Environmental Law: Pipeline; NEPA; Endangered Species Act Clean Water Act: Nationwide Permit

摘要

For the underlying facts of this case see Sierra Club v. United States Corps of Engineers, 990 R Supp.2d 9,183 0.&G.R. 115 (D.D.C. 2013). After denying the plaintiffs' request for a preliminary injunction, the defendants tiled various dispositive motions seeking to dismiss all of the plaintiffs' claims. At the time of this hearing, the Corps has confirmed that as to the portion of the FS Pipeline underlying the waters of the United States, the pipeline is entitled to a national permit in light of its planned mitigation efforts which will minimize adverse environmental impacts. The BIA conducted an environmental assessment and issued a Finding of No Significant Impact as to the crossing of native American lands. Finally, as to the federal lands governed by the Corps, the Corps granted the easement permits after assessing the environmental impact solely on the federal lands to be burdened by the easement. None of the federal agencies, including the FWS which prepared a biological opinion, considered the cumulative effects of the FS Pipeline in its entirety. The court grants the Rule 12(b)(6) motion of the Pipeline and Hazardous Materials Safety Administration (PHMSA) because the pipeline operator has not yet submitted either approval of an oil spill response plan or a request to operate without such an approved plan. Since there is no decision-making process in place, there obviously cannot be any duty under NEPA to perform an environmental review. The critical issue for the court is whether there is a duty to evaluate the non-federal portions of the FS Pipeline. The court concludes that neither the Corps' verification of the application of the CWA general permit procedure nor the FWS' preparation of a biological opinion and incidental take statement constitute major federal actions which would trigger a mandatory environmental review. Part of the definition of a major federal action is that the action be subject to federal control and responsibility. As to the FS Pipeline that is located on private lands, there is no federal control or responsibility. Additionally, the use of the CWA's general permit procedure is not the same as individualized permits which may trigger some type of NEPA review. The court also repeats its analysis from the preliminary injunction decision that there is no connected federal agency action that applies to the FS Pipeline project. Thus the court dismisses all of the plaintiffs' claims against all of the federal agency defendants.