Environmental Law: Pipeline; NEPA; Endangered Species Act Clean Water Act: Nationwide Permit

摘要

For the underlying facts of this case see Sierra Club v. United States Corps of Engineers, 990 F. Supp. 2d 9,183 O.&G.R. 115 (D.D.C. 2013). After having their claims dismissed, plaintiffs sought review with the Court of Appeals. Held: affirmed. As did the lower court, the D.C. Circuit noted that while all the federal agencies involved had completed some type of NEPA-review, except for the CWA general permit decision, none of the agencies performed a NEPA review of the entire FS Pipeline project. NEPA only requires federal agencies to make informed and careful decisions by taking a "hard look" at the environmental consequences of major federal actions that will significantly affect the quality of the human environment The pipeline operator raised the question of naootness regarding the appeal since the FS Pipeline project has been completed pursuant to the various permissions granted by the federal agencies. The court, however, finds that the case is not moot should it determine that the agencies should have conducted a NEPA review based on the impacts of the entire FS Pipeline project and not just the small segments that required federal permits. The D.C. Circuit notes that the only alleged federal action that reviewed the pipeline-wide impacts was the FWS' incidental take statement that it issued at the request of the other agencies. The court concludes that the incidental take statement, standing alone, did not trigger , NEPA-review requirements mat looked at pipeline-wide impacts. The court further finds mat there was no abuse of discretion to not review pipeline-wide impacts under a connectiviry analysis mat sometime applies to fragmented or segmented federal decisions. Judge Brown, in concurring, finds that the decision not to conduct a NEPA review for pipeline-wide impacts is not a close call and that the majority's analysis that suggests that it is a close call is wrong.