June 27, 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.

Tenth Circuit: BLM’s Decision to Grant Grazing Permit Not Arbitrary and Capricious

The Tenth Circuit Court of Appeals published its opinion in Western Watersheds Project v. Bureau of Land Management on Tuesday, July 23, 2013.

Petitioner-Appellant Western Watersheds Project (“WWP”), a nonprofit public interest organization, challenged a Bureau of Land Management (“BLM”) decision to grant a 10-year grazing permit to LHS Split Rock Ranch, LLC (“Split Rock”) for four federal public land allotments in central Wyoming (“the Split Rock allotments”). Split Rock is a Delaware limited liability company that operates a ranch in central Wyoming. WWP asserted that BLM’s decision to grant the grazing permit was arbitrary and capricious because BLM had previously concluded that past grazing was a substantial cause of serious environmental degradation on the Split Rock allotments. The district court had granted summary judgment in favor of BLM and WWP appealed. Split Rock responded as Intervenor-Appellee.

The Tenth Circuit’s standard of review under the APA had to be very deferential. A presumption of validity attaches to agency action and the burden of proof rested with WWP.

WWP raised two issues on appeal. First, it argued that the Environmental Assessment (EA) failed to evaluate a reasonable range of alternatives as required under the National Environmental Policy Act (NEPA). Second, it argues that BLM failed to take the required “hard look” at the potential environmental consequences of its actions. After discussing each of these issues, the Tenth Circuit concluded that BLM’s decision was not arbitrary and capricious.

The Tenth Circuit noted that WWP raised serious questions about BLM’s decisions regarding the Split Rock grazing permit that made the case difficult even under the highly deferential review standard. The record revealed troubling problems with the Split Rock allotments, and even BLM implicitly acknowledged that its Proposed Decision was unlikely to remedy these problems quickly. Nevertheless, it was not within the Court’s authority to resolve whether BLM selected the best or wisest option, and Court could not substitute its judgment for that of the BLM.

WWP argued that the (EA) failed to evaluate a reasonable range of alternatives as required by NEPA because it analyzed only three alternatives. WWP pointed to two problems: failure to analyze the No Action alternative and failure to consider an aggressive, i.e., environmentally protective, alternative. WWP argued that BLM was required to include a detailed analysis of the No Action alternative under 40 C.F.R. § 1502.14. The problem was that § 1502.14 did not apply. Further, the Court found BLM’s effort to balance competing objectives sufficient to explain its failure to pursue aggressive environmentally protective alternatives. The Court could therefore not conclude that the range of alternatives BLM selected rendered the EA arbitrary and capricious.

Next WWP argued that the EA failed to take a “hard look” at the environmental consequences of its Proposed Decision as required by NEPA. Specifically, WWP argued that the EA failed to take a hard look at carrying capacity (maximum stocking rate possible without inducing damage to vegetation or related resources) and at the effects of its own Proposed Decision. Mindful that its deference is most pronounced with respect to technical or scientific matters within the agency’s area of expertise, the Tenth Circuit could not say that it was arbitrary and capricious for BLM to conclude that the stocking level in the Proposed Decision would not exceed carrying capacity. The Court’s review of the EA and the Proposed Decision indicated that BLM analyzed the various components of the plan sufficiently to meet NEPA’s hard look requirement and did not act arbitrarily or capriciously.


Tenth Circuit: National Park Service Did Not Violate NEPA By Excluding Wolf Introduction For Elk Management in RMNP

The Tenth Circuit published its opinion in WildEarth Guardians v. National Park Service on Wednesday, January 9, 2013.

WildEarth Guardians (WildEarth) filed suit in federal district court challenging the National Park Service’s (NPS) elk and vegetation management plan and the related final environmental impact statement for Rocky Mountain National Park. WildEarth alleged the NPS violated the National Environmental Policy Act (NEPA) by failing to include the reintroduction of a naturally reproducing wolf population as one of the alternatives considered in the environmental impact statement. WildEarth also alleged the agency’s proposal to allow volunteers to assist the agency in reducing the elk population violated the Rocky Mountain National Park Enabling Act (RMNP Act).

The Tenth Circuit held that the NPS did meet NEPA’s and the APA’s requirements. The NPS discussed its reasons for rejecting the natural wolf alternative and “drew a rational connection between these reasons and its conclusion by examining the data in the record, consulting experts at its March 2005 meeting on wolf reintroduction, and repeatedly explaining why it excluded the natural wolf alternative from its EIS.”

The court also held that while the RMNP Act prohibits hunting in RMNP, allowing non-NPS personnel to shoot elk did not violate that prohibition as culling is not hunting. The court affirmed the district court.

Tenth Circuit: Environmental Groups’ CWA and NEPA Challenges to US Army Corps of Engineers § 404 Permit Issuance Fail

The Tenth Circuit issued its opinion in Hillsdale Envtl. Loss Prevention, Inc. v. US Army Corps of Engineers on Wednesday, November 28, 2012.

Several environmental groups (collectively, Hillsdale) brought challenges to a dredge and fill permit issued by the United States Army Corps of Engineers (Corps) under the Clean Water Act (CWA), 33 U.S.C. §§ 1251–1387, and the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321–4370H. The Burlington Northern Santa Fe (BNSF) sought the permit to build a new rail/truck terminal near Kansas City. The district court denied Hillsdale’s motion for an injunction and granted summary judgment for the Corps and BNSF.

The Tenth Circuit first determined that Hillsdale’s NEPA claims were not prudentially moot. Because the new facility was not yet complete, if the court found the Corps’s environmental assessment was defective and remanded, the Corps could require additional mitigation or make other changes to the permit.

The Tenth Circuit then reviewed the challenge to the § 404 Clean Water Act permit. A properly issued permit requires a determination by the Corps that “there is ‘no practicable alternative’ to the proposed activity ‘which would have less adverse impact on the aquatic ecosystem.’” The Corps had reviewed seven alternative sites and rejected them all. The Tenth Circuit held that to rebut the presumption that an eliminated alternative was available, the Corps need not provide a specific level of detail for each, but must take “a hard look at the proposals and reach[] a meaningful conclusion based on the evidence.” Given the minor to moderate anticipated impact to the affected waters, the Corps did not have to extensively document why each eliminated alternative was impracticable and had met the required standard.

The court also rejected Hillsdale’s argument that the Corps had a duty to identify additional practicable sites that did not contain jurisdictional waters. To be practicable, an alternative site would have to satisfy BNSF’s site selection criteria, which included a 30-mile limit from its existing site. The Corps had identified seven additional sites within this limited geographical area and rejected them all. Hillsdale failed to identify an alternative within this area that the Corps failed to review.

Hillsdale also argued that the Corps failed in its duty to independently evaluate BNSF’s site selection criteria, particularly the 30-mile limit. The court found the Corps had questioned the criteria and that it was not entitled to reject BNSF’s study-based determination that a site outside the limit would have an economic impact on its customers.

The Tenth Circuit held that the Corps successfully rebutted the presumption that less environmentally damaging practicable alternatives to the selected site existed, and its CWA analysis was not arbitrary and capricious.

Hillsdale challenged the Corps’s failure to prepare an environmental impact statement under NEPA after conducting an environmental assessment. BNSF had entered into an agreement with the Kansas Department of Health and Environment requiring it to monitor dust emissions and mitigate them if they exceeded specified levels. The court affirmed the Corps’s finding of no significant impact from fugitive dust emissions because of this agreement. The court also rejected Hillsdale’s challenge to the Corps’s handling of other air emissions and its lack of an EIS concerning water pollution to a lake and wells in the area. The court affirmed the district court and upheld the Corps’s issuance of the § 404 permit.