Sierra Club, Inc. v. Bostick

787 F.3d 1043, 2015 WL 3422924
CourtCourt of Appeals for the Tenth Circuit
DecidedMay 29, 2015
Docket14-6099
StatusPublished
Cited by26 cases

This text of 787 F.3d 1043 (Sierra Club, Inc. v. Bostick) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sierra Club, Inc. v. Bostick, 787 F.3d 1043, 2015 WL 3422924 (10th Cir. 2015).

Opinions

BACHARACH, Circuit-Judge.

This case involves the authority of the U.S. Army Corps of Engineers to issue nationwide permits under § 404(e) of the Clean Water Act. These permits authorize activities involving discharge of dredged or fill material in U.S. waters and wetlands. See 33 U.S.C. § 1344(e) (2012). Exercising this permitting authority, the Corps issued Nationwide Permit 12, which allows anyone to construct utility lines in. U.S. waters “provided the activity does not result in the loss of greater than/6 acre of [U.S. waters] for each single and complete project.” Reissuance of Nationwide Permits, 77 Fed.Reg. 10,184, 10,271 (Feb. 21, 2012).2

TransCanada Corporation proposed to rely on the nationwide permit to build an oil pipeline, the Gulf Coast Pipeline,3 which would run approximately 485 miles and cross over 2,000 waterways. The Corps issued letters verifying that Nationwide Permit 12 would cover the proposed construction. Shortly thereafter, TransCana-da began constructing the pipeline, which has since been completed and is currently transporting oil.

Three environmental groups (Sierra Club, Inc.; Clean Energy Future Oklahoma; and East Texas Sub Regional Planning Commission) have challenged the validity of the nationwide permit and verification letters. The district court rejected these challenges and entered judgment for the defendants.

In this appeal, we address and reject three sets of claims:

Claims Involving the National Environmental Policy Act (NEPA): The environmental groups argue that the Corps violated NEPA by issuing the nationwide permit without considering the risk of oil spills and the cumulative environmental impacts of pipelines. These arguments are waived.
The environmental groups also argue that the Corps issued the verification letters without conducting a NEPA analysis. We conclude that this analysis was not necessary at the verification stage.
Claims Involving the Clean Water Act: According to the environmental groups, the nationwide permit violates [1047]*1047the Clean Water Act by (1) effectively authorizing activities with more-than-minimal environmental impacts and (2) unlawfully deferring a portion of the minimal-impacts analysis to project-level personnel. We reject both arguments. The environmental groups have not shown that the permit ' authorizes • activities with more-than-minimal impacts, and the Corps has permissibly interpreted the statute to allow partial deferral of its minimal-impacts analysis.
Claims Involving the Nationwide Permit 12: Finally, the environmental groups contend that the Corps incorrectly verified compliance with the nationwide permit without analyzing the cumulative effects or documenting the analysis of cumulative effects. We reject this contention. Corps officials did not need to include a cumulative-effects analysis in the letters, and the record shows that officials conducted the necessary analysis.

Based on our conclusions, we affirm the entry of judgment in favor of the defendants.4

I. Stándard of Review

We review the challenges under the Administrative Procedure Act (APA). See 5 U.S.C. §§ 701-706 (2012). In applying this standard, we will set aside agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (2012).

Review under the APA is narrow: “[T]he agency need only demonstrate that it considered relevant factors and alternatives ... and that the choice it made was reasonable based on that consideration.” Mt. Evans Co. v. Madigan, 14 F.3d 1444, 1453 (10th Cir.1994).

II. NEPA

The environmental groups make two arguments to challenge the district court’s disposition of the NEPA claims:

1. The Corps’ environmental analysis is deficient because the agency failed to consider the risk of oil spills and the cumulative impacts of pipelines.
2. The Corps failed to conduct an environmental analysis when verifying that the pipeline was permissible under the nationwide permit.

We reject both arguments. The environmental groups waived their claims involving failure to address oil spills and cumulative impacts, and the Corps was not required to conduct an environmental analysis when verifying compliance with the nationwide permit.

A. Requirements of NEPA

NEPA requires an agency to take a “hard look” at the environmental impacts of proposed actions. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). In taking this “hard look,” the agency must take appropriate steps: If the venture involves a “major Federal action” that would “significantly affeet[] the quality of the human environment,” the agency must prepare a detailed environmental impact statement. 42 U.S.C. § 4332(2)(C) (2012). [1048]*1048But if the future effects are unclear, the agency can prepare an environmental assessment instead of a more detailed environmental impact statement. Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 757, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004). If the environmental assessment shows that the impact would be insignificant, the agency need not provide any further énvi-ronmental report.5 Id. at 757-58, 124 S.Ct. 2204.

B. Issuance of Nationwide Permit 12

The Corps prepared an environmental assessment of activities permitted under Nationwide Permit 12, which is challenged by the environmental groups. They contend the Corps unlawfully failed to consider

• the risk of oil spills associated with pipelines and
• the cumulative impacts of pipelines.

We conclude that these challenges are waived.

1. Waiver: The General Rule and the Pertinent Exceptions

Parties challenging an agency’s compliance with NEPA must ordinarily raise relevant objections during the public comment period. Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 764-65, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004). But two exceptions exist. First, commenters need not point out an environmental assessment’s flaw if it is “obvious.” Id. at 765, 124 S.Ct. 2204. Second, a commenter does not waive an issue. if it is otherwise brought to the agency’s attention. Forest Guardians v. U.S. Forest Serv.,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Yellowhorse
86 F.4th 1304 (Tenth Circuit, 2023)
Mayotte v. U.S. Bank
985 F.3d 1248 (Tenth Circuit, 2021)
Sierra Club v. U. S. Army Corps of Engineers
981 F.3d 251 (Fourth Circuit, 2020)
Hays Medical Center v. Azar
956 F.3d 1247 (Tenth Circuit, 2020)
Standing Rock Sioux Tribe v. U.S. Army Corps of Eng'rs
301 F. Supp. 3d 50 (D.C. Circuit, 2018)
Emhart Industries, Inc. v. New England Container Co.
274 F. Supp. 3d 30 (D. Rhode Island, 2017)
Keller Tank Services II, Inc. v. Commissioner
854 F.3d 1178 (Tenth Circuit, 2017)
Keller Tank Services v. CIR
Tenth Circuit, 2017
Osage Producers Ass'n v. Jewell
191 F. Supp. 3d 1243 (N.D. Oklahoma, 2016)
Hayes v. Chaparral Energy, LLC
180 F. Supp. 3d 902 (N.D. Oklahoma, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
787 F.3d 1043, 2015 WL 3422924, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sierra-club-inc-v-bostick-ca10-2015.