In a significant decision impacting federal review of energy pipeline projects, the D.C. Circuit on September 29 ruled that the U.S. Army Corps of Engineers was justified in not conducting a National Environmental Policy Act (NEPA) review of the entire length of a 593 oil mile pipeline. Sierra Club. v. Corps, ( No.14- 5205) ( D.C Circuit).
The Flanagan South ’s Embridge pipeline would carry crude oil from Illinois to Oklahoma. Four Corps regional offices issued Clean Water Act Nationwide Permit ( NWP) 12 verifications for the 1950 crossings of streams covering only 2.3 percent of the pipeline’s 593 mile route as well as approving easements to cross 1.3 miles of land under jurisdiction of the Bureau of Indian Affairs. The Sierra Club sued claiming that the Corps impermissibly conducted its analysis of the water crossings cumulative impacts by region rather than considering the pipeline as a whole and that its conclusion that the crossings would only have minimal adverse environmental effects was inadequately supported.
While Corps NEPA review was limited to regional impacts, FWS had prepared a Biological Opinion consultation examining the entire length of the pipeline and issued an incidental take statement (ITS) under the ESA setting out conditions to minimize the project’s impact on the Indiana Bat and American Burying Beetle.
In rejecting the Sierra Club’s arguments, the Court deferred to the Corps regulations limiting the Corps NEPA review only to those portions of the entire project over which the Corps has sufficient control and responsibility, noting that, despite its 593 mile length, the Corps only had regulatory control over a “negligible portion of the entire project.”
The court noted that Sierra Club offered no “persuasive explanation” as to why the portions of the pipeline outside the NWP 12 stream crossing verifications and easement approvals constituted “federal actions” requiring review of the entire pipeline length. The Court also found that the Corps had adequately assessed the cumulative impacts of the pipeline on a regional basis because the various Corps district managers had documented the scope of the proposed project within each district and identified specific mitigation techniques.
Finally, the Court found that the FWS ITS under the ESA was not, standing alone, a federal action triggering NEPA review for its entire length. Rather, the court upheld the Corps implementation of the ITS as conditions for the NWP 12 verifications on limited regional basis. in a significant footnote, the court noted that oil pipelines are “less regulated” than natural gas pipelines which require certification by the Federal Energy Regulatory Commission (FERC), suggesting that broader federal role may require a FERC NEPA review of their entire length which may be broader than the Corps review.
The ruling has significant implications for the Corps review of pending pipeline projects that are planned to transport oil and natural gas over long distances but are largely on private lands with only limited impacts to resources subject to Corps CWA permitting such as stream crossings. The decision indicates that Corps findings limiting the scope of its NEPA review will likely be given great deference if the Corps can document its limited role in permitting discrete project impacts to streams and wetlands even where the FWS conducts a section 7 review for the projects entire length.
Larry Liebesman Senior Advisor
Larry joined the Dawson team in 2015 after more than a decade as a litigator in the U.S. Department of Justice and a career at the law firm of Holland & Knight.
The views expressed here are those of the author and do not necessarily reflect the views of Dawson & Associates.