[00:00:01] Speaker 03:
Case number 14-5205, Sierra Club Appellant versus United States Army Corps of Engineers at L. Mr. Hayes for the appellant, Mr. Gray for the appellees.

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Excuse me.

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Good morning, and may it please the court.

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My name is Douglas Hayes on behalf of Sierra Club, the appellants in this matter.

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I'd like to reserve two minutes of my time for rebuttal.

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As you know, this case involves the Enbridge-Flannigan South crude oil pipeline, which was constructed between four states following the approval of various federal agencies.

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Now, the actions in this case include 33 easements across federal properties, four decisions by the Army Corps of Engineers to approve almost 2,000 water crossings across four states,

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and the decision by the Fish and Wildlife Service to allow the take of two endangered species in the species habitat, which was implemented by the Corps.

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Let me ask you a preliminary question because Enbridge says this whole thing is moot, the pipeline is finished, it's already operational, so why isn't it moot?

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Thank you.

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First of all, it's important to note that the government does not also make that argument.

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The test in this circuit and other circuits is whether, even if a NEPA project is complete, whether the agencies retain the authority to impose additional mitigation measures and at least provide partial relief.

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And that's true in this case.

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The government hasn't disputed that

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has that authority to impose additional mitigation measures.

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What kind of mitigation measures might it impose under what authority?

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Under the authority under the Clean Water Act, under the easement granting statutes,

[00:02:33] Speaker 04:
So because the verifications are conditioned on continuing serving of the public interest in all the various conditions therein, or are you talking about the separate permitting of the BIA lands and that?

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That's correct.

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The CORE statute, excuse me, the Clean Water Act statute and regulations allow the

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the core to impose mitigation measures throughout the life of the project.

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And just to give you an example of the type of mitigation measures we're talking about, the Environmental Protection Agency in this case is worried about oil spills.

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They're worried not just the catastrophic oil spills like we saw on the Enbridge pipeline in Michigan, but the EPA was referring to up to 2% of a pipeline's volume could go undetected by the spill response system, and that's

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with a pipeline of this size, that's up to 500,000 gallons a day that could go undetected.

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So EPA suggested several additional mitigation measures, including monitoring wells in sensitive areas, different shutoff valves, spill response equipment.

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All of these were mitigation measures that EPA was urging the Corps to take, but were never considered in the NEPA analysis.

[00:03:50] Speaker 04:
Those were not considered in the national permit because no party raised them, isn't that right?

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To what extent is that preserved?

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The oil spills were never considered in the national, nationwide permit itself.

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And in fact, that document was limited to just looking at half-acre fills of wetlands for these waterways.

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And in fact, that document said in our appendix at page 316, that document even says NEPA requires more than this.

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You can't just look at the impacts of fill to waterways.

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And it says all additional impacts would be analyzed for certain projects at the project level.

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So even Nationwide Permit 12 itself anticipated

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additional impacts to be analyzed at the project level.

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That was never done here.

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Meaning the verification?

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The verifications.

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And in this case, we're looking at the verifications, the Fish and Wildlife Service action, but also the easements.

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There were 33 easements that were analyzed in three separate EAs.

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Now, the connected action regulations in this case

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Under NEPA, any... Putting aside connected actions just for a moment, was the risk of oil spills considered in those environmental assessments?

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It was, but it was limited to those actual easement areas.

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Those parcels.

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That's correct.

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And the... But measures required or not?

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No.

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Not the mitigation measures that EPA was asking for, exactly.

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So, for example, EPA was specifically considered, even within those areas was considered,

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was concerned about sensitive areas like the upper Mississippi River watershed.

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Those mitigation measures to protect those areas were not implemented in this case.

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So, but it's important to

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The government and Enbridge go to great lengths to talk about how oil pipelines as a whole are not major federal actions per se.

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But in this case, there's no question that there has been major federal action and that NEPA regulations apply.

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The easements were major federal action.

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The district court acknowledged that.

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Therefore, the connected action regulations apply.

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And the government and Enbridge, neither party disputes that none of these various federal actions would have independent utility.

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So based on the Delaware Riverkeeper case in this court and decades of segmentation connected action case law in this circuit, at least those federal actions had to be analyzed in the same way.

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Riverkeeper is a case that involves FERC and FERC has authority over the whole of the pipeline project and that seems to me different than a case where the action agencies have a very minimal

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role to play here, something like between 2 and 4 percent of this whole pipeline and the rest of it's on private land.

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Which is in that 2 to 4 percent is not in one discrete area, it's separated across the entire pipeline.

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But I think to answer your question, it's important to break that into two parts.

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Delaware Riverkeeper holds that various federal actions taking to approve a single project need to have independent utility if they're to be looked at separately.

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So for at least the federal actions in this case, the easements, the other areas within federal jurisdiction, those are connected.

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What I think you're asking... I'm sorry, I didn't want to interrupt.

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Go ahead.

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And I think the second part is whether the non-federal or areas outside of the federal jurisdiction should be included in that analysis.

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And the answer to that is yes, as well.

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But just as an initial matter, at least the federal actions that were analyzed here, the areas within federal jurisdiction, the connected action regulations in Delaware Riverkeeper

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and Hammond v. Norton all require that these federal actions be analyzed together.

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There's some appeal to that, but I'm not sure that I see that as something that you were pressing in the district court.

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You sort of have these concentric claims.

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One is at least group all the

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need by evaluations that were going on with respect to the federally controlled or permitted or supervised lands together in one package.

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And then you have the broader claim about covering the private scope, and I guess we'll get onto that with the biological opinion.

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Smaller claim, is that something you pressed in the district court?

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It is, it was in our complaint, we alleged that each of these federal actions individually triggered NEPA, but also that all of the federal actions and the non-federal parts of the pipeline should have been analyzed together, and I think- Right, and the non-federal, but the sort of lesser included claim that just if we only can see that we're gonna look at the federal parts, those should be done together.

[00:09:09] Speaker 04:
That's a claim that I feel,

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I perceive as somewhat no.

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I think the district court's opinion sort of mischaracterizes what are claimed and does just talk about whether the whole pipeline is a measure of federal action, whether the whole analysis, or the whole pipeline should have been considered together.

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But our complaint alleges that each of these actions, federal actions, should have been analyzed together.

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Doesn't your approach to this nullify all the benefits of the general permit authority?

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I mean, because my understanding of that is that NEPA is considered when that's done in the first instance, and it sounds like you're saying then you have to go back and do it all again.

[00:10:03] Speaker 00:
No, Your Honor, I don't think it does nullify the benefits.

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I mean, Nationwide Permit 12 was never intended for projects of this magnitude.

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Now, when you have 2,000 water crossings being lumped together, and you have the Corps implementing an Endangered Species Act take, and then you have connected to that 33 easements, at least in this situation, all these federal actions should have been analyzed together.

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This is not a situation where we're simply asking for a handful of water crossings to be looked at together.

[00:10:39] Speaker 04:
Let me ask you with respect to the incidental take statement, but all of them.

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There's something a little perverse about saying, well, the incidental take statement is with respect to the entire pipeline, public and private, and we know that the Ninth Circuit has viewed incidental take statements as triggering NEPA review, so there's some authority out there.

[00:11:01] Speaker 04:
But then when you think about this on the ground, what is the review that that action should trigger?

[00:11:09] Speaker 04:
So the action is let's protect species along the pipeline.

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If that's a federal action, triggering environmental review, what about that conduct that is safe harbored by the ITS needs to be analyzed for environmental impact?

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It itself is an environmental protection measure.

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The Fish and Wildlife Service consultation and the incidental take statement is looking at whether or not this will jeopardize the existence of a species.

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That's an entirely different question as to what the impacts are on these species and in light of that, whether or not the project should go forward.

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So, of course, the Fish and Wildlife Service has discretion that would be informed by NEPA to impose certain reasonable and prudent measures to minimize those impacts, but then the Corps, they're also- And has done so.

[00:12:06] Speaker 00:
That's correct, but those were not part of any NEPA process.

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But then it's up to the Corps, in this case, to decide in light of that whether to go forward with the project.

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And even when the Corps is verifying projects under Nationwide Permit 12, the district engineers are required to look at the entire project and decide whether they'll have more than a minimal impact on the environment.

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In this case, that included the

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impacts to endangered species.

[00:12:38] Speaker 04:
So it's not the monitoring that's been put in place pursuant to the ITS that you're worried is going to cause environmental impact?

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Or is it?

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Well, that's one thing that would be informed by a NEPA analysis.

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The monitoring, of course, is not monitoring just for the sake of monitoring.

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It's because there are ongoing environmental impacts from the

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operation of the pipeline from the permanent maintenance of a right of way through everything in its path for 600 miles.

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None of these impacts were ever analyzed by any agency.

[00:13:13] Speaker 04:
What do they do to monitor?

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Do they drive trucks along?

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Do they do helicopters?

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Do they do motorbikes?

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Up and down.

[00:13:19] Speaker 00:
I believe there are over, and some of the core areas talk about monitoring from the air.

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There's also on the ground monitoring.

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There's monitoring for revegetation of parts of the right of way and so forth.

[00:13:34] Speaker 04:
So they're not checking on beetles from the helicopters, are they?

[00:13:39] Speaker 00:
I don't believe so, Your Honor.

[00:13:41] Speaker 04:
So they're actually going on site, presumably?

[00:13:44] Speaker 00:
Presumably, yes.

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Yes.

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Along the entire route of the pipeline, not just in the jurisdictional areas.

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And it looks like my time is up.

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If I could, I'm trying to understand your argument, or the best authority you have for your argument,

[00:14:02] Speaker 01:
Under the connected action analysis, you look at the non-federal actions as well.

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The CEQ, the NEPA regulations at 40 CFR 1508.25 talk about not only connected actions, but cumulative actions.

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40 CFR 1508.7

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specifically states that that includes the cumulative effects of federal and non-federal actions.

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There are the Corps' own NEPA scoping regulations talk about when their control and responsibility has to be extended to upland areas.

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The public citizen case cites the 1508.7 regulation talking about.

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So all of these, and of course the Delaware Riverkeeper case in this circuit talked about, used that regulation to say all of the cumulative, even if the connected action regulation didn't apply, these are all cumulatively

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actions that should have been analyzed together.

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So those are all, again that's sort of the second question.

[00:15:19] Speaker 00:
First is the federal actions should have been analyzed together, but then clearly this is all part of one interdependent project and all of these NEPA regulations together are intended to prevent an agency from breaking it up into thousands of pieces and to look at the entire project.

[00:15:37] Speaker 04:
Can you address Ramsey and San Luis and explain how you think the logic of those cases most governs your case?

[00:15:47] Speaker 04:
Is this a Ramsey case?

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Is this a San Luis case?

[00:15:50] Speaker 00:
Sure.

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So the question as to whether, first of all, the question as to whether or not the Fish and Wildlife Service action itself, standing alone would have triggered NEPA,

[00:16:04] Speaker 04:
You know, in this case, again, we know that there is NEPA was triggered and by the easements and that should bring in the federal... Well, with respect to very limited geographic parts of the pipeline, the only action that is with respect to the entire pipeline, public and private, is the incidental take statement that I'm aware of.

[00:16:27] Speaker 04:
the biological opinion.

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That gets the whole thing, public and private.

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That's partly why I'm interested in that and whether that is a federal action, triggered a federal action, itself brings on a NEPA review.

[00:16:40] Speaker 00:
So Ramsey said that if the, under the very broad definition of major federal action,

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It includes any sort of, it's not just a permit, it's any sort of federal regulatory approval that allows a project to go forward.

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Now, Ramsey said in this case it's functionally equivalent to a permit, but the reasoning was because the project would essentially be prohibited if not for that action.

[00:17:08] Speaker 04:
Because there it was taking the fish.

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Was that the fish case?

[00:17:12] Speaker 00:
Yes, it was the fish case.

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It was a state-run fish program that would have taken species.

[00:17:19] Speaker 04:
Whereas here, that's not really true.

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I mean, if Emergen wanted to go ahead, and the agencies wanted to go ahead at their peril, they could have.

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There's no sort of actual prohibition.

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It's just an opinion to safe harbor.

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They'd rather have that.

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that protection, but they could have gone forward in light of the species.

[00:17:37] Speaker 00:
They could not have gone through 600 acres of Indiana bat habitat as the project was proposed.

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They could not have taken species of bat and beetles.

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They were reliable for it, but they could have gone ahead.

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Once consultation is implemented as it was in this case, the Corps is prevented by its own regulations from verifying the project until that's complete.

[00:18:02] Speaker 00:
This is not a case where it's an entirely private actor that is trying to get a Section 10 permit under the Endangered Species Act, for example.

[00:18:13] Speaker 00:
This is a case where they needed federal actions before the project could be built

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And in fact, that was what triggered consultation.

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And those federal actions could not go forward until the consultation was complete in this case.

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So.

[00:18:28] Speaker 03:
This has a fairly, there's a fairly small amount of this project that is under federal jurisdiction.

[00:18:39] Speaker 03:
And I'm wondering, do you think there's any limit to this?

[00:18:44] Speaker 03:
In other words, if there

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is a need for federal easements at all in a project, crossing of public water, so forth.

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Would that always, in your view, constitute major federal action and mean that all of these NEPA provisions have to

[00:19:05] Speaker 03:
be taken into account.

[00:19:07] Speaker 03:
In other words, is there any line where it's so private, there's so little federal involvement that you would not argue that?

[00:19:17] Speaker 00:
Sure, and there are several cases that talk about what I think is commonly called the small handle problem, where you have a

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For example, the Winnebago case involved a utility line that crossed a single waterway.

[00:19:33] Speaker 00:
And the court there said, you don't have to look at everything outside of that.

[00:19:37] Speaker 00:
Well, in this case, we're not talking about one aspect of federal involvement.

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We're talking about 35 easements approved by various agencies.

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We're talking about over 2,000 waterways spread along the entire project's length.

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And then of course the endangered species impacts.

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So I don't think this court needs to worry about a bright line rule.

[00:20:03] Speaker 00:
I think in this case, there's enough federal involvement that not a single mile of this pipeline could be constructed without federal funding.

[00:20:10] Speaker 04:
We do worry about what the rule is, though.

[00:20:13] Speaker 04:
And we really are very conscious of the, I know you want to win the case for your clients, but it does feel like you're saying, well, at least in this situation where there's ABCDE, there should be NEPA.

[00:20:28] Speaker 04:
And we're really trying to get a handle on how do we articulate something that's useful for all these different actors going forward.

[00:20:36] Speaker 04:
And it would be helpful if you had any guidance on what

[00:20:39] Speaker 04:
What sort of is the tipping point or what is the line, as Judge Brown was asking?

[00:20:44] Speaker 00:
Sure.

[00:20:44] Speaker 00:
Well, I think the, again, I don't mean to repeat myself, but again, at least all of the federal actions in this case should have been analyzed together.

[00:20:55] Speaker 00:
So that's a starting point.

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And then from there, the question is whether or not

[00:21:00] Speaker 00:
the rest of the pipeline should be analyzed.

[00:21:05] Speaker 00:
And I think, again, the core regulations, one of the factors to determine whether it needs to go outside of the boundaries is to the extent of whether there's cumulative federal involvement.

[00:21:14] Speaker 00:
The government never responds to that regulation.

[00:21:17] Speaker 00:
Isn't it more collective?

[00:21:21] Speaker 04:
I thought cumulative is kind of over time and when they talk about the need with public action that's cumulative on top of private like background private ambient noise and then when something that's subject to regulation is added on top of that sort of sequentially, is this really a situation of cumulative or is it just collective?

[00:21:41] Speaker 00:
It's both.

[00:21:42] Speaker 00:
Of course, one of the cumulative impacts of these thousands of individual pieces of the project is the larger project.

[00:21:53] Speaker 00:
And then there's also, if you look at it in terms of the cumulative impacts of all those, one way of looking at it is it can be looked at like a game of Russian roulette.

[00:22:05] Speaker 00:
If you look at the oil spills across one federal property

[00:22:10] Speaker 00:
and analyze the risks and say the risks there will be minimal over X amount of years.

[00:22:15] Speaker 00:
Well, that's a very different calculation if you add that up, you know, almost 2,000 times.

[00:22:23] Speaker 00:
Now, and then if we're talking about other impacts to cumulative impacts to

[00:22:29] Speaker 00:
to not just listed species, but wildlife in general, habitat fragmentation.

[00:22:35] Speaker 00:
So all of these impacts are, can be looked at, or should be looked at under the cumulative effects regulation.

[00:22:42] Speaker 04:
Let me ask you just one more thing about the biological opinion.

[00:22:45] Speaker 04:
Can we think of a biological opinion, something that's available and required to be obtained by the agencies in their various disparate functions, but also something that's available, like if there were no agency involvement at all, Enbridge presumably could come to the Fish and Wildlife Service and say, we want some upfront analysis of Endangered Species Act.

[00:23:07] Speaker 04:
They could have done that, right?

[00:23:08] Speaker 00:
That's a different process that's set up under the Section 10 process where there's no federal action where a private actor is trying to get in.

[00:23:17] Speaker 04:
But here we can kind of see that as both layers operating at once because Enbridge, in fact, initiated this and was a participant in the consultation and came away with something that's similar to what it would have done had the federal agencies not been involved?

[00:23:31] Speaker 00:
Exactly, and the record shows that there was some back and forth on that, actually.

[00:23:36] Speaker 00:
The Enbridge Fish and Wildlife Service was going to limit the scope of their incidental take statement to the jurisdictional waterways, but that would have required Enbridge to also go out and get a Section 10 permit for

[00:23:54] Speaker 00:
the non-federal parts, and that would have caused the delay.

[00:23:58] Speaker 00:
So after some back and forth, Fish and Wildlife specifically decided to apply the incidental take statement in this case to the entire pipeline, including the non-federal areas, because otherwise Enbridge would have been liable for any take.

[00:24:14] Speaker 04:
And if this were 100% private, were all on private land,

[00:24:19] Speaker 04:
and Enbridge had come and gotten a biological opinion or incidental take statement under section 10, would that be federal action requiring NEPA for the whole pipeline?

[00:24:36] Speaker 00:
It may be.

[00:24:37] Speaker 00:
I'm not sure exactly how the Section 10 works with respect to NEPA.

[00:24:45] Speaker 00:
I would think that if that is a federal action that allows the project to go forward, yes, I would think that the Fish and Wildlife Service or the

[00:24:56] Speaker 00:
whatever agency is issuing that would have to analyze the impacts of the whole project.

[00:25:00] Speaker 04:
Well, just to make it a little harder, what if it isn't something that formally legally is required, but functionally Enbridge doesn't want to go at its peril?

[00:25:10] Speaker 04:
I mean, here didn't they not proceed and say we're spending millions a day by delaying this project, we're waiting for fish and wildlife?

[00:25:18] Speaker 04:
So, I mean, as I understand it, it's not legally required.

[00:25:21] Speaker 04:
I'm 100% private.

[00:25:23] Speaker 04:
You can proceed at your peril, build away, face major liability for taking endangered species, or you can get this.

[00:25:31] Speaker 00:
Well, I mean, I think it's important to... This is not... In this case, the project, as proposed, crosses hundreds of acres of endangered species habitat.

[00:25:42] Speaker 00:
So there's no question that that would violate the Endangered Species Act.

[00:25:46] Speaker 00:
They could not build and operate this pipeline without harming endangered species.

[00:25:52] Speaker 00:
And so even if that was entirely on private land, the same would be true there.

[00:25:57] Speaker 00:
They could certainly build it at their peril, but they would certainly be breaking the law in this case by taking endangered species in the protected habitat.

[00:26:06] Speaker 00:
So unless the court has any other questions.

[00:26:11] Speaker 03:
Thank you.

[00:26:13] Speaker 00:
Thank you.

[00:26:22] Speaker 02:
May it please support?

[00:26:23] Speaker 02:
My name is Michael Gray.

[00:26:24] Speaker 02:
I'm here on behalf of the federal defendants and with me at council table is David Coburn, who's the council for the interveners.

[00:26:32] Speaker 02:
I have a lot to cover, so I think maybe I'll start with the connected actions.

[00:26:39] Speaker 02:
And I do think that the focus of that argument in the district court and even in the complaint where it's alleged in a single sentence is that the federal actions add up to make the federal government responsible for non-federal actions.

[00:26:56] Speaker 02:
And I don't think that sort of Gestalt type theory works here.

[00:27:01] Speaker 02:
where you have NEPA compliance for each of the federal actions, and the Connected Actions Doctrine doesn't expand the federal responsibility to non-federal actions.

[00:27:14] Speaker 02:
And individually, you talk about the verifications that I don't think even the lesser argument that the federal actions had to be analyzed together works, which I don't think the argument was asserted fully, but I don't even think that works because

[00:27:29] Speaker 02:
You need some connected actions and the verifications, the NEPA has done for that at the generic stage and it's clear here that nationwide permit 12 was designed for exactly this situation.

[00:27:45] Speaker 04:
Was it, Mr. Gray, I'm really curious, how common is this?

[00:27:48] Speaker 04:
Are there a lot of pipelines out there that are passing over substantially private land that don't have a whole pipeline NEPA analysis?

[00:28:00] Speaker 02:
It's very common.

[00:28:02] Speaker 02:
It's one of the most commonly used nationwide permits out there.

[00:28:07] Speaker 02:
I think we looked at, for this version of it, and they're not all this big, but there's something like 180 different, and that's just the oil pipelines, and that's just the oil pipelines.

[00:28:19] Speaker 04:
And those are oil pipelines for which, I understand you're saying for which national permits are useful.

[00:28:27] Speaker 04:
But the bottom line of my question was, and which never had under any other authority a full pipeline NEPA analysis.

[00:28:36] Speaker 02:
And which are never a challenge.

[00:28:37] Speaker 02:
I think the unusual thing here is that there's a challenge here alleging that because you have a number of single and complete projects,

[00:28:51] Speaker 02:
that there's some, it transforms into some obligation to consider the full pipeline.

[00:28:57] Speaker 02:
The core's regulatory responsibility is focused on wetlands.

[00:29:00] Speaker 02:
And this is exactly the kind of project for the nationwide permit.

[00:29:02] Speaker 02:
If you look at the EA for the nationwide permit, it anticipates

[00:29:06] Speaker 02:
7,900 of these crossings per year are almost 40,000 over the life of the permit.

[00:29:13] Speaker 02:
And so you look at each crossing as a separate and distant.

[00:29:19] Speaker 02:
It's a single and complete project.

[00:29:21] Speaker 02:
And if it falls within the terms of the permit, it works.

[00:29:24] Speaker 02:
And it's important here to keep in mind that the actual impacts

[00:29:28] Speaker 02:
are all temporary, except for the conversion of some forested wetlands into emergent wetlands, all of which is more than double offset with mitigation.

[00:29:40] Speaker 02:
And so the idea that just because there's a lot, there's a big impact here, I think is wrong.

[00:29:45] Speaker 02:
What they really want is to expand that and make the federal government responsible for the pipeline itself.

[00:29:52] Speaker 04:
Well, they're worried.

[00:29:53] Speaker 04:
I mean, they're very candid about what they're worried about.

[00:29:55] Speaker 04:
They're worried about spills.

[00:29:56] Speaker 04:
And your position is these things are so safe that even when we assume tens of thousands of these crossings, we don't even analyze the risk of oil spills.

[00:30:08] Speaker 04:
We just don't even analyze it because they're really so safe.

[00:30:12] Speaker 02:
Well, there's a separate agency, the pipeline.

[00:30:15] Speaker 04:
But I mean, in the NEPA analysis under the national permitting.

[00:30:19] Speaker 02:
The clean water, I mean, the Corps regulatory responsibility is directed at impacts of film material on the water.

[00:30:28] Speaker 02:
And oil spills are within the province of a different regulatory agency that has a regulatory approach where they have set the standards and the pipeline companies come in and say, here's our plan, we meet the standards.

[00:30:44] Speaker 04:
But they don't have any NEPA responsibilities.

[00:30:48] Speaker 04:
So when you're doing a national permit, you're not looking at oil spills in part because the only oil spills you would be concerned about would be those that would pollute waterways.

[00:31:00] Speaker 04:
And so if there's like a pipeline going over 100 miles of desert, that would be a zero for you because it's just not jurisdictionally relevant.

[00:31:09] Speaker 04:
When you're doing a NEPA analysis from the perspective of the Clean Water Act.

[00:31:14] Speaker 02:
Right, I think that's right.

[00:31:15] Speaker 02:
Is that right?

[00:31:16] Speaker 02:
The focus is what are the impacts of the fill materials on the water.

[00:31:21] Speaker 02:
Here you're talking about mostly intermittent and ephemeral streams where essentially they dig a trench, they lay the pipeline, and then they fill the trench back in.

[00:31:35] Speaker 02:
So the impacts are entirely temporary.

[00:31:37] Speaker 04:
But this is, I had actually misunderstood, I had thought that when any entity of the government does a NEPA analysis, they do a kind of, you know, multi-topic.

[00:31:49] Speaker 04:
They look at all different environmental risks.

[00:31:51] Speaker 04:
They don't just look at the environmental risks that are relevant to their agency, but it sounds like when you're describing, at least the nationwide permitting of the Clean Water Act, that the NEPA, the sort of ex-anti-NEPA analysis

[00:32:04] Speaker 04:
isn't sort of multifactored like that?

[00:32:08] Speaker 02:
Well, there is a public interest review component where they consider impacts under different statutory regimes, but it's certainly not the focus and it's not the primary responsibility of the Corps, particularly where you have another agency.

[00:32:22] Speaker 02:
in the Arikoma Coal case from the Fourth Circuit, which is a coal mining case where the Coors limits the consideration of its impacts to the fill in the water.

[00:32:32] Speaker 02:
And the coal mine itself and all the upland impacts outside of the waters aren't the Coors responsibility because they're regulated by the state.

[00:32:39] Speaker 02:
And here Congress has chosen not to regulate the location and construction of these pipelines.

[00:32:47] Speaker 02:
the Corps does it have any cause to expand its regulatory responsibility?

[00:32:52] Speaker 04:
So it won't look at like the cultural and historic I mean if you go right by you know Tams and Donner's house and that's not in the NEPA analysis when you're putting setting up a national permit.

[00:33:03] Speaker 02:
Well, I mean, a national permit is so broad that, you know, that's one of the things that could be considered by the district engineer in verifying that this, and if it came so close that it might require an individual permit, the district engineer could say, you know, this is not a situation where we're going to verify that this falls within the nationwide permit because of impacts to cultural resources, and so we think you need an individual permit.

[00:33:30] Speaker 02:
But here, there's no allegation that any

[00:33:32] Speaker 02:
of these 2,000 water crossings wasn't within the terms of the permit.

[00:33:37] Speaker 04:
So if somebody had raised in the ex-anti-NEPA analysis for the national permit the risk of oil spills, if Sierra Club had come in and said, look, Russian roulette, you add these separate pieces and you're gonna get a serious risk of oil spills, is that something that the Corps would then have considered?

[00:33:58] Speaker 02:
I think it would have had to respond to the comment.

[00:34:01] Speaker 02:
I'm not sure how it would respond.

[00:34:02] Speaker 02:
I don't think it would have been under any obligation to expand its NEPA analysis to consider that.

[00:34:11] Speaker 02:
and it wasn't raised here.

[00:34:14] Speaker 02:
I should probably talk a little bit about the biological opinion and incidental take statement.

[00:34:22] Speaker 02:
I do think that this is a much closer situation to the San Luis case than it is to Ramsey.

[00:34:32] Speaker 02:
Ramsey's a

[00:34:34] Speaker 02:
a very extraordinary case where you have a non-federal actor, a non-federal applicant, that's engaging in an activity that, by its nature, is designed for the direct take of the species, fishing.

[00:34:51] Speaker 02:
And in that situation, the court said it's a functional equivalent of a permit.

[00:34:56] Speaker 02:
But even the Ninth Circuit has sort of limited that to its facts in the Saint Louis case and said, as a general matter, these agencies aren't

[00:35:03] Speaker 02:
the Fish and Wildlife Service and the National Marine Fisheries Service aren't engaging in action that requires NEPA.

[00:35:10] Speaker 04:
I actually read the San Luis case a little bit differently saying that the entity, the Fish and Wildlife Service, when it issues the biological opinion is not engaging in federal action because the federal action is occurring downstream at the next stage when the agency implements that and it was only because it was the implementing agency in Ramsey

[00:35:31] Speaker 04:
that that's where the responsibility fell, but it's saying that, you know, for example, here you have an incidental take statement that is dealing with the whole pipeline, and then whoever is implementing that, for example, in the verification process, it's becoming part of the verifications, there would be, under SEMLI, there would be.

[00:35:54] Speaker 02:
And that's where the NEPA compliance happened through the verification process.

[00:35:57] Speaker 04:
But there's a kind of a circularity there because you have ex ante nipa analysis for the national permit, and then you have the verification, and in between you have this ITS that's happened.

[00:36:11] Speaker 04:
And so is there an obligation triggered?

[00:36:13] Speaker 04:
I mean, arguably under San Luis, there's an obligation triggered there because of the intervening federal action.

[00:36:19] Speaker 02:
I think you have to look at what the underlying action is.

[00:36:22] Speaker 02:
And so in San Luis, reclamation was

[00:36:24] Speaker 02:
was engaging in a major federal action that required an EIS, and here the core isn't.

[00:36:30] Speaker 02:
So I, you know, it's only said where they're engaging in a major federal action is the action agency's responsibility to comply with NEPA.

[00:36:37] Speaker 02:
Well, if there's no NEPA responsibility,

[00:36:40] Speaker 02:
on the action agency because it's already taken care of, then the ITS doesn't transform it into and expand it and require more NEPA analysis at that stage.

[00:36:48] Speaker 04:
So let's say that the, in our case, that the ITS did require more, you know, in order to get in and look at the pipeline to check out the status of the beetles and the bats, you have to build, you know, 100 little extra dirt roads to access it.

[00:37:02] Speaker 04:
and rode along what didn't used to have one, that would be a federal action that would require more than just the mere verification.

[00:37:09] Speaker 02:
I think it's certainly possible that if the action agency accepted, let's just stipulate that that would be a major federal action.

[00:37:17] Speaker 02:
I don't know if it would, but let's just say it would.

[00:37:19] Speaker 02:
If the action agency accepted that and said, yes, OK, we're going to change the nature of our proposed action such that we're going to do these things that are now major federal actions, then yes, I think at that point,

[00:37:31] Speaker 02:
then the NEPA obligation attaches, and that's the, you know, the Consolidated Salmonid case, I think is the name of it.

[00:37:38] Speaker 02:
That's what happened in that case, but that's not what happened here.

[00:37:41] Speaker 02:
I mean, the ITS requires some monitoring on the part of the Corps, and so it didn't do anything to expand the NEPA obligations.

[00:37:49] Speaker 02:
So I think ultimately,

[00:37:52] Speaker 02:
What we're dealing here with is a private undertaking, 96% of which is on private land and with federal actions that essentially have no permanent impacts that aren't offset by some mitigation.

[00:38:06] Speaker 02:
And the district court correctly concluded that in that situation, that NEPA does not require the government to study the impacts of the full pipeline and the district court should therefore be affirmed.

[00:38:19] Speaker 03:
Thank you.

[00:38:22] Speaker 03:
Mr. Hayes, you have no time remaining.

[00:38:26] Speaker 03:
We'll give you two minutes if you need it.

[00:38:33] Speaker 00:
Thank you.

[00:38:34] Speaker 00:
I'll be very brief.

[00:38:36] Speaker 00:
One issue that I think there is some discussion about whether this idea of all the federal connected actions is something that we raised below, or if this is a new argument.

[00:38:47] Speaker 00:
Again, we did argue that below.

[00:38:50] Speaker 00:
It's in our complaint.

[00:38:53] Speaker 00:
But I think one thing that is important to note is that

[00:38:58] Speaker 00:
What the district court here did was rule that any claims related to the easements at the preliminary injunction stage, the district court ruled that those claims weren't right.

[00:39:08] Speaker 00:
The district court needed to look at the easements before it could apply NEPA.

[00:39:13] Speaker 00:
Once those became right, the district court essentially held that it doesn't need to look at the actual easements and that they comply with NEPA regardless.

[00:39:23] Speaker 00:
So there are several issues with respect to those easements themselves that Sierra Club was never afforded the opportunity to raise in district court.

[00:39:34] Speaker 00:
The scoping issues we did raise, that was an issue from the outset of this case that district court

[00:39:40] Speaker 00:
ruled on that, and I think that's an error of law that we're asking the court to reverse.

[00:39:45] Speaker 00:
But there are also a lot of issues with respect to the sufficiency of the environmental assessments, the sufficiency of the analysis with respect to

[00:39:58] Speaker 00:
cumulative impacts, greenhouse gas emissions, the direct, indirect, and cumulative impacts contained in those EAs that we never had an opportunity to raise.

[00:40:09] Speaker 04:
And I think those you would not be precluded from, I mean, I don't think the government would contend that you would be precluded from bringing a separate case on the content of the environmental analyses.

[00:40:18] Speaker 04:
I think that what the district court said was, yeah, I assumed

[00:40:21] Speaker 04:
the scope of those and I took them into account and the depth of them or the actual substance of them was something I didn't need to know, she says in her final opinion.

[00:40:32] Speaker 04:
And so I think that you're basically making a discretionary decision to the extent you want to challenge those on their substance, do it in a different case.

[00:40:42] Speaker 00:
Well, but, Your Honor, once we file the motion to supplement the complaint with those claims, and the District Court essentially ruled that these environmental assessments comply with NEPA... Did she rule that?

[00:40:56] Speaker 00:
Well, she ruled on, she said that the, and now, regardless of what the content of the, we asserted those claims in our supplemental complaint, additional claims, and the district court ruled against that and dismissed our, or excuse me, issued some of our judgment against us, ruling that these environmental assessments need not

[00:41:19] Speaker 00:
be analyzed together with the other federal actions, but essentially that they complied with NEPA.

[00:41:24] Speaker 00:
So it would give us a pause to file a new complaint to assert all of these additional claims after the district court made such a finding.

[00:41:36] Speaker 00:
And the only other point that I want to make is that the question of whether the Army Corps of Engineers has to look at anything beyond simply the fill of wetlands, the ocean advocates and singular cases that we cite in our briefs, they talk about the Army Corps of Engineers has to look at not just the 404 fill actions, but also the operation of the project.

[00:42:03] Speaker 00:
And that includes the risk of oil spills.

[00:42:06] Speaker 00:
So for those reasons, we're asking the court to reverse the district court and require NEPA analysis of all the federal actions.

[00:42:15] Speaker 00:
Thank you.

[00:42:17] Speaker 03:
Thank you.

[00:42:18] Speaker 03:
The case will be submitted.