Court: Key Environmental Law Doesn't Apply to Part of Enbridge Keystone XL "Clone"

08/19/2014 09:17 pm ET Updated Dec 06, 2017

Cross-Posted from DeSmogBlog

Approved by the U.S. Army Corps of Engineers via a controversial regulatory mechanism called Nationwide Permit 12 (NWP 12), Judge Kentanji Brown Jackson, an Obama-appointed judge, ruled NWP 12 was not a federal government "action." Thus, Brown posited that Enbridge did not need to use the National Environmental Policy Act (NEPA) regulatory process and NWP 12 was up to snuff.

The case pitted the Sierra Club and the National Wildlife Federation (NWF) against the Army Corps of Engineers and Enbridge and has lasted for just over a year, with the initial complaint filed on August 13, 2013 (Case #: 1:13-cv-01239-KBJ). 

Sierra Club and NWF submitted the recent precedent-setting Delaware Riverkeeper v. Federal Energy Regulatory Commission (FERC) case as supplemental authority for Sierra Club v. U.S. Army Corps of Engineers on the day that decision was handed down. 

But Jackson brushed it aside, saying it doesn't apply to Flanagan South, despite the fact that the Delaware Riverkeeper v. FERC decision said that a continuous pipeline project cannot be segmented into multiple parts to avoid a comprehensive NEPA review.

Although Enbridge will operate this project as a single pipeline, Flanagan South was broken up into thousands of "single and complete" projects by the Army Corps of Engineers. This helped Enbridge skirt the requirement of a more comprehensive and public-facing NEPA review, which involves public hearings and a public comment period.

"Here, not only was there no NEPA analysis of this massive project, there was never any public notice or opportunity for involvement before it was constructed across four states," Sierra Club attorney for the case, Doug Hayes, told DeSmogBlog. "The entire thing was permitted behind closed doors."

For all intents and purposes, then, Flanagan South is a fait accompli and tar sands diluted bitumen ("dilbit") will begin pumping through it as summer turns to fall. 

Private Company, Hands-Off Approach

At 48-pages, Jackson's ruling centers around a key central argument: Enbridge is a private company and Congress has never given executive agencies the green light to regulate domestic oil pipelines.

Photo Credit: Judge Kentanji Brown Jackson; Photo Credit: Wikimedia Commons

"Congress has not authorized the federal government to oversee the construction of private domestic oil pipelines; consequently, Enbridge has undertaken to build the planned [Flanagan South] Pipeline largely on its own, primarily by securing easements from the landowners who own the property over which the pipeline will operate," wrote Jackson. 

Judge Jackson said that a laissez-faire governmental approach to authorizing pipelines is appropriate, according to her reading of the law on the books. 

"[T]he gist of the Court's conclusion is that Plaintiffs are wrong to insist that any federal agency had an obligation under NEPA or any other statute to conduct an environmental review of the impact of the entire [Flanagan South] Pipeline before Enbridge broke ground on the project," she opined.

"Connected Action" Doctrine

Another key legal precedent discussed in Jackson's ruling was Delaware Riverkeeper v. FERC, covered by DeSmogBlog in June.

She weighed the merits of the "connected action" doctrine as applied to a lack of NEPA review for Flanagan South, writing it does not apply to the pipeline because the Army Corps of Engineers has no obligation to do a NEPA review in this case. 

"In [Delaware Riverkeeper v. FERC] the connected actions rule applied because the courts were required to assess whether the agencies had improperly limited the scope of the review of actions within their own jurisdiction--a determination that is fundamentally different from the question Plaintiffs present here, i.e., whether [NEPA] must be expanded to include an environmental review of actions completely outside the agencies' purview," Jackson wrote.

Army Corps Abusing NWP 12?

Hayes told DeSmogBlog back in November that the Army Corps of Engineers' intricate involvement in permitting massive tar sands pipeline projects is at the root of the problem.

Sierra Club Staff Attorney Doug Hayes; Photo Credit: Sierra Club

"The Corps is abusing the nationwide permit program. Nationwide permits were intended to permit categories of projects with truly minimal impacts, not tar sands oil pipelines crossing several states," said Hayes"What the Corps is doing is artificially dividing up these massive pipelines, treating them as thousands of individual projects to avoid NEPA compliance."

Congress Passed NEPA in 1969

The greatest irony of Jackson's decision is that Congress passed NEPA -- known by legal scholars as the "environmental Magna Carta" -- in 1969, and it was signed into law by President Richard Nixon in 1970.

"Plaintiffs...mistakenly view a mechanism for instituting federal evaluation and oversight of a private construction project that Congress has not seen fit to authorize the federal government to regulate," Jackson wrote in the ruling's conclusion. 

But Hayes argues that Congress has "seen fit to authorize the federal government to regulate" huge pipeline projects like Flanagan South by passing NEPA back in 1969.

"Congress has given federal agencies authority to utilize NEPA for private projects," Hayes stated in an email. "NEPA was written so as to apply to private projects that are permitted, approved, regulated, or financed either in whole or in part by federal agencies. There is a long history of requiring NEPA for private projects, including oil pipelines like Flanagan South."

KXL South Appeal in the Works, Flanagan South Too?

At the end of the day, the legal debate around Flanagan South is an academic exercise, as the line and the rest of Enbridge's "Keystone XL clone" pipeline system will open for business in October as another vein for the tar sands "carbon bomb."

Meanwhile, the permitting of TransCanada's Keystone XL southern leg -- rebranded the Gulf Coast Pipeline Project -- is also under appeal by Hayes and his co-counsel for that case (Case #: 5:12-cv-00742-R). Like with Flanagan South, Keystone XL South opened for business thanks to NWP 12.

As previously reported on DeSmogBlog, the American Petroleum Institute (API) entered the case as an intervenor on May 16, represented by corporate law firm Hunton & Williams. At the federal level, Hunton & Williams lobbies on behalf of Koch Industries, a company with a major stake in tar sands leases and refining.

Hunton & Williams has already issued a client alert on the Delaware Riverkeeper v. FERC case, portending what will likely be aggressive attempts to weaken or overturn a ruling that already has received a counter-punch by Judge Jackson.

Hayes says Sierra Club is considering appealing Jackson's decision, as well. 

One thing seems certain: the NEPA issue will be duked out in federal courts for years to come.