Sierra Club, Inc. v. Bostick

539 F. App'x 885
Court of Appeals for the Tenth Circuit·Decided October 9, 2013·No. 12-6201·Unpublished·Cited by 63 cases

Opinions

ORDER AND JUDGMENT **

JEROME A. HOLMES, Circuit Judge.

Plaintiffs-Appellants Sierra Club, Inc., Clean Energy Future Oklahoma, and East Texas Sub Regional Planning Commission (“Appellants”) sued Defendants-Appellees United States Army Corps of Engineers, Thomas Bostick in his official capacity as Commanding General and Chief of Engineers of the U.S. Army Corps of Engineers, and three other Corps members in their official capacities — Michael Walsh, Michael Teague, and Christopher Saliese — (collectively, “Corps”)1 for violations of the National Environmental Policy Act (“NEPA”), the Clean Water Act (“CWA”), and the Administrative Procedure Act (“APA”) related to the Corps’s approval of the construction of an oil pipeline to run from Cushing, Oklahoma to oil refineries along the Gulf Coast near Port Arthur, Texas (“Gulf Coast Pipeline”). Appellants sought a preliminary injunction to prevent construction of the Gulf Coast Pipeline until the resolution of their suit. The district court denied Appellants’ request for a preliminary injunction and this interlocutory appeal followed. Exercising jurisdiction under 28 U.S.C. § 1292(a)(1), we affirm the district court’s denial of the preliminary injunction.

I

The Corps has the authority to issue individual and general permits authorizing the discharge of dredged or fill material into the waters of the United States. See 33 U.S.C. § 1344(a), (e). The Corps’s regulations set forth the policies and procedures required for the Corps to issue general nationwide permits (“NWPs”). In February 2012, the Corps reissued NWP 12, an NWP that allows, inter alia, “the construction, maintenance, or repair of utility lines.” Aplt.App. at 264 (77 Fed. Reg. 10,271, issued Feb. 21, 2012).

Also in February 2012, TransCanada announced plans to construct the Gulf Coast Pipeline — a 485-mile oil pipeline that was designed to run from Cushing, Oklahoma to oil refineries along the Gulf Coast near Port Arthur, Texas. The Gulf [888] Coast Pipeline was originally proposed as part of a larger oil pipeline (“Keystone XL Pipeline”) that was designed to run from Canada to the Gulf Coast. TransCanada submitted pre-construction notifications regarding the Gulf Coast Pipeline to three Corps districts — Galveston, Fort Worth, and Tulsa. The Gulf Coast Pipeline was planned to run through the territory of these three Corps districts, and TransCa-nada sought verification that its pipeline could proceed under NWP 12. During June and July 2012, each Corps office verified that the Gulf Coast Pipeline could proceed under NWP 12.

Appellants sued the Corps in the United States District Court for the Western District of Oklahoma, challenging the validity of the Corps’s reissuance of NWP 12 and the Corps’s verification that the Gulf Coast Pipeline could proceed under it. Appellants alleged that these actions violated NEPA, the CWA, and the APA in several respects. They moved for a preliminary injunction, seeking to enjoin the Corps’s verifications. The verifications would permit construction of the Gulf Coast Pipeline to commence; it was expected to start in August 2012. Following a hearing, the district court denied Appellants’ motion for a preliminary injunction. The district court determined that Appellants did not have a likelihood of success on the merits and that the other equitable factors did not favor granting the injunction. This interlocutory appeal followed.

II

A

We review the “grant or denial of a preliminary injunction for an abuse of discretion.” Davis v. Mineta, 802 F.3d 1104, 1110-11 (10th Cir.2002); accord Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1128 (10th Cir.2013) (en banc), petition for cert. filed, 82 U.S.L.W. 3139 (U.S. Sept. 19, 2013) (No. 13-354); Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Horne, 698 F.3d 1295, 1301 (10th Cir.2012). “An abuse of discretion occurs only when the trial court bases its decision on an erroneous conclusion of law or where there is no rational basis in the evidence for the ruling.” Awad v. Ziriax, 670 F.3d 1111, 1125 (10th Cir.2012) (quoting Wilderness Workshop v. U.S. Bureau of Land Mgmt., 531 F.3d 1220, 1223-24 (10th Cir.2008)) (internal quotation marks omitted). “Under an abuse of discretion standard, a trial court’s decision will not be disturbed unless the appellate court has a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.” Somerlott v. Cherokee Nation Distribs., Inc., 686 F.3d 1144, 1152 (10th Cir.2012) (quoting Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1235 (10th Cir.2001)) (internal quotation marks omitted). “We have previously characterized an ‘abuse of discretion’ as ‘an arbitrary, capricious, whimsical, or manifestly unreasonable judgment.’” Wyoming v. U.S. Dep’t of Agric., 661 F.3d 1209, 1227 (10th Cir.2011) (quoting Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir.2009)), cert. denied, — U.S.-, 133 S.Ct. 144, 184 L.Ed.2d 233 (2012).

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Sierra Club, Inc. v. Bostick, 539 F. App'x 885 (10th Cir. 2013).

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