Sierra Club, Inc. v. Bostick, 787 F.3d 1043 (10th Cir. 2015) (holding that by issuing Nationwide Permit 12 and verifying that the construction of the TransCanada pipeline was covered under the permit, the United States Army Corps of Engineers did not violate the National Environmental Policy Act, the Clean Water Act, or its own nationwide permit).
The U.S. Army Corps of Engineers (“Corps”) has the authority, under Section 404(e) of the Clean Water Act, to issue nationwide permits authorizing activities that involve the discharge of dredged material into waters and wetlands. The Corps issued a nationwide permit, Nationwide Permit 12 (“Permit”), which permitted anyone to build utility lines in waters as long as the construction did not result in a loss of greater than one-half acre of water for each single and complete project.
TransCanada Corporation (“TransCanada”), sought to build the Gulf Coast Pipeline (“Pipeline”), an oil pipeline which would cross 2,000 waterways and expand across 485 miles. The Corps verified, in several letters, that the Permit permitted construction of TransCanada’s pipeline. Based off the Corp’s verification, TransCanada constructed, completed, and began using the Pipeline.
Concerned about the Pipeline’s effect on the environment, Sierra Club, Inc., Clean Energy Future of Oklahoma, and East Texas Sub Regional Planning Commission (collectively “the environmental groups”) challenged the Corps’ authority to issue Nationwide Permit 12. The United States District Court for the Western District of Oklahoma (“district court”) entered judgment in favor of the Corps. The environmental groups appealed to the United States Court of Appeals, Tenth Circuit (“Court”). The environmental groups asserted three major claims on appeal: (i) that the Corps violated the National Environmental Policy Act (“NEPA”) when it issued the Permit and letters without considering the risk of oil spills and the cumulative impacts on the environment; (ii) that Nationwide Permit 12 violates Section 404(e) of the Clean Water Act because it permits activities that cause more than minimal environmental impacts and because it defers a part of the minimal-impact determination to project-level personnel; and (iii) that the Corps violated its own Permit when it failed to conduct an analysis of the Pipeline’s cumulative effects on the environment.
The Court first addressed the claim that the Corps violated NEPA when it failed to consider the risks of oil spills and the Pipeline’s cumulative impacts. The Court held that the environmental groups waived their NEPA claims. The Court noted that the Corps met the NEPA requirements because, under NEPA, no further analysis is required beyond an environmental assessment if the assessment indicates that the environmental impact of the proposed action is insignificant. Further, the Court noted that a party challenging NEPA compliance must raise any relevant objections to the proposed project during the public comment period. A party waives its claim if it does not raise it during such period, unless the environmental assessment’s flaw is an obvious flaw or the issue is otherwise brought to the agency’s attention.
Additionally, the Court analyzed whether the risk of an oil spill was an obvious flaw in the assessment. The Court determined that the environmental groups were required, and failed, to show that the Corps’ assessment for the construction, maintenance, and repair of utility lines contained an obvious flaw. The Court found that the Corps appropriately considered the impacts from the construction of the Pipeline—the permitted activity—and not the impact associated with operation of the Pipeline, which fell under the authority of other agencies. Additionally, the Court noted that even if the Corps knew about the risk of oil spills from other sources, it made no difference because the duty to assess that risk belonged to another agency. Second, the Court addressed whether the environmental groups waived their claim that the Corps violated NEPA by failing to consider the pipeline’s cumulative impact. The Court held that the environmental groups waived their claim because no commentator raised this objection during the relevant public comment period.
Next, the Court analyzed the environmental groups’ argument that NEPA required the Corps to conduct an environmental analysis before issuing the verification letters to TransCanada, because the letters constituted “major Federal actions.” The Court disagreed with the environmental groups and held that the Corps complied with NEPA. The Court noted that NEPA requires agencies to conduct an analysis of potential impacts of all major Federal actions, but that the letter would only constitute a “major Federal action” if such verification resulted in a significant impact. The Court found that the Corps considered the impact of the construction of an oil pipeline when it issued Nationwide Permit 12, and that the letters only verified that TransCanada’s actions were covered by the Permit. Therefore, the Court held there was no need for the Corps to conduct a second environmental assessment.
The Court then considered the environmental groups’ argument that the Corps violated the Clean Water Act when it issued Nationwide Permit 12. The environmental groups argued the Permit violated the Clean Water Act in two ways: (i) because the Permit allows activities that have more than minimal environmental impacts; and (ii) because it defers a part of the minimal-impact determination to project-level personnel. The Court held that the Corps did not violate Section 404(e) when it issued Nationwide Permit 12 because it used its long-standing practice for assessing impacts based on its technical expertise. The Court found the environmental groups failed to show that the Corps’ test did not adequately control aquatic impact.
The Court then considered the Corps’ interpretation of Section 404(e) as allowing the Corps to use project-level personnel in portions of the minimal-impact analysis. When analyzing the case under Chevron, the Court noted that there was no direction from Congress as to whether assigning project-level personnel such duties is permissible. Because Congress had not directly spoken on the issue, the Court determined that the Corps’ interpretation of Section 404(e) was permissible because nationwide permitting is complicated and the Corps’ interpretation provided a reasonable safeguard from unforeseen impacts. The Court reasoned that the Corps recognized that it could not predict every potential use of Nationwide Permit 12, but that it made an assessment of all predictable uses—including construction of an oil pipeline—so the Corps did not need to conduct a new environmental analysis. Additionally, the Court noted that the use of project-level personnel did not affect the public’s ability to comment on the proposed permits because the Corps prepares a written impact evaluation of authorized activity; it only defers aspects of the evaluation that it cannot practically undertake before the start of a project.
Lastly, the Court addressed the environmental groups claim that the Corps violated its own Permit when it failed to document its cumulative impact analysis in the verification letters and in its administrative records regarding the analysis. The Court held that there was no violation because the Corps has never required district engineers to include the analysis in a verification letter, as long as the record supported the letter. The Court found that in this case the record included sufficient facts to support that the district engineers considered cumulative impacts.
Therefore, the Court found that the environmental groups waived their NEPA claims by failing to object during the appropriate public comment period. The Court rejected the remainder of the environmental groups’ arguments. The Court held that, by issuing Nationwide Permit 12 and verifying the construction of TransCanada’s pipeline under the Permit, the Corps did not violate NEPA, the Clean Water Act, or its own Permit.
Accordingly, the Court affirmed the district court’s decision.
The featured image is of the Trans-Alaska Pipeline crossing the South Fork Koyukuk River. The image is part of the public domain.