Gravel2Gavel Construction & Real Estate Law Blog
Last year, the U.S. District Court for the District of Columbia denied a request for a preliminary injunction to stop the construction of a domestic oil pipeline known as the Flanagan South Pipeline that is to be constructed under the supervision of Enbridge Pipelines, LLC. In that decision, reported at 990 F. Supp. 2d 9 (D.D.C. 2013), the court determined that the environmental plaintiffs were unlikely to succeed on the merits of their argument that the federal defendants had violated their obligations under National Environmental Protection Act (NEPA), the Clean Water Act (CWA) or the Administrative Procedure Act (APA). On August 18, 2014, the court reviewed various pending motions for summary judgment, and again concluded that the plaintiffs’ case was without merit. The latest decision is Sierra Club, et. al. v. U.S. Army Corps of Engineers, et. al.
In the latest decision, the plaintiffs allege that the federal agencies that have approved isolated segments of the pipeline (which is being constructed almost wholly on private lands for the length of a nearly 600-mile pipeline that will transport tar sands crude oil from Pontiac, Illinois to Cushing, Oklahoma) violated their obligations under the law by not conducting a comprehensive NEPA review of the entire pipeline. The court again disagreed with this argument, noting that no federal agency has interpreted NEPA to be a mandate to conduct such a comprehensive environmental review on the basis of their authority to review the environmental impacts on only 28 miles of federal land when the vast majority of the pipeline will cross privately-held lands by virtue of agreements negotiated with the private land-owners. Accordingly, the court agreed that this is not a “major federal action” requiring a NEPA review: “neither the Corps’ [CWA] verifications nor the Fish and Wildlife Service’s Biological Opinion and Incidental Take Statement qualify as ‘major federal actions’ under the circumstances presented”.
The court also determined that its decision is consistent with the recent DC Circuit ruling in Delaware Riverkeeper Network v. FERC, No. 13-1015, 2014 WL 2535225, at *8 (D.C. Cir. June 6, 2014), where the court of appeals held that Federal Energy Regulatory Commission (FERC) could not segment its environmental reviews where FERC was the sole permitting authority.
In the future, the U.S. Department of Transportation may be asked to review an oil spill response plan for the pipeline as a whole, but that day has not yet arrived.