June 16, 2019

Tenth Circuit: Army Corps of Engineers Appropriately Considered Risks of Oil Pipeline Under Clean Water Act

The Tenth Circuit Court of Appeals issued its opinion in Sierra Club, Inc. v. Bostick on Friday, May 29, 2015.

The U.S. Army Corps of Engineers issued a nationwide permit (NWP 12) for construction of an oil pipeline pursuant to its permitting authority under § 404(e) of the Clean Water Act (CWA). TransCanada Corporation, relying on the permit and subsequent Corps verification letters, constructed the Gulf Coast Pipeline, a southern segment of the Keystone XL Pipeline, which traverses 485 miles and crosses approximately 2,000 waterways. Sierra Club, along with two other environmental groups, challenged the validity of NWP 12 and the verification letters, but the district court rejected the challenges.

On appeal, the environmental groups raised three sets of claims: (1) the Corps violated the National Environmental Policy Act (NEPA) by issuing NWP 12 without considering the risk of oil spills and the cumulative environmental impacts of the pipelines, and issued the verification letters without first conducting a NEPA analysis; (2) the Corps violated the CWA by authorizing activities with more-than-minimal environmental impact and unlawfully deferring the minimal-impact analysis to project management personnel; and (3) the Corps issued NWP 12 without analyzing cumulative effects and documenting the analysis. The Tenth Circuit addressed and rejected each set of claims.

The Tenth Circuit first addressed the NEPA claims. The environmental groups argued the Corps failed to consider the risks of oil spills in its environmental analysis, and failed to conduct an environmental analysis when it verified the pipeline was permissible under the nationwide permit. The Tenth Circuit found the environmental groups’ arguments that the Corps failed to consider the risk of oil spills and the cumulative impacts of the pipelines waived, since the groups did not raise these concerns during the comment period. The environmental groups argued that the risk of oil spills is obvious, but they instead were required to show an obvious flaw in the Corps’ evaluation, which they did not do. The Tenth Circuit found this argument waived. The groups also pointed to comments about the Keystone XL pipeline about oil spills, but the Tenth Circuit noted these comments were directed to other agencies, and in those comments no one questioned the Corps’ assessment. Similarly, the Tenth Circuit found the environmental groups’ arguments about the cumulative impacts of the pipeline waived, since they were not raised in the comment period. Although the cumulative effects were discussed in other contexts, they were never mentioned regarding the Corps’ work in dry land areas.

Next, the environmental groups argued the Corps should have prepared a NEPA analysis for the entire pipeline before issuing the verification letters. The Tenth Circuit disagreed, finding the verifications did not constitute “major federal action” necessitating NEPA review, since the verifications did not result in significant impact. The Tenth Circuit held that the Corps neither acted like a “gatekeeper” nor approved the whole project. Instead, it simply verified that TransCanada’s work was covered by NWP 12. The groups next contend the Corps should have evaluated the impacts of the whole project because the agency had “control and responsibility” over the project. However, the Tenth Circuit found the appendix to NEPA relied on by the environmental groups was inapplicable, and even if it had applied the Corps did not have “control and responsibility” over the entire project.

The Tenth Circuit next addressed the environmental groups’ argument that the Corps’ issuance of NWP 12 violated § 404(e) of the Clean Water Act by authorizing linear projects with significant environmental impact and by deferring part of the minimal-impact analysis to project-level personnel. Again disagreeing, the Tenth Circuit found that the Corps’ conclusion regarding the minimal environmental impacts involved the agency’s technical expertise, and the environmental groups were required to show the agency’s determination lacked any substantial basis in fact, which they did not do. The Corps, in analyzing the future impacts of dredge-and-fill activity, required project-level personnel to ensure that particular activities would not have more than a minimal impact on the aquatic environment. These were additional safeguards, and the Tenth Circuit found no error in the Corps’ delegation.

Finally, the Tenth Circuit addressed the environmental groups’ argument that the Corps violated the terms of its own permit by failing to document analysis of cumulative impacts in the verification letters or administrative record. The Tenth Circuit found no error. Although the district engineers were required to analyze cumulative impacts, they need not document their analysis in the verification letters. The Tenth Circuit noted that although the letters did not contain the analysis, it appeared in the record, and the Corps’ issuance of the verifications was not arbitrary or capricious.

The Tenth Circuit affirmed the district court’s judgment.

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