Indigenous Environmental Network et al v. United States Department of State et al
Filing
210
PARTIAL ORDER ON SUMMARY JUDGMENT REGARDING NEPA COMPLIANCE re Plaintiffs Motions for Summary Judgment 139 145 and Federal Defendants and TransCanada Cross Motions for Summary Judgment. 172 170 The Court held a hearing on these motions on May 24, 2018. 194 . CONCLUSION AND ORDER; 1. Federal Defendants must supplement the 2014 final supplemental EIS to consider the Mainline Alternative route as approved by the Nebraska PSC. 2. The Court declines to vacate the Presidential Permit at this time. TransCanada has represented to the Court that construction of the pipeline will not begin until the second quarter of 2019. The Court directs Federal Defendants to file a proposed schedule to supplement the EIS in a manner that allows appropri ate review before TransCanadas planned construction activities. 3. The Court will consider further remedies if circumstances change that do not allow review of the supplemental EIS before TransCanadas planned construction activities. Signed by Judge Brian Morris on 8/15/2018. Associated Cases: 4:17-cv-00029-BMM, 4:17-cv-00031-BMM (TLO)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
INDIGENOUS ENVIRONMENTAL
NETWORK and NORTH COAST
RIVER ALLIANCE,
CV-17-29-GF-BMM
CV-17-31-GF-BMM
and
NORTHERN PLAINS RESOURCE
COUNCIL, et al.,
PARTIAL ORDER ON SUMMARY
JUDGMENT REGARDING NEPA
COMPLIANCE
Plaintiffs,
vs.
UNITED STATES DEPARTMENT
OF STATE, et al.,
Defendants
and
TRANSCANADA KEYSTONE
PIPELINE and TRANSCANADA
CORPORATION,
Defendant-Intervenors.
Plaintiffs Indigenous Environmental Network and Northern Plains Resource
Council (collectively “Plaintiffs”) bring this action against the United States
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Department of State and various other governmental agencies and agents in their
official capacities (“Federal Defendants”). Plaintiffs allege that the State
Department violated the Administrative Procedure Act (“APA”), the National
Environmental Policy Act (“NEPA”), and the Endangered Species Act (“ESA”)
when it published its Record of Decision (“ROD”) and National Interest
Determination (“NID”) and issued the accompanying Presidential Permit to allow
defendant-intervenor TransCanada Keystone Pipeline, LP (“TransCanada”) to
construct a cross-border oil pipeline known as Keystone XL (“Keystone”).
Plaintiffs have moved for summary judgment. (Docs. 139 & 145.) Federal
Defendants and TransCanada have filed cross motions for summary judgment.
(Docs. 172 & 170.) The Court held a hearing on these motions on May 24, 2018.
(Doc. 194.) The Court is prepared to rule on a portion of Plaintiffs’s motion for
summary judgment. The Court will rule on the remaining issues in a forthcoming
Order.
BACKGROUND
The Court detailed the background of this case in its Order regarding Federal
Defendant’s and TransCanada’s Motion to Dismiss for Lack of Jurisdiction. (Doc.
99.) The Court will only recite those facts that have arisen since its Order regarding
jurisdiction.
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The Nebraska Public Service Commission (“PSC”) denied TransCanada’s
application for its preferred route on November 20, 2017. (Doc. 104-1.) The
Nebraska PSC instead approved the “Mainline Alternative” route. Id. The Mainline
Alternative route goes through five different counties and crosses several different
water bodies than the original preferred route. Id. The Mainline Alternative route
also would be longer. This added length requires an additional pump station and
accompanying power line infrastructure. Id.
After the Nebraska PSC announced its decision, Plaintiffs notified Federal
Defendants that they needed to reinitiate ESA Section 7(a)(2) consultation on the
Mainline Alternative route to assess the potential effects of the new route on
endangered and threatened species. (Doc. 141-1.) Plaintiffs also requested that
Federal Defendants prepare a supplemental EIS. Id. Federal Defendants have taken
steps to reinitiate ESA Section 7(a)(2) consultation with the appropriate agencies,
including FWS. Federal Defendants have not committed, however, to
supplementing the EIS. Id.
LEGAL STANDARD
A court should grant summary judgment where the movant demonstrates
that no genuine dispute exists “as to any material fact” and the movant is “entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment remains
appropriate for resolving a challenge to a federal agency’s actions when review
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will be based primarily on the administrative record. Pit River Tribe v. U.S. Forest
Serv., 469 F.3d 768, 778 (9th Cir. 2006).
The APA’s standard of review governs Plaintiffs’s claims. W. Watersheds
Project v. Kraayenbrink, 632 F.3d 472, 481, 496 (9th Cir. 2011); Bennett v. Spear,
520 U.S. 154, 174 (1997). The APA instructs a reviewing court to “hold unlawful
and set aside” agency action deemed “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). A rational
connection must exist between the facts found and the conclusions made in support
of the agency’s action. Kraayenbrink, 632 F.3d at 481.
DISCUSSION
I.
Federal Defendants did not properly analyze Keystone’s
environmental impacts considering Federal Defendants did not
know Keystone’s final route through Nebraska.
Plaintiffs argue that the agencies could not properly analyze Keystone’s
environmental impacts without knowing its route through Nebraska. (Doc. 140 at
17.) NEPA serves as the “basic national charter for protection of the environment.”
40 C.F.R. § 1500.1(a). NEPA requires all federal agencies to prepare a “detailed
statement” for any “major Federal actions significantly affecting the quality of the
human environment.” 42 U.S.C. § 4332(2)(C).
This detailed statement, known as an environmental impact statement
(“EIS”), must describe the environmental impacts of the proposed action. 42
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U.S.C. § 4332(2)(C)(i), (ii). The EIS must include a “full and fair discussion” of
the effects of the proposed action, including those on the “affected region, the
affected interests, and the locality.” 40 C.F.R. §§ 1502.1, 1508.27(a). Further, for a
“site-specific action, significance would usually depend upon the effects in the
locale . . .” Id., § 1508.27(a). The agency must finally consider the “unique
characteristics of the geographic area” when determining the significance of an
action. Id., § 1508.27(b)(2). An agency also may be required to perform a
supplemental analysis “if significant new circumstances or information relevant to
environmental concerns and bearing on the proposed action or its impacts” arise
during the NEPA review. 40 C.F.R. § 1502.9(c)(1)(ii).
Plaintiffs further argue that Federal Defendants must address the Mainline
Alternative route pursuant to its NEPA obligations as it proves to be a “connected
action” to the proposed action. (Doc. 146 at 48.); 40 C.F.R. § 1508.25(a)(1). A
federal agency must consider connected actions together in a single EIS. Id. NEPA
defines connected actions as any of the following: those actions that “automatically
trigger other actions which may require environmental impact statements;” those
actions that “cannot or will not proceed unless other actions are taken;” or those
actions are interdependent parts of a larger action and depend on the larger action
for their justification.” 40 C.F.R. § 1508.25(a)(1). In determining whether two
actions are connected for the purposes of NEPA, a court must examine whether the
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two actions have “independent utility” or whether it would be “irrational, or at
least unwise, to undertake the first phase if subsequent phases were not also
undertaken.” Daly v. Volpe, 514 F.2d 1106, 1110 (9th Cir. 1975); Thomas v.
Peterson, 753 F.2d 754, 759 (9th Cir. 1985) (overruled on other grounds by
Cottonwood Environmental Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075, 1088-92
(9th Cir. 2015).
The Ninth Circuit in Thomas considered whether a road and a timber sale
were sufficiently related to require combined treatment in a single EIS that covered
the cumulative effects of each. Thomas, 753 F.2d at 757. The Forest Service
argued that it remained proper for it to consider separately the effects of the road
and the timber sale. Id. The Ninth Circuit recognized that administrative agencies
must be given considerable discretion in defining the scope of an EIS. The Ninth
Circuit further noted, however, that situations exist in which an agency must be
required to consider several related actions in a single EIS. Id. The failure to
consider several related actions in a single EIS would allow a project to be divided
into multiple actions, “each of which individually has an insignificant
environmental impact, but which collectively have a substantial impact.” Id. at
758. The road construction and the contemplated timbers sales were inextricably
intertwined as evidenced by the timber sales not being able to proceed without the
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road and the road not being built, but for the contemplated timber sales. Id. The
road and the timber sales qualified as connected actions. Id.
Federal Defendants argue that the Nebraska PSC did not approve Mainline
Alternative route until after the issuance of the Presidential Permit. (Doc. 173 at
31.) This decision from the Nebraska PSC proved beyond the control of Federal
Defendants and TransCanada. Id. Federal Defendants argue that NEPA imposes no
obligation on the Federal Defendants to prepare a supplemental analysis to address
the Mainline Alternative route when the EIS remained complete. (Doc. 185 at 15.)
Federal Defendants further argue that the language of the Presidential Permit
“clearly limits the State Department’s ongoing oversight to circumstances where
there is a ‘substantial change in the United States facilities,’ which are defined to
include only the 1.2 mile border segment.” Id. Federal Defendants finally contend
that any NEPA process that the State Department has begun in connection with the
Mainline Alternative route simply supports the Bureau of Land Management’s
right-of-way decision. Id.
TransCanada argues that the State Department possesses no obligation under
NEPA to review the impacts of the Nebraska PSC’s decision as there remains no
“ongoing major federal action” for the agency to take. Id. TransCanada contends
that the State Department had completed its federal action when it made its
national interest determination and issued the Presidential Permit. TransCanada
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relies heavily on Ctr. for Biological Diversity v. Salazar, 706 F.3d 1085, 1095 (9th
Cir. 2013), for the proposition that no ongoing major federal action exists that
could require supplementation once an agency action proves complete.
In Salazar, a mining company decided to resume mining operations after a
seventeen-year hiatus. Id. at 1088. Plaintiffs argued that BLM needed to perform a
supplemental EIS as the original EIS had become stale and outdated. The Ninth
Circuit determined that the major federal action at question, the approval of the
operation, remained complete when the BLM approved the project. Id. at 1095. No
ongoing major federal action existed to require NEPA supplementation. Id.
As an initial matter, it appears to the Court that Federal Defendants wrongly
suggest that information about the Mainline Alternative route postdated the State
Department’s issuance of the Presidential Permit. In fact, TransCanada included
the Mainline Alternative route as one of two alternatives in its February 16, 2017,
application to the Nebraska PSC. (Doc. 104-1 at 12, 58-59.) The State Department
knew, therefore, before it issued the Presidential Permit on March 23, 2017, that
the Nebraska PSC potentially could approve the Mainline Alternative route. This
contingency likely imposed an obligation on the Federal Defendants to supplement
the EIS to reflect the Mainline Alternative route.
Regardless of this contingency, Federal Defendants now possess the
obligation to supplement the EIS. The State Department retains discretion to
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review any changes to the project that might arise after the issuance of the
Presidential Permit. Federal Defendants argument that the Presidential Permit
applies only to the segment of the pipeline at the border proves unpersuasive as the
Presidential Permit states that that Keystone “must be constructed and operated as
described in the 2012 and 2017 permit applications, the 2014 EIS . . . “ Notice of
Issuance of a Presidential Permit, 82 Fed. Reg. 16467-02 (Apr. 4, 2017).
The Court further determined in an earlier Order that the State Department
remained obligated to comply with NEPA as it took final agency action when it
published the ROD/NID for Keystone. The Court viewed the State Department’s
preparation of the NEPA analysis associated with Keystone as recognition of its
legal obligations. (Doc. 99 at 14.) The Court specifically rejected TransCanada’s
contention that the Federal Defendants conducted the NEPA analysis for Keystone
“as an act of grace.” Id.
The Supreme Court has recognized an agency’s obligation to prepare a postdecision supplemental EIS when a project has not been fully constructed or
completed. Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 367-72. The
Supreme Court determined that “NEPA does require that agencies take a ‘hard
look’ at the environmental effects of their planned action, even after a proposal has
received initial approval.” Id. at 374. Marsh stands in contrast to Norton v. S. Utah
Wilderness Alliance, 542 U.S. 55, 72 (2004) (“SUWA”). The Supreme Court in
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SUWA determined that the approval of a land use plan constituted a major federal
action that required an EIS. Id. The major federal action remained complete,
however, when the plan was approved. Id.
The Ninth Circuit addressed the distinction between Marsh and SUWA in
Cold Mountain v. Garber, 375 F.3d 884 (9th Cir. 2004). The Forest Service issued
a special use permit to the Montana Department of Livestock to operate a bison
capture facility. Environmental groups alleged that the special use permit violated
NEPA as new information emerged after the Forest Service had issued the special
use permit. Id. at 891-92. The Ninth Circuit determined that the Forest Service
possessed no ongoing oversight or involvement of the special use permit after its
issuance. Id. at 894. There existed no ongoing major federal action. Id.
This case proves more akin to Marsh. Federal Defendants still retain a
meaningful opportunity to evaluate the Mainline Alternative route. The Mainline
Alternative route differs from the route analyzed in the EIS. The Mainline
Alternative route crosses five different counties. The Mainline Alternative route
crosses different water bodies. The Mainline Alternative route would be longer.
The Mainline Alternative route would require an additional pump station and
accompanying power line infrastructure. Federal Defendants cannot escape their
responsibility under NEPA to evaluate the Mainline Alternative route. Federal
Defendants first argued that it was too early to evaluate the Mainline Alternative
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route before the approval of the Presidential Permit. They now argue that it
remains too late to evaluate the Mainline Alternative route. NEPA requires a hard
look. Marsh, 490 U.S. at 367-72.
The Court further agrees that Federal Defendants must address the Mainline
Alternative route as it proves to be a “connected action” to the proposed action.
Similar to Thomas, the Mainline Alternative route represents an interdependent
part of the larger action of Keystone. Thomas, 753 F.2d at 759. The entire pipeline
remains interrelated and requires one EIS to understand the functioning of the
entire unit. Unlike Salzar, ongoing federal agency action remains. Salazar, 706
F.3d at 1095.
Federal Defendants have yet to analyze the Mainline Alternative route.
Federal Defendants possess the obligation to analyze new information relevant to
the environmental impacts of its decision. Other courts have recognized this
obligation. See Sierra Club v. Bosworth, 465 F. Supp. 2d 931, 939 (N.D. Cal.
2006). In Bosworth, the court required a post-decision supplemental EIS for a
timber harvesting project where the project had not been completed. Id. Federal
Defendants’ failure to supplement the 2014 EIS likewise violates its obligations
under NEPA. Thomas, 753 F.2d at 759; Bosworth, 465 F. Supp. 2d at 939.
Plaintiffs further argue that Federal Defendants possessed the obligation to
analyze Keystone under the ESA. (Doc. 140 at 17.) The ESA requires agencies to
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analyze the site-specific impacts of proposed actions. Under Section 7 of the ESA,
all federal “action agencies” must, “in consultation with” the Fish Wildlife and
Service, “insure” that the actions that they fund, authorize, or undertake are “not
likely to jeopardize the continued existence of any endangered species or
threatened species” or “result in the destruction or adverse modification” of critical
habitat. 16 U.S.C. § 1536(a)(2). The ESA requires agencies to evaluate which
species or critical habitats are present in the “action area,” which includes “all
areas to be affected directly or indirectly by the Federal action.” 50 C.F.R. §§
402.02, 402.12(a). The Court will address the ESA argument in a future Order.
CONCLUSION AND ORDER
1. Accordingly, IT IS ORDERED that Federal Defendants must supplement
the 2014 final supplemental EIS to consider the Mainline Alternative route
as approved by the Nebraska PSC.
2. The Court declines to vacate the Presidential Permit at this time.
TransCanada has represented to the Court that construction of the pipeline
will not begin until the second quarter of 2019. The Court directs Federal
Defendants to file a proposed schedule to supplement the EIS in a manner
that allows appropriate review before TransCanada’s planned construction
activities.
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3. The Court will consider further remedies if circumstances change that do not
allow review of the supplemental EIS before TransCanada’s planned
construction activities.
DATED this 15th day of August, 2018.
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