record that the verification letters the Corps divisions sent to Enbridge do, in fact, "implement" the Biological Opinion and incidental take statement: the letters contain boilerplate statements that the FWS documents are "incorporated by reference," but they are also careful to note that the verification letters "do[] not authorize [Enbridge] to take an endangered species" and that in order to do so, Enbridge "must have separate authorization under the Endangered Species Act." (Kansas City Dist. Verification Letter at 6; Rock Island Dist. Verification Letter at 6; St. Louis Dist. Verification Letter at 6.)
Nevertheless, even if the verification letters' language referring to "incorporation" of the FWS's work product were sufficient to support the conclusion that the Corps "implemented" the FWS's Biological Opinion and incidental take statement, Plaintiffs
Plaintiffs strenuously assert that this is so, relying on the language referencing the Biological Opinion and incidental take statement in the verifications (see Pls.' MSJ Br. at 27 (citing Kansas City Dist. Verification Letter at 6; Rock Island Dist. Verification Letter at 6; St. Louis Dist. Verification Letter at 6)), as well as several email conversations that occurred between the FWS, the Corps, and Enbridge regarding the scope of the Biological Opinion (id. at 20-21 (citing AR App. Part 5, ECF No. 79-5, at 42-48)). But these references demonstrate only that the agencies were aware of, and considered, the FWS's opinion, as the law required them to do; they do not establish that the verifications or easements would not have issued had the FWS's findings been different. Indeed, to the contrary, both the verification letters and the Biological Opinion itself make it clear that Enbridge could proceed with construction of the FS Pipeline regardless of what the Corps said about the FWS statements.
What is more, the FWS's Biological Opinion itself does not provide any basis for concluding that the FS Pipeline construction project necessarily would have been halted but for the positive FWS evaluation such that it would be reasonable to maintain that the Biological Opinion and incidental take statement permitted the construction to proceed. In fact, the documents the FWS prepared are rife with conditional language and speculation regarding the potential impact of the FS Pipeline's construction on the endangered species at issue, and indeed, the FWS ultimately concluded that the construction would probably not result in any major impact to any of those species. (See AR App. Part 1, ECF No. 79-1, at 39 (Biological Opinion) (concluding that construction was likely to have minimal impact on the species in question).) See also Sierra Club, 990 F.Supp.2d at 40 (discussing the Biological Opinion's conclusions).
In short, although Plaintiffs repeatedly assert that "[w]ithout an [incidental take statement], Enbridge would be prohibited by the ESA from constructing" the FS Pipeline (Pls.' Reply to Pls.' Mot. for Summ. J. & Resp. to Defs.' & Intervenor's Cross-Mots. for Summ. J. ("Pls.' MSJ Reply"), ECF No. 74, at 14), the record does not demonstrate conclusively that issuance of the Biological Opinion and incidental
As noted at the outset, Plaintiffs' complaint primarily rests on a core belief that NEPA required some federal agency somehow to conduct an environmental assessment of the entire 589-mile FS Pipeline before that pipeline could be constructed and operated. Claim V alleges as much, and because the other NEPA-related claims in the complaint address each federal agency individually, Claim V is most reasonably construed as asserting that the actions of the various federal agencies with some connection to the FS Pipeline's construction and operation — taken together — were sufficient to give rise to an obligation for the Federal Defendants to perform a NEPA analysis covering the entirety of the FS Pipeline, and to select a lead agency responsible for the review. (Compl. ¶¶ 180-189 (emphasis added).) This claim boils down to an assertion that, regardless of whether or not any of the individual agency actions meets the threshold for major federal action under NEPA, if there is persistent federal involvement with a given private project, the project is effectively "federalized" for NEPA purposes such that an environmental review is required. (See, e.g., Compl. ¶ 181 (alleging that all of the federal actions "singly, in combination, and cumulatively constitute major federal action"); see also Pls.' MSJ Br. at 34-37.)
The "federalization" theory of NEPA responsibility is not new; indeed, as the PI Opinion made clear, the case law and authorities interpreting NEPA have held that an otherwise non-federal action can become federalized for NEPA purposes, but in order for that to occur, the federal government must exercise substantial control over the otherwise private project. See, e.g., Mandelker § 8:19 (noting that in cases where "the action claimed to fall under NEPA was nonfederal, the question becomes whether the action was federalized and brought under NEPA because a federal agency exercised control over the nonfederal action"); 40 C.F.R. § 1508.18 (defining "major federal action" to include actions "potentially subject to Federal control and responsibility"); Citizens Alert Regarding the Env't v. EPA, 259 F.Supp.2d 9, 20 (D.D.C.2003), aff'd 102 Fed.Appx. 167 (D.C.Cir.2004) (noting that a non-federal project can be federalized where the federal agencies "have sufficient authority over the local project so as to control or influence its outcome"); Ross v. Fed. Highway Admin., 162 F.3d 1046, 1051 (10th Cir.1998) (a project may be federalized where "the federal government has actual power to control the project" (internal quotation marks and citation omitted)). This Court has previously explained at length why the cumulative involvement of the various federal agencies here was not likely to be deemed sufficient to federalize the FS Pipeline such that the Federal Defendants were required to perform a NEPA analysis of the environmental impacts of the pipeline as a whole. Sierra Club, 990 F.Supp.2d at 36-37. Moreover, in this regard, this Court noted that "Plaintiffs have significantly overstated the degree of federal involvement in the FS Pipeline in an attempt to shoehorn
Here, in the summary judgment context, Plaintiffs have neither directly rejected the Court's legal conclusion that federal control is a critical component of adequate "federalization," nor pointed to any additional record evidence that establishes that the federal agencies had the requisite degree of control over the FS Pipeline. Instead, Plaintiffs either seek to advance arguments about the nature of the federal activities that this Court already rejected in the PI Opinion, or they retreat to reliance on conclusory assertions regarding the combined impact of the federal actions in question, or both. For example, Plaintiffs reassert their argument that the Western District of Texas's opinion in Spiller v. Walker, No. 98-ca-255, 2002 WL 1609722 (W.D.Tex. July 19, 2002), is dispositive on the federalization issue (see Pls.' MSJ Br. at 34-35), and further argue that the federal government effectively had control and responsibility over the project as a whole because the record reflects "both final agency actions and `major federal actions[,]'" (id. at 36-37).
Neither of these arguments provides any basis for this Court to question the reasoning set forth in the PI Opinion regarding Plaintiffs' federalization argument. To begin with, this Court has already noted its disagreement with the conclusion that the Spiller court reached — a disagreement that was primarily based on the fact that Spiller involved CWA verifications and the Spiller court did not "sufficiently account for the fact that Congress established a general permitting system as an alternative to the requirement that construction projects with a minimal potential impact on national waterways obtain an individual permit under the CWA." Sierra Club, 990 F.Supp.2d at 28. In invoking Spiller yet again, Plaintiffs have provided no response to this Court's stated view of that opinion.
Similarly, Plaintiffs' assertion that the presence of some major federal actions (i.e., the Corps's and BIA's granting of easements), viewed along with the Corps's verifications and the FWS's issuance of the Biological Opinion and incidental take statement, "constitutes federal discretion over a substantial part of the project" (Pls.' MSJ Br. at 44) is a conclusory characterization that is at odds with this Court's perception of the case as stated in the PI Opinion, and Plaintiffs have failed to offer any legal argument or record evidence that demonstrates that the Court was wrong to conclude that federal control and responsibility was lacking on the facts of this case. See Sierra Club, 990 F.Supp.2d at 34 (noting that the "minor pieces of federal involvement in a nearly 600-mile pipeline fall short of imbuing the federal government with `control and responsibility' over the pipeline as a whole"). Thus, Plaintiff has provided no basis for revisiting in any substantial way this Court's conclusion in the PI Opinion that the combined actions of the federal agencies involved with the FS Pipeline (including the Corps's and BIA's issuance of easements and the PHMSA's eventual consideration of an oil spill response plan) do not give rise to a duty to conduct a comprehensive NEPA review of the entire pipeline because the federal government lacks a sufficient degree of "control and responsibility" over the pipeline project, and this Court sees none.
There is, however, one aspect of the Plaintiffs' "federalization" claim that was not addressed in the PI Opinion and is worthy of mention here: the allegation that, "[a]t a minimum, the Corps and the other agencies were required under 40 C.F.R. § 1501.5[] to determine which agency would act as the `lead agency' and
Section 1501.5(a) of Title 40 of the Code of Federal Regulations provides that "[a] lead agency shall supervise the preparation of an environmental impact statement if more than one Federal agency either: (1) Proposes or is involved in the same action; or (2) Is involved in a group of actions directly related to each other because of their functional interdependence or geographical proximity." But this regulation, which Plaintiffs cite and rely upon in making their "lead agency" argument, appears in the Code after a series of provisions that address an agency's preparation of an EA as opposed to an EIS, see id. § 1501.3, and that direct the agency regarding the procedures to be followed internally with respect to making the determination of whether or not to prepare an EIS, see id. § 1501.4. As a result, it is clear from context that the "lead agencies" regulation pertains only to the circumstance in which more than one agency has already followed the previous steps and has come to the conclusion that an EIS is appropriate; in other words, the "lead agency" provision merely addresses the proper procedures for avoiding duplicative efforts through the collective designation of a lead agency to perform a single EIS. See id. § 1501.5(c) ("If an action falls within the provisions of paragraph (a) of this section, the potential lead agencies shall determine by letter or memorandum which agency shall be the lead agency and which shall be the cooperating agencies."). This provision does not on its face pertain to the threshold determination that any particular agency must make regarding whether or not an EIS is warranted, much less mandate that, in a circumstance such as this one (where no agency has decided to do such an environmental review of the entire project), an environmental review is nevertheless required.
In short, this Court concludes that the combined actions of the various federal agencies did not federalize the FS Pipeline and there was no requirement that a "lead agency" be designated under the circumstances presented in this case. Therefore, summary judgment will be entered in favor of Defendants on Count V of the complaint.
Plaintiffs' argument for summary judgment on their core NEPA claim also rests on the contention that the entire FS Pipeline must be analyzed in a single, comprehensive NEPA document because it is one "connected action." (Pls.' MSJ Br. at 13-16.) Plaintiffs' "connected action" characterization, which the EPA allegedly has adopted (see Pls.' First Mot. to Amend at 4), is grounded in 40 C.F.R. § 1508.25, a
Id. In Plaintiffs' view, all of the various activities of the federal agencies involved with the FS Pipeline "are interdependent parts of a larger action" within the meaning of 40 C.F.R. § 1508.25(a)(1)(iii) — namely, the construction and operation of the pipeline itself — and, thus, if a NEPA environmental review was conducted with respect to any part of the pipeline then all of the pipeline needed to be evaluated as part of that review. (See Pls.' MSJ Br. at 15-16.)
In this respect, Plaintiffs' argument appears to be that, because the Corps and the BIA had a NEPA duty to conduct an environmental impact review of the part of the FS Pipeline that traversed the federal land and waterways over which those agencies had jurisdiction in conjunction with their consideration of whether or not to grant the requested easements (a major federal action) (id. at 31-32), those agencies were required by law to expand the scope of their review to encompass the entire pipeline pursuant to the connected action doctrine (id. at 13-16). But this argument rests on an incorrect interpretation of the relevant regulations in light of the context within which an agency must consider "connected actions."
As has already been stated repeatedly in this Memorandum and in the PI Opinion, the threshold question that any agency must answer in determining whether NEPA requires an environmental review is whether there has been, or will be, any "major Federal action significantly affecting the quality of the human environment." 42 U.S.C. § 4332(1)(C). The regulations implementing NEPA direct each federal agency to adopt procedures for determining which of its activities qualifies as such a major federal action, see 40 C.F.R. § 1507.3(b)(2); thus, it is the agency's own regulations that govern the initial question of whether or not NEPA applies to a given activity, see id. §§ 1501.3 ("Agencies shall prepare an environmental assessment ... when necessary under the procedures adopted by individual agencies to supplement these regulations[.]"), 1501.4 (directing agencies to use their own regulations to determine whether to prepare an environmental impact statement). It is only after this initial determination has been made that the regulations require agencies to determine the scope of any required NEPA analysis. See id. § 1501.4(d) (noting that an agency shall "[c]ommence the scoping process [under 40 C.F.R. § 1501.7] if the agency will prepare an environmental impact statement" (emphasis added)).
Moreover, when viewed in context, the scoping regulations clearly direct the agency to determine what the extent of its environmental impact review will be relative to the federal action that is the trigger for the required environmental study in the first place. Put differently, the regulatory scheme makes clear that the "scoping" assessment — which is referred to at several different points in various regulations — pertains to the questions and issues that the agency must address within the EA report or EIS that is being prepared under NEPA in order to inform the agency about whether to undertake some particular major federal action. See id.; see also id. § 1500.1 (explaining that "NEPA documents must concentrate on the issues that are truly significant to the action in question" (emphasis added)). Conversely, nothing in the regulations supports Plaintiffs' assertion that the scoping provisions require an agency to expand the EA or EIS to address actions that are completely outside the ambit of that agency's control and responsibility — that is, matters that are not the major federal action that originally triggered the agency's NEPA obligations — and to conclude otherwise would fly in the face of the well-established rule that an agency responsible for only a small part of a larger project need not consider aspects of that project outside of its jurisdiction. See, e.g., Weiss v. Kempthorne, 580 F.Supp.2d 184, 189 (D.D.C.2008) ("In conducting an EA where the proposal being reviewed is but a small piece of a larger project over which the agency has no authority, an agency does not go beyond the scope of its permitting authority to review the area over which it has no jurisdiction." (citations omitted)).
Properly understood, then, the "connected actions" regulation requires that the impact on the environment of all aspects of a particular major federal action be evaluated together in a single EA or EIS, meaning that any such major federal action cannot be segmented such that the
This Court concludes that the connected action doctrine is inapplicable to the circumstances of this case, and also finds that it would be manifestly inconsistent with the purposes of NEPA to require the Federal Defendants to conduct an environmental impact assessment of the parts of the FS Pipeline over which the federal government has no control. Therefore, the Court rejects Plaintiffs' reliance on the connected action doctrine as a basis for its claim that Defendants had a NEPA duty to review the entire pipeline.
Plaintiffs' final contention regarding the conduct of the federal government in relation to the FS Pipeline is that the Corps violated the CWA and APA because it failed to abide by the requirements of NWP 12 in issuing its verifications. (Compl. ¶¶ 190-193 (Claim VI).) Specifically, Plaintiffs maintain that summary judgment should be entered in their favor because the Corps did not evaluate the "cumulative effects" of all of the 1,950 water crossings along the 600 mile span of the FS Pipeline together before verifying those crossings under NWP 12. (See id. ¶ 192; see also Pls.' MSJ Br. at 41 (asserting that the Corps's verifications "failed to include a determination that the cumulative
77 Fed.Reg. at 10,287 (emphasis added). According to Plaintiffs, this language requires that "a minimal cumulative effects determination [with respect to the entire pipeline] must be included in the verifications[,]" and the fact that no pipeline-wide cumulative effects analysis was done and included in the verification letters at issue here renders the Corps's verification determinations "arbitrary and capricious[.]" (Pls.' MSJ Br. at 43; see also Pls.' MSJ Reply at 22 (asserting that, not only was the Corps required to include a cumulative effects determination covering the entire pipeline in its verifications, but it was also required to provide evidence of its analysis).)
This Court finds Plaintiffs' argument unpersuasive. As the Federal Defendants point out, there is no legal requirement that the Corps conduct a pipeline-wide "cumulative effects" analysis because the same Federal Register Notice in which NWP 12 was published also explains that "cumulative effects are evaluated on a regional basis[,]" and the "[c]umulative effects analysis may be done on a watershed basis, or by using a different type of geographic area, such as an ecoregion." (Fed. Defs.' MSJ Br. at 42 (emphasis added) (citing 77 Fed. Reg. at 10,264).) This statement in the regulation is not "plainly erroneous or inconsistent" with the governing authorities, Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997), and it clearly undermines Plaintiffs' contention that the Corps was required to analyze the impact of all of 1,950 water crossings along the entire length of the FS Pipeline cumulatively.
Furthermore, the record demonstrates that a region-based analysis of the adverse cumulative effects of the water crossings on the environment was precisely what was done in this case. District Engineers from each of four different geographic regions considered Enbridge's verification requests, and conducted both an individual and cumulative analysis of the water crossings within that region, as evidenced by the insertion of a statement in each verification letter to the effect that "[t]he proposed activity would result in only minor individual and cumulative adverse environmental effects and would not be contrary to the public interest." (AR App. Part 1 at 31 (Kansas City Dist. Mem. for R.) (emphasis added); see also AR App. Part 9, ECF No. 79-9, at 123 (St. Louis Dist. Mem. for R.) (same); AR App. Part 6 at 39 (Rock Island Dist. Mem. for R.) (determining that "[t]he proposed activity, with proposed mitigation would result in no more than minor individual and cumulative adverse environmental effects"); AR App. Part 10 at 13 (Tulsa Dist. Mem. for R.) (determining that "[t]he proposed activity would result in no more than minimal individual and cumulative adverse environmental effects and would not be contrary to the public interest, provided the special conditions identified [] above are incorporated").) Thus, it is clear that each district engineer made a cumulative effects determination as required by NWP 12, and Plaintiffs have not
To the extent that Plaintiffs' argument is that the Corps's cumulative effects determinations were insufficient because the Corps's district engineers did not provide enough information in their letters to justify the stated determinations (Pls.' MSJ Reply at 22-23), this Court rejects that conclusion as well. In fact, each of the statements in the verification letters regarding the cumulative effects determination was made at the end of a lengthy memorandum explaining, among other things, the details concerning the scope of the proposed project in each respective district, the expected effect of the project on waters of the United States within that district, and specific mitigation techniques to be employed in response to those effects — including construction techniques used to minimize impacts, the purchase of wetland credits to offsets impacts, and post-construction measures taken to counteract the impact of construction. (See, e.g., AR App. Part 1 at 12-13; AR App. Part 6 at 18-19; AR App. Part 9 at 103-4; AR App. Part 10 at 12.) Based upon the detailed information in the Memoranda for Record, and in particular, the numerous statements regarding mitigation programs Enbridge had or would be implementing, this Court has little trouble finding that there was a factual basis in the evidentiary record for the district engineers to reach the conclusions they did regarding the cumulative effects of the portions of the pipeline planned for construction in their district.
Accordingly, this Court concludes that the Corps's verification determinations were not arbitrary and capricious, and that Defendants are entitled to judgment on Plaintiffs' claim that the Corps's engineers failed to conduct a cumulative effects evaluation under NWP 12 in violation of the CWA and APA.
In the instant case, this much is clear: a private company is constructing the FS Pipeline project largely on privately-owned land; the federal agencies that have been consulted about aspects of the pipeline project have control over only a small portion of the land and waterways that the pipeline traverses; and no statute authorizes the federal government to regulate or oversee the construction of a domestic oil pipeline. Given that the clear purpose of NEPA is "to foster excellent action" on the part of the federal government, 40 C.F.R. § 1500.1(c), this Court finds that the Federal Defendants' restraint in not initiating an environmental impact review of the entire privately-constructed FS Pipeline is clearly in accordance with the purpose of the NEPA statute. Put another way, the record evidence establishes that the FS Pipeline is not itself an "action" of the federal government — no matter how earnestly Plaintiffs contend that it is — and to the extent that Plaintiffs here insist that federal officials must conduct an environmental impact analysis of the entire pipeline anyway, they mistakenly view NEPA not as an appropriate means of informing agency officials about the environmental consequences of major actions that the federal government is poised to take, but as a mechanism for instituting federal evaluation and oversight of a private construction project that Congress has not seen fit to authorize the federal government to regulate. This Court sees no basis in law or in fact for a conclusion that the Federal Defendants here violated any NEPA, CWA, or APA obligation. Consequently, as set forth in the two separate orders that accompany this opinion, Plaintiffs' complaint against the PHMSA (Claim IV) is dismissed for failure to state a claim;
