Construction of Pipeline not Major Federal Action under NEPA

Sierra Club v. United States Army Corps of Engineers
(2013) __ F.Supp.2d ___

The D.C. District Court issued a decision in Sierra Club v. U.S. Army Corps of Engineers on November 13, 2013, denying the plaintiff Sierra Club's request to stop the construction of the privately owned Flanagan South oil pipeline by Enbridge. Sierra Club challenged the construction of the pipeline on the basis that wetland delineation constituted a major federal action triggering environmental review under the National Environmental Protection Act ("NEPA"). The court's decision is important because it constrains the scope of what constitutes a major Federal action under NEPA.

The pipeline was constructed across 28 miles of federal land, and 560 miles of private land. Although federal agencies have jurisdiction over federal land, the federal government does not have permitting authority over domestic pipelines, because "Congress has not authorized the federal government to oversee construction of a domestic oil pipeline." (p. 4.) To the extent the pipeline was to be located on the 28 miles of federal land, Enbridge was required to obtain easements, verification of compliance with permits under the Clean Water Act, and assurance that the pipeline will not jeopardize species protected by the Endangered Species Act. Sierra Club, however, argued that the federal agencies were required to prepare a NEPA review on the entire pipeline, not just the portion located on federal land, before construction.

The court rejected Sierra Club's argument, and held they "significantly overstated the degree of federal involvement in the FS Pipeline in an attempt to shoehorn this essentially private project into the NEPA statute." (p. 39.) The Court went on to distinguish between a situation "where there is some federal involvement necessary in a piece of a project" from one where "federal action is a legal condition precedent to accomplishment of an entire nonfederal project." (p. 41.)

The court held that the pipeline's use of land under federal jurisdiction constituted "minor pieces of federal involvement in a nearly 600-mile pipeline," and therefore "[fell] short of imbuing the federal government with 'control and responsibility' over the pipeline as a whole." (p. 41.) Most notably, the court cautioned against turning NEPA into a statute that requires federal oversight of all domestic oil pipelines in the absence of any contrary intent by Congress. (p. 47.)

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