Wednesday, September 30, 2015

Court: NEPA review not needed for interstate crude oil pipelines

If you've ever wondered why some(*) interstate natural gas pipelines are required to have a review of the environmental impacts in the form of an Environmental Impact Statement (EIS), but hazardous liquids pipelines (crude oil, LPG, NGLs, refined products, etc) do not, here's the reason.

(* not exempted by the "API Loophole")

First highlights from the decision and order. Then, E+E article follows.

Analysis by BH: The federal courts are IMO taking a remarkable interpretation of the National Environmental Policy Act (NEPA):

While they are enforcing the obligation of doing a review of the environmental impacts of the federal government *issuing the permits*, they do not see that *building the pipeline* an inevitable consequence or "foreseeable impact" of issuing the permit. So no NEPA review for the pipeline.

Huh? Say what?

Opinion for the Court filed by Circuit Judge PILLARD:

QUOTE: The central question in this appeal is the scope of environmental review the National Environmental Policy Act (NEPA) required before a particular oil pipeline was built....

Where there is federal action, NEPA requires governmental review, with public input, of the full range of such action's reasonably foreseeable direct or indirect environmental effects.  Federal actions subject to NEPA include federal authorizations granted to private parties, such as oil pipeline construction companies....

On appeal, Sierra Club principally contends that the district court erred by failing to require the agencies to analyze and invite public comment on the environmental impact of the whole pipeline under NEPA, including the lengthy portions crossing private land and not otherwise subject to federal approvals....

We hold that the federal government was not required to conduct NEPA analysis of the entirety of the Flanagan South pipeline... The agencies' respective regulatory actions—in the form of easements, Clean Water Act verifications, and authorization to harm or kill members of endangered species without incurring liability under the Endangered Species Act (ESA)—were limited to discrete geographic segments of the pipeline comprising less than five percent of its overall length.  As explained below, the agencies were required to conduct NEPA analysis of the foreseeable direct and indirect effects of those regulatory actions.  However, on the facts of this case, the agencies were not obligated also to analyze the impact of the construction and operation of the entire pipeline.


________ E+E news ________

Judges rule NEPA study not needed for oil sands project

Robin Bravender, E&E reporter
Greenwire: Tuesday, September 29, 2015

Federal judges today denied environmentalists' challenge to a 600-mile pipeline carrying oil sands crude from Illinois to Oklahoma.

Attorneys from the Sierra Club and National Wildlife Federation told the court that the government should have conducted more thorough environmental assessments of Enbridge Inc.'s Flanagan South pipeline, but the three-judge appeals panel today rejected their argument.

Central to environmentalists' case was their contention that the government should have analyzed the entire pipeline under the National Environmental Policy Act, which requires federal agencies to consider the environmental impacts of their actions.

"We hold that the federal government was not required to conduct NEPA analysis of the entirety of the Flanagan South pipeline, including portions not subject to federal control or permitting," wrote Judge Cornelia Pillard, an Obama administration appointee.

The ruling could have broader impacts on environmental reviews for entirely domestic pipelines. However, it isn't likely to affect cross-border pipelines like the controversial Keystone XL oil sands project, because the State Department is required to perform comprehensive NEPA analyses for international pipelines, said Sierra Club attorney Douglas Hayes.

"We obviously disagree with the court's ruling, and we're still looking at what our next steps are," Hayes said today.

Before construction of the Enbridge pipeline, agencies were required to conduct environmental analyses of regulatory actions -- including easements over small swaths of federal land, dredge-and-fill activities at minor water crossings and the pipeline's impact on endangered species. Less than 5 percent of the pipeline's overall length was affected by those regulations.

"[T]he agencies were required to conduct NEPA analysis of the foreseeable direct and indirect effects of those regulatory actions," Pillard wrote. "However, on the facts of this case, the agencies were not obligated also to analyze the impact of the construction and operation of the entire pipeline."

Enbridge's pipeline crosses nearly 2,000 bodies of water or wetlands, and the Army Corps of Engineers granted it a general nationwide permit.

The Sierra Club argued that the corps erred by analyzing the crossings' cumulative impacts by region instead of considering the effects of the entire pipeline, but the judges rejected that claim. "The Corps was authorized to conduct its review on a regional rather than nationwide basis," the opinion says.

Judge Janice Rogers Brown, a Republican appointee, concurred with the majority's judgment today but said that route was "needlessly circuitous." No "amount of artful pleading" can convert "minor federal engagements into a 'connected action' that subjects the 580 miles of private pipeline to NEPA review," she wrote.

Flanagan South is now fully functional and can carry up to 600,000 barrels of crude per day. The vast majority of the pipeline -- more than 95 percent -- runs on private land. The other parts cross federally owned Army Corps or Bureau of Indian Affairs property, and there Enbridge was granted federal easements.

During oral arguments in April, Brown had questioned how much the government must do, since most of the pipeline lies on private land (Greenwire, April 9).

Click here to read the opinion in Sierra Club v. Army Corps of Engineers.

Posted by: Carl Weimer <>
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