THOMAS L. LUDINGTON, United States District Judge.
On August 22, 2018, Plaintiffs, Environmental Law & Policy Center ("ELPC") and National Wildlife Federation ("NWF"), filed a complaint against Defendants, United States Coast Guard and Rear Admiral Joanna M. Nunan in her official capacity as Coast Guard District Commander. Plaintiffs allege that the Coast Guard's Northern Michigan Area Contingency Plan ("NMACP"), certified by the Ninth Coast Guard District Commander, Rear Admiral June E. Ryan, on June 6, 2017, is inadequate to respond to a worst-case discharge and that Defendants wrongfully approved the NMACP in violation of the Administrative Procedure Act ("APA") (Count I) and the Oil Pollution Act of 1990 ("OPA") (Count II). ECF No. 1.
On October 15, 2018, Enbridge, the owner of two oil pipelines known as "Line 5" which are identified as a potential source of a worst case discharge in the NMACP, moved to intervene as a defendant. ECF No. 12. As owner and operator of Line 5, Enbridge was entitled to intervention as of right. See Fed. R. Civ. P. 24(a)(2). The motion was unopposed and was granted on November 1, 2018. ECF No. 17. The administrative record was filed on December 17, 2018 and amended on June 4, 2019. ECF Nos. 20, 32. On February 15, 2019, Plaintiff moved to supplement the administrative record. ECF No. 24. On April 11, 2019, the Court directed supplemental briefing on the motion, and ultimately denied the motion to supplement the record on May 24, 2019. ECF Nos. 27, 31. A full factual and procedural summary can be found in those orders.
On June 20, 2019, Plaintiffs filed three motions: 1) motion for certification of an interlocutory appeal of the Court's order denying Plaintiffs' motion to supplement the administrative record, 2) motion to stay, and 3) motion to extend time for Plaintiffs to file a motion for summary judgment. ECF Nos. 33-35. On June 25, 2019, the Court entered an order denying the motion to stay and granting the motion for an extension of the dispositive motion deadline in part. ECF No. 36. On July 19, 2019, the Court denied Plaintiffs' motion for certificate of an order for interlocutory appeal. ECF No. 41. The Court explained that
On July 1, 2019, Plaintiffs filed a motion for summary judgment. ECF No. 37. In accordance with the scheduling order, Defendants Coast Guard and Rear Admiral Joanna Nunan filed their cross-motion for summary judgment/response on August 2, 2019, and Intervenor-Enbridge filed its cross motion for summary judgment/response on August 9, 2019. ECF Nos. 42, 44. Replies were timely filed. ECF Nos. 46, 47, 48.
The Oil Pollution Act ("OPA") extensively amended the Federal Water Pollution Control Act (33 U.S.C. § 1301 et. seq.) and added new requirements to provide enhanced capabilities for oil spill response and natural resource damage assessment. The OPA also amended the Clean Water Act and addressed the wide range of problems associated with preventing, responding to, and paying for oil pollution incidents in navigable waters of the United States. It created a comprehensive prevention, response, liability, and compensation regime to deal with vessel- and facility-caused oil pollution to U.S. navigable waters. The OPA greatly increased federal oversight of maritime oil transportation, while providing greater environmental safeguards by:
The Oil Pollution Act of 1990 was signed into law on August 18, 1990, by George H. W. Bush. Among other things, it amended 33 U.S.C. § 1321. The new law required the President to "prepare and publish a National Contingency Plan ["NCP"] for removal of oil and hazardous substances," which will "provide for efficient, coordinated, and effective action to minimize damage from oil and hazardous substance discharges." (d)(1) & (2). The NCP must include:
Under the OPA and the NCP, all of the United States and its territory is divided into jurisdictional zones for purposes of removal and response actions. The U.S. Coast Guard is designated the lead agency for planning and response in the coastal zone and certain major inland water bodies and the EPA is designated the lead agency for the inland zone, with certain exceptions for areas managed by the Department of Defense. EPA, Area Contingency Planning, https://www.epa.gov/oil-spills-prevention-and-preparedness-regulations/area-contingency-planning (last visited Feb. 20, 2020); E.O. 12777 from October 18, 1991.
An Area Contingency Plan (ACP) is a reference document prepared for use by all agencies engaged in responding to environmental emergencies within a defined geographic area. An ACP may also contain Sub-Area and Geographic Response Plans, which may have more limited scope than the ACP itself. An ACP is a mechanism to ensure that all responders have access to essential area-specific information and promotes inter-agency coordination to improve the effectiveness of responses.
The ACP shall:
The worst-case discharge is defined as "the largest foreseeable discharge in adverse weather conditions." ECF No. 32-2 at PageID.1946. Adverse weather is defined as "the weather conditions that will be considered when identifying response systems and equipment in a response plan for the applicable operating environment. Factors to consider include significant wave height, ice, temperature, weather-related visibility, and currents within the Captain of the Port (COTP) zone in which the systems or equipment are intended to function." ECF No. 32-2 at PageID.1950.
The President delegated his power to approve Area Contingency Plans to the U.S. Coast Guard. E.O. 12777 from October 18, 1991.
In addition to each Area Committee creating an ACP that must be approved by the Coast Guard, facilities that could reasonably be expected to cause "substantial harm" to the environment by discharging oil into or on navigable waters are required to prepare and submit Facility Response Plans (FRPs). 33 U.S.C. § 1321(j)(5)(D). Facilities that could cause "significant and substantial harm" are required to have their plans approved by an EPA Regional Administrator (RA). Id. These include facilities with the potential for large-scale discharges or releases (such as pipelines, large storage and manufacturing facilities, and railroads). Id.
In the event of an oil spill, the FRP is immediately activated. Local, area, or regional plans, such as the ACP, may also be put into motion, depending on the nature of the spill. EPA, Area Contingency Planning, https://www.epa.gov/oil-spills-prevention-and-preparedness-regulations/area-contingency-planning (last visited Feb. 20, 2020). According to the OPA, certain facilities that store and use oil are
The Ninth Coast Guard District "is responsible for all Coast Guard operations throughout the five Great Lakes, the Saint Lawrence Seaway and parts of the surrounding states including 6,700 miles of shoreline and 1,500 miles of the international border with Canada." US Department of Homeland Security, Ninth District, https://www.atlanticarea.uscg.mil/Our-Organization/District-9 (last visited Feb. 20, 2020). The Coast Guard Sector Sault Sainte Marie "is responsible for all Coast Guard missions on Lake Superior, northern Lakes Michigan and Huron, and surrounding navigable waterways." U.S. Department of Homeland Security, Sector Sault Saint Marie, https://www.atlanticarea.uscg.mil/Our-Organization/District-9/Ninth-District-Units/Sector-Sault-Sainte-Marie (last visited Feb. 20, 2020).
The Northern Michigan Area Committee members include representatives from over 10 federal and international agencies, 3 Michigan departments, emergency services from 27 Michigan counties, tribal representatives from 6 tribes, 7 port stakeholders (including Enbridge), 6 BOA contractors, 3 environmental groups, and 2 northern Michigan higher education institutions. ECF No. 32-2 at PageID.1965-1967. The boundaries of the NMACP are shown below.
ECF No. 32-2 at PageID.1959.
One part of the NMACP includes planning scenarios for an oil spill, including a worst-case discharge (WCD). ECF No. 32-2 at PageID.2146. The WCD by vessel likely would be by the St. Mary's River by a Canadian tank vessel (capacity 3,162,516 gallons) on the Canadian side of Lake Superior. ECF No. 32-2 at PageID.2146-2147. Tank vessels are prohibited on the U.S. side of Lake Superior. Id. The WCD from a facility would be from the Nobel Petro facility in Rogers City, MI, which is on the coast of Lake Huron. ECF No. 32-2 at PageID.2147. The WCD is estimated to be 3,360,000 gallons. NMACP also identifies a second potential WCD from Enbridge's Line 5 under the Straits of Mackinac, which is five miles west of the Mackinac Bridge. Id. If the emergency flow properly closes after a release in the pipeline, it is estimated 269,976 gallons could be released into the Straits. If the emergency flow restricting device does not operate as intended, then the WCD is estimated to be 804,888 gallons. Id.
In 2016, the Coast Guard issued a 2016 Great Lakes ACP update with a target date of February 1, 2017 for new, approved ACPs. ECF No. 32-1 at PageID.1719. Ultimately, Commander Ryan submitted a letter of approval of the approved NMACP on June 6, 2017. ECF No. 32-2 at PageID.1934 et seq.
On June 6, 2017, Ninth Coast Guard District Commander, Rear Admiral June E. Ryan, certified the NMACP. The NMACP is a 217-page document. The NMACP describes the specific geographic boundaries of the area covered by the plan. It covers over 20 counties in northern Michigan, and surrounding waterways, roughly from Marquette County to the Northwest to Leelanau County to the Southwest to Alpena County to the Southeast to Chippewa County to the Northeast. ECF No. 32-2 at PageID.1959. The introduction to the plan provides as follows:
The NMACP contains the following description of a worst-case facility discharge:
The administrative record includes summaries of three exercises conducted by the Coast Guard and local emergency response
The second exercise occurred on January 2012 and the report was completed in June 2012. Id. at PageID.1358 et seq. The exercise lasted four days, two days of which occurred on the water. Id. The participants in the second exercise were: the USCG Research and Development Center CG District 9, Station St. Ignace, Sector Sault Ste. Marie, CG National Strike Force personnel, Representatives from CG Districts 1, 5, 13, and 17, Enbridge Pipeline, EPA, National Oceanic and Atmospheric Administration, Science Applications International Corporation. Id. at PageID.1375. Observers included the CG Headquarters, CG, and MDEQ. Id. The exercise was also four days — two days on the water and two days on land. Id. at PageID.1376. The executive summary of the report notes that "[w]hile oil recovery issues have come to the attention of responders, researchers, and other stakeholders, work continues on improving response capabilities under possibly harsh conditions." Id. at PageID.1364. Multiple types of equipment were tested, including a grooved drum skimmer ("better candidate for use in open water or quiet pools"), a DESMI PyroBoom, ("successfully capture[d] and tow[ed] a quantity of ice broken from the ice pack by actions of one of the tugs" with towing speed "kept to a minimum"), a self-contained fire monitor ("[w]hile slow and a bit tedious, this method [of guiding oil spill surrogate into a pocket] appeared to work, but moving larger pieces of rubble ice with the water jet was difficult"), a rope-mop skimmer ("should be deployed in more open water for maximum efficiently" but "appeared to operate successfully"), a DESMI Helix skimmer ("successfully deployed from the Coast Guard Cutter (CGC) Hollyhock, both under rubble and sheet ice conditions"), a DESMI Polar Bear (not fully tested because improperly cleaned from a prior oil spill), and a remotely operated vehicle with UV fluorometer ("showed great potential both as a means of locating oil concentrations under sheet ice and potentially as a means of positioning and manipulating oil recovery equipment beneath the ice"). Id. at PageID.1364-1365.
The third exercise occurred in February 2013 and the report was finalized in June 2013. Id. at PageID.1448 et seq. Similar to the first two exercises, the exercise was four days — two on water, two on land. Id. at PageID.1454. The participants for the third exercise included: CG Research and Development Center, CG District 9, Sector
The Coast Guard's After Action Report from a September 24, 2015, exercise sponsored by Enbridge was finalized on January 11, 2016. Id. at PageID.1722 et seq. The September 2015 exercise "included the deployment of assets to test the Enbridge Straits of Mackinac Tactical Response Plan and validated a draft USCG Geographic Response Plan for the Straits pipeline.... The scenario involved a release of 4,500 bbls of medium crude (189,000 gallons) into the Straits of Mackinac from Enbridge Line 5." ECF No. 32-1 at PageID.1724. The exercise looked at on-shore, near-shore, and open water recovery procedures. Id. Most of the lessons learned focused on improving communication to improve recovery operations. The Enbridge Emergency Response Exercise: The Straits of Mackinac Participant Handbook from September 24, 2015, was also included in the record. Id. at PageID.1662 et seq. The handbook outlined the rules for the exercise and the expectations of participants from the September 2015 Exercise.
The record includes notes from two different conversations Coast Guard representatives had with Michigan Senator Gary Peters. Id. at PageID.1616, 1717-1718. There are also multiple email chains between the Coast Guard and various interested parties. See e.g., ECF No. 32-2 at PageID.1742-1748. A draft version of the NMACP is included. ECF No. 32-2 at PageID.1754 et seq. There is also a geographic response plan ("GRP") included in the record, which is included as an appendix to the NMACP. ECF No. 32-2 at PageID.1908 et seq.
In addition, a Coast Guard PowerPoint is included in the record. It explains the USCG Sector Sault in 2011 conducted an Oil-in-Ice Equipment Deployment Drill, in 2012 conducted Oil-in-Ice Full Scale Exercise in the Straits of Mackinac, including detection and recovery of submerged oil. In 2013 the Coast Guard also conducted a second Oil-in-Ice Full Scale Exercise in the Straits of Mackinac including new techniques and operating procedures, in 2014 conducted an Enbridge Led Full Scale Exercise at Indian River focusing on notification, recovery and rehabilitation of wildlife, and coordinated responses between agencies. ECF No. 32-2 at PageID.2152-2155. In 2015, Enbridge led a Functional with Resources Deployment Exercise at St. Ignace focusing on communication, identifying priorities for spill removal, and establishing a unified command system. The USCG also conducted a Table Top Exercise with Mark West Pipeline and an Area Maritime Security Committee
At the end of the record, there are several quotes from Detroit Free Press articles. One quote is from Jerry Popiel, the incident management advisor for the CG's 9th District, stating "when you get above 3-, 4-, 5-foot seas — definitely at 5 feet — you are beyond where you can safely deploy these things and have them do any good." ECF No. 32-2 at PageID.2188. The record does not provide information regarding when this information was shared or who the intended audience was. There are also quotes from an unknown newspaper where Coast Guard Planning Officer Steven Keck explained crews do not conduct spill recovery at night, that high waves and strong currents is one of the biggest difficulties for Enbridge, that Enbridge needs to train individuals on its new equipment, and that Mackinac Island ferries are designated "vessels of opportunity" should the need arise with an oil spill. ECF No. 32-2 at PageID.2189. Mr. Keck also told the reporter that Enbridge is the primary party responsible for an oil spill clean-up, not the Coast Guard. Id. at PageID.2190. Mr. Keck explained that the ice breakers could be 24-48 hours away during an oil spill and while the "ice creates a challenge," the Coast Guard is "confident we can respond." ECF No. 32-2 at PageID.2190. Lastly, Mr. Keck also stated that high waves could inhibit a response to an oil spill. Id.
The record also included testimony by Admiral Zukunft. Admiral Paul F. Zukunft is the former Commandant of the U.S. Coast Guard. ECF No. 32-1 at PageID.1554. The Commandant is the highest-ranking member of the United States Coast Guard. In April of 2015, Adm. Zukunft testified before the U.S. Senate Subcommittee on Oceans, Atmosphere, Fisheries, and the Coast Guard. Id. The Subcommittee is under the purview of the U.S. Senate Committee on Commerce, Science, & Transportation. Id. The relevant testimony was as follows:
Also included in the administrative record is a copy of the Saint Mary's River Geographic Response Plan ("GRP") from 2013 created by the Coast Guard and Sector Sault Sainte Marie. ECF No. 32-1 at PageID.1620 et seq. The GRP is an appendix to the NMACP and "is designed to be a ready-to-use tool for the Coast Guard Federal On-Scene Coordinator and partner agencies to employ in oil spill and hazardous substance response operations on the St. Mary's River." Id. at PageID.1623. The GRP is "a vision document, not a decision document" and is "meant to complement, not supersede, guidance provided in the" NMACP or the U.S. or Canadian sensitivity indexes. Id. at PageID.1623.
When the USCG reviewed and scored the NMACP, all major categories except for planning and logistics received a 3 out of 4 — meaning it met standards. Planning and logistics received a 2 out of 4 indicating they needed additional attention. The overall score was a 31 out of 44 or 71%. ECF No. 32-2 at PageID.2160.
Before the motions for summary judgment are addressed, Plaintiffs' standing must first be analyzed. ELPC is a non-profit based in Chicago. ECF No. 1 at PageID.5. They also have an office and staff located in Michigan. Id. National Wildlife Fund ("NWF") describes itself as a "not-for-profit conservation advocacy and education organization [w]ith over 750,000 members nationwide" including 26,000 in Michigan. Id. at PageID.6. NWF is based in DC and also has a Michigan location. Id. Both Plaintiffs explain that their "members use and enjoy the Great Lakes for aesthetic and recreational reasons, and for scientific research. They enjoy observing the fish and wildlife, visiting the coasts, boating, kayaking, and swimming." ECF No. 1 at PageID.7.
"The irreducible constitutional minimum of standing contains three elements." Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). First, Plaintiff must have suffered an injury in fact — an "invasion of a legally protected interest" which is "concrete and particularized" and not "conjectural or hypothetical." Id. at 561, 112 S.Ct. 2130. Second, the injury must be fairly traceable to the conduct complained of. Id. Third, "it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Id.
"[T]he desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing." Lujan, 504 U.S. at 563-64, 112 S.Ct. 2130 (citing Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972)). Plaintiffs explained in their complaint that their members use the Great Lakes for personal recreation and for research. Plaintiffs sufficiently asserted standing, arguing an impending injury in fact — harm to the Great Lakes if an oil spill occurs, the potential oil spill is fairly traceable to the Line 5 pipeline, and this lawsuit seeking to overturn the Coast Guard's determination that the ACP sufficiently provides a plan in case an oil spill occurred in Line 5 ensures redressability.
Under the APA a court must set aside an agency's decision if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A). To determine whether an agency has acted arbitrarily or capriciously, a court should consider whether the agency "has relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007). However, "the scope of review under the `arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency." 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). "The arbitrary and capricious standard is the least demanding review of an administrative action. If there is any evidence to support the agency's decision, the agency's determination is not arbitrary and capricious." Kroger Co. v. Reg'l Airport Auth. of Louisville & Jefferson, 286 F.3d 382, 389 (6th Cir. 2002) (internal citations omitted).
Judicial review is generally limited to the administrative record that was before the agency at the time of its decision. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410-20, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Based on the record before it, an agency is required to "articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made." Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43, 103 S.Ct. 2856 (internal quotation omitted). Therefore, a party challenging an agency action is required to "show that the action had no rational basis or that it involved a clear and prejudicial violation of the applicable statutes or regulations." McDonald Welding v. Webb, 829 F.2d 593, 595 (6th Cir. 1987). A court must give an agency's interpretation of its own regulations "controlling weight unless it is plainly erroneous or inconsistent with the regulation." Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994) (internal quotations omitted).
"It is true that agencies are more specialized than courts are. But for courts to defer to them, agencies must do more than announce the fact of their comparative advantage; they must actually use it. And that means, among many other things, that the agency must apply—rather than disregard—the relevant statutory and regulatory criteria." Meister v. U.S. Dep't of Agric., 623 F.3d 363, 367 (6th Cir. 2010).
Pursuant to a stipulated order, Plaintiffs and Defendants only submitted two filings. ECF No. 23. Plaintiffs first filed a motion for summary judgment and their second filing was a combined response to Defendants Coast Guard and Enbridge's motions and a reply to their own motion. ECF Nos. 37, 46. Defendants Coast Guard and Enbridge's motions for summary judgment also served as a response to Plaintiffs' motion for summary judgment and their second filings were replies to their own motions. ECF Nos. 42, 44, 47, 48. All briefs focus on the two concerns highlighted in Plaintiffs' complaint — the presence of ice and high waves in the NMACP. Accordingly, the motions will be addressed together.
Federal law requires that the ACP "shall, when implemented in conjunction with the National Contingency Plan, be
However, in their reply, Plaintiffs shift their argument and instead argue that "[t]here is no dispute in this case that the Coast Guard is aware of the challenges presented by these adverse — yet common — weather conditions in the Straits of Mackinac. What is disputed is whether, in light of that knowledge, the Coast Guard provides sufficient rationale for its conclusions that (1) `a delay of one or two days does not mean the response will not be adequate to remove the worse case discharge' and that (2) the need to delay response until high waves to abate does not render the plan inadequate." ECF No. 46 at PageID.2399.
In support of their argument that Defendant is not adequately prepared for a response with ice present, Plaintiffs allege that because the NMACP does not "identif[y] the location of [ice-breaking] Coast Guard vessels, nor specif[y] the amount of time it would take for each of the ice-breakers to reach the Straits of Mackinac if the vessels are in their home ports" or identify commercial ice-breaking companies who could assist if needed, the Coast Guard's approval of the NMACP was arbitrary and capricious. ECF No. 37 at PageID.2256. Plaintiffs also explain in the June 2013 report that the Coast Guard noted that "[a]n ice-breaker may be required to `break out' tugs from their frozen-in moorings and open channels through ice for tug transit to operational area," and "to `break out' barges from frozen-in moorings and open channels through ice for barge transit to operational area." ECF No. 37 at PageID.2251; ECF No. 32-1 at PageID.1496.
In support of their argument that Defendants are not adequately prepared to respond in high waves, Plaintiffs argue the Coast Guard's approval of the NMACP is also arbitrary and capricious because the "NMACP fails to consider the impact of significant wave heights in adverse weather conditions" despite "significant record evidence that significant wave height and activity can delay and preclude timely and effective response by the Coast Guard to an oil spill." ECF No. 37 at PageID.2264. Plaintiffs cite to record evidence of difficulties of deploying booms and skimmers with high waves and argue [w]hile the NMACP describes the potential expertise of the [environmental planning] specialists, it
In addition to discussing the reports from the three Coast Guard exercises, Plaintiffs also discussed the former Commandant of the US Coast Guard's 2015 testimony before the U.S. Senate Committee on Commerce, Science, and Transportation's Subcommittee on Oceans, Atmosphere, Fisheries and Coast Guard. Admiral Zukunft stated that the "pristine environment" of the Great Lakes means "the tolerance for any oil spill, quite honestly, is going to be very low, which means the removal threshold needs to be set very high." ECF No. 37 at PageID.2251-2252 (quoting ECF No. 32-1 at PageID.1571). Admiral Zukunft also stated that he needed to review the ACP for the Great Lakes before further discussing with Senator Peters about a worst-case discharge in the Great Lakes. Plaintiffs also argued that Senator Peters continued to be concerned about a lack of preparedness in case of an oil spill in the Great Lakes and how the exercises are slightly artificial because all relevant boats are in the area for the exercise, which may not be the case during an actual oil spill. ECF No. 37 at PageID.2253.
Plaintiffs argue the Coast Guard is not entitled to deference because "[a]t issue here is not the Coast Guard's interpretation of the word `adequate,' but rather its failure to explain how it could have concluded that the NMACP is adequate to respond to an oil spill given repeated and unresolved concerns regarding ice cover and wave height." ECF No. 46 at PageID.2399. Plaintiffs summarize their argument at the end of their reply,
Defendant Coast Guard counters with its own motion for summary judgment. ECF No. 42. The Coast Guard explains that it "considered both of these factors [ice and high waves and] ELPC's argument fails to recognize that the Coast Guard's obligation is to ensure that the Plan is adequate — sufficient for the specific requirements — and does not necessarily have to match ELPC's ideal response." ECF No. 42 at PageID.2332.
The Coast Guard explains that the definition of "adverse weather" in the NMACP includes ice as a factor and the Coast Guard routinely responds to oil spills in the winter. "Cold climate conditions, including
The Coast Guard argues Plaintiffs misconstrue the term "adequate" from the Clean Water Act and instead are seeking perfection. ECF No. 42 at PageID.2343-2344. Even though ice-breakers may be located in other parts of the Great Lakes during an oil spill, the Coast Guard argues there are (1) on shore and near shore events that could occur while the ice-breaker moves toward the Straits and (2) "Enbridge has an approved facility response plan that is required to identify and provide personnel and equipment to remove to the maximum extent practicable a worse case discharge" which means Enbridge, not the Coast Guard, has the "onus of conducting the cleanup." ECF No. 42 at PageID.2345.
The Coast Guard has a similar argument for the high wave conditions that concern Plaintiffs. The Coast Guard argues that "[w]aiting for high wave conditions to abate — which is an environmental factor entirely outside the Coast Guard's control — can delay some open-water response actions, but does not render the response insufficient" in part due to the on shore and near shore activities that can be conducted while waves are high. ECF No. 42 at PageID.2347-2348.
The Coast Guard summarizes its argument in its reply stating,
Intervenor-Defendant Enbridge also filed a motion for summary judgment. ECF No. 44. Enbridge focuses on the fact that Enbridge's Facility Response Plan, approved by the Pipeline Hazardous Materials
Enbridge also addresses Plaintiffs' high waves argument. Enbridge argues that the "fact that the Coast Guard acknowledges the difficulties it may face when implementing a response during high-wave conditions does not render the NMACP inadequate." ECF No. 44 at PageID.2380. Enbridge also reiterates that its own Facility Response Plan would be first implemented, followed by the ACP. Id. Enbridge argues that "Congress [did not] intend[] the Coast Guard to do the impossible." ECF No. 48 at PageID.2434. Enbridge asserts that the OPA does not require "the Coast Guard [to] guarantee an immediate response during any adverse weather, [because that] result [] is neither realistic nor required to meet the `adequate' standard." ECF No. 48 at PageID.2434.
Plaintiffs cite three cases in support of their motion, Anglers of the Au Sable v. U.S. Forest Services, Meister v. U.S. Department of Agriculture, and Kentucky Waterways Alliance v. Johnson. In Anglers of the Au Sable, the Forest Service was statutorily required to prepare an Environmental Impact Statement if the project would "significantly" affect the environment. Anglers of the Au Sable v. U.S. Forest Service, 565 F.Supp.2d 812, 815-16 (2008). Judge Lawson determined that the Forest Service's approval of proposed oil drilling in the Huron-Manistee National Forest was arbitrary because the Forest Service did not consider whether the plan would have a significant impact upon the unique recreational opportunities available in the forest, some effects of the project were highly uncertain, there was no discussion on the potential precedential effect of the decision, and there was an inadequate biological assessment of the project on an endangered species. Anglers, 565 F. Supp. 2d at 816. Combined, these four concerns "raise[d] substantial questions about the significance of the proposed project." Id. at 815-16. Accordingly, the Forest Service's decision did not meet the statutory standard and was arbitrary and capricious. Plaintiffs argue that similar to the Forest Service, the Coast Guard did not consider or did not sufficiently consider the impact of ice and high waves on a WCD from Line 5. However, as the Coast Guard explains, the record includes multiple references to exercises in waters with ice, with the additional efforts that can be implemented from shore, if needed. The Coast Guard's conclusion that ice and high waves would make the recovery process more difficult is not the equivalent of the Coast Guard disregarding the ice and high wave conditions. This case is distinguishable from Anglers of the Au Sable.
In Meister v. U.S. Department of Agriculture, the Sixth Circuit held that the U.S. Department of Agriculture's "reasons for keeping pre-designation and club trails open to snowmobile use [but not considering cross-country skiers] [was] arbitrary" because it did not comply with a statutory mandate to minimize conflicts between
Finally, in Kentucky Waterways Alliance v. Johnson, the Sixth Circuit held that it could not review the EPA's decision regarding Kentucky's water regulations because the "EPA's decision document avoids answering" a key question — how much the water quality is impacted by the total amount of discharge, not just how many discharge exemptions are given. 540 F.3d 466, 492 (6th Cir. 2008) (J. Cook concurring). Plaintiffs argued that "[a]lthough [the] Coast Guard may list resources to respond, it leaves out of the NMACP resources that were crucial in its exercises, and the Coast Guard fails to explain why those resources were disregarded. It is unreasonable for the Coast Guard and Enbridge to suggest that this Court can reasonably discern why the Coast Guard concluded the NMACP is adequate to respond to a worst case discharge even though the NMACP lacks a plan for ice breaker delay or high waves." ECF No. 46 at PageID.2406.
However, the NMACP did not "leave out" a plan in case of ice or high waves. The NMACP includes equipment, plans, and options for addressing an oil spill that occurs in any weather, which includes icy waters or high waves. ECF No. 32-2 at PageID.2077-2084. And the record includes numerous exercises where ice breakers were not the only method used to control the simulated oil spill. See ECF No. 32-1 at PageID.1320 et seq. The NMACP even explains that "measures to protect life, mitigate further damage to the environment, and stabilize the situation" are the priorities of the emergency response branch. ECF No. 32-2 at PageID.2047. The Coast Guard summarizes their options as follows,
Another case cited by all parties is Motor Vehicle Manufacturers Association v. State Farm. The Supreme Court found
The APA provides an arbitrary and capricious standard for judicial review of agency decisions. 5 U.S.C. § 706(2)(A). Plaintiffs' argument that Defendant Coast Guard failed to consider or did not sufficiently analyze the effect ice and high winds would have on a worst case discharge from Line 5 fails. As highlighted above, the record includes abundant references to ice and high wave conditions. In addition, multiple ice recovery technologies and tools do not require an ice breaker. Simply, because recovery of an oil spill during icy or windy conditions may take longer does not mean the Coast Guard's approval of the NMACP was arbitrary and capricious. It simply means it does not meet the perfection standard Plaintiffs' desire. As the OPA states, oil spills are simply a part of life and the purpose of the OPA was to reduce the likelihood of future spills and ensure sufficient recovery mechanisms exist for when they undoubtedly occur. See e.g., Oil Pollution Act of 1990, Pub. L. No. 101-380, § 5002.
The Coast Guard has provided sufficient evidence that they considered the possibility of ice and high waves if a worst-case discharge were to occur. The Coast Guard's approval of the NMACP in 2017 was not arbitrary and capricious, did not violate the APA or the OPA, and therefore the Coast Guard's motion for summary judgment will be granted and Plaintiffs' motion for summary judgment will be denied.
Enbridge's central argument that their resources identified in their facility plan are exhausted prior to the use of the ACP is accurate, but irrelevant to the current case. Even though Enbridge's facility plan must be referenced first, it does not lower the Coast Guard's burden to adopt an ACP that will adequately address a WCD. However, Enbridge successfully argued the Coast Guard's approval of the ACP was not arbitrary and capricious because the Coast Guard did consider the difficulties that could be caused by ice and/or high waves during a WCD, and therefore, Enbridge's motion for summary judgment will be granted.
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