Environmental Law Strategy

Environmental Law Strategy

News & Commentary on Developments in Environmental Law and Policy

Federal Agency Approvals Beyond the Scope of the Migratory Bird Treaty Act

Posted in Migratory Bird Treaty Act

In the last month, two separate federal district courts have declined to extend the scope of the Migratory Bird Treaty Act, 16 U.S.C. §§ 703-712 (MBTA), to federal agency approvals of projects that plaintiffs alleged could potentially and indirectly result in the “taking” of migratory birds.  The impact of these decisions is important to industries, such as the wind power industry, that face legal challenges premised on allegations that their future operations will harm migratory birds in violation of the MBTA.

Under the MBTA, it is unlawful “to pursue, hunt, take, capture [or] kill” any native migratory bird species unless permitted by the U.S. Fish and Wildlife Service.  16 U.S.C. § 703. The MBTA is primarily a criminal statute, 16 U.S.C. § 707(a), but federal courts have found it applicable to federal agencies through the Administrative Procedure Act (APA).  See Humane Society v. Glickman, 217 F.3d 882, 887 (D.C. Cir. 2000).  Where MBTA claims are pursued against the federal government, the plaintiffs frequently contend that federal agency action results in the taking of migratory birds is unlawful unless the agency obtains a MBTA permit.  The plaintiffs in Protect Our Communities Foundation v. Chu, 12-CV-3062, 2014 WL 1289444 (S.D. Cal. Mar. 27, 2014) and Public Employees for Environmental Responsibility v. Beaudreu, 10-CV-1067, 2014 WL 985394 (D.D.C. Mar. 14, 2014) recently advanced this same argument.

In Protect Our Communities Foundation, the plaintiffs alleged that the Department of Energy was required to obtain a permit under the MBTA prior to issuing a Presidential permit approving the construction of a cross-border electric transmission line that would connect a wind power project to the electricity grid.  Similarly, in Public Employees for Environmental Responsibility, the plaintiffs argued that the Bureau of Ocean Energy Management needed to obtain an MBTA permit prior to authorizing the Cape Wind offshore wind project.  The courts rejected plaintiffs’ claims in both cases.  In Protect Our Communities Foundation, the court determined that the federal government did not need to obtain a permit where the action alleged to take a migratory bird (1) was unintentional and incident to a lawful activity and (2) was the action of a non-governmental third party.  2014 WL 1289444 at *9.  Similarly, the court in Public Employees for Environmental Responsibility, held that the MBTA “does not appear to extend to agency action that only potentially and indirectly could result in the taking of migratory birds.”  2014 WL 985394 at *32 (“the Court finds that the BOEM did not violate the Migratory Bird Treaty Act by merely approving a project that, if ultimately constructed, might result in the taking of migratory birds”).

These cases are important for two main reasons.  First, the courts refused to expand the scope of the MBTA to cover federal approvals of actions that may potentially and incidentally cause bird deaths.  Historically, the MBTA served as a tool to prevent hunters and poachers from taking migratory birds.  See, e.g. Glickman, 217 F.3d at 885 (“[a]s § 703 is written, what matters is whether someone has killed or is attempting to kill or capture or take a protected bird, without a permit and outside of any designated hunting season.”); Protect our Communities Found. v. Salazar, 12-CV-2211, 2013 WL 5947137 *18 (S.D. Cal. Nov. 6, 2013) (“the MBTA was intended to prohibit conduct directed towards birds and did not intend to criminalize acts or omission that are not directed but which incidentally cause bird deaths”).  Where lawful activities incidentally result in harm to migratory birds, such as timber harvesting, courts have refused to find a violation of the MBTA.  See Newton County Wildlife Ass’n v. US Forest Serv., 113 F.3d 110, 115 (8th Cir. 1997); Seattle Audubon Society v. Evans, 952 F.2d 297, 302 (9th Cir. 1991).  The recent court opinions adhere to this same philosophy.  Given that wind turbines, planes, buildings, and even domestic cats can potentially take a migratory bird, requiring permits for each would be an administrative nightmare.

The courts’ decisions are also important because they prevent another hurdle from arising in the federal approval process.  The federal permitting and approval process for large industrial projects can be slow and onerous. If the courts had required agencies to obtain MBTA permits, this undoubtedly would delay current and future projects.  These recent decisions are good news for an industry already subject to significant federal review.

Disclaimer: BakerHostetler represented Cape Wind Associates in the district court proceedings in Public Employees for Environmental Responsibility v. Beaudreu.

DfE Under Fire: Do Fragrances Pass the Sniff Test?

Posted in Uncategorized

Logos are powerful in driving consumer preferences.  My three-year-old loves the Starbucks logo because he knows it means cookies for him and a chai latte for mommy.  The Energy Star logo often plays an important role in consumer decisions ranging from major appliance purchases to which light bulbs to buy.  LEED Certification logos are coveted by developers.  We love our logos.

Perhaps less known is EPA’s Design for the Environment (“DfE”) logo.  Established in 1990s as a voluntary pilot program, EPA has approved thousands of products over the years for the DfE logo, including household cleaning products such as all-purpose cleaners, laundry detergents, kitchen and bath products, floor care products, degreasers, etc.  The DfE logo consists of a globe surrounded by the words “U.S. EPA” and “Design for the Environment.”

Given the inability of lawmakers to agree on revamping the Toxic Substances Control Act (“TSCA”), many champion EPA’s foray into driving consumer chemical preferences through the DfE logo program.  However, EPA’s DfE program has faced criticism from watchdog groups.  Most recently, the program has been criticized for endorsing products with fragrances.

Companies seeking to stamp EPA’s globe on their products must submit the ingredients of each product to EPA for approval.  Products may display the DfE logo when their ingredients meet the screening criteria of the DfE scientific review team, which considers the environmental and human health effects of each ingredient.  The goal is for companies to replace harsher chemicals with those that the DfE review team has deemed “safer.”

Under EPA’s DfE system, product ingredients fall into functional classes – essentially categories of ingredients that are necessary to make the products effective.  Yet, according to the Children’s Environmental Health Network (“CEHN”), not all of these categories are required for product efficacy.  Three weeks ago, in a letter co-signed by leaders of the American Lung Association, the National Medical Association, and other organizations, the CEHN urged EPA Administrator Gina McCarthy to prohibit fragrances from the allowable ingredient categories in DfE-labeled products.  Fragrances, CEHN argues, are not necessary ingredients.

As Congress continues to debate the modernization of TSCA, the EPA is building a brand of customer recognition in the chemical world.  At a conference in early March, the Director of EPA’s Office of Pollution Prevention and Toxics suggested that EPA will increasingly be focused on improving the logo’s visibility and viability among individual purchasers.  Yet, given the issues CEHN and other groups are raising regarding fragrances, not to mention an abundance of other “green” labels popping up all over the household products market, will the DfE label really resonate with parents in supermarkets?  Will EPA respond to CEHN’s concerns by amending ingredient categories to exclude or place greater limitations on fragrances?  While the DfE label will probably never generate from consumers the kind of excitement about household products that the Starbucks mermaid elicits from my son, it remains to be seen whether the DfE logo will draw consumers to products with the same degree of success that the Energy Star program has yielded.

Ninth Circuit Denies Rehearing in Clean Air Act Greenhouse Gas Case

Posted in Clean Air Act

As we discussed in an earlier post, in October 2013 the Ninth Circuit held in Washington Environmental Council v. Bellon, 732 F.3d 1131, that it lacked jurisdiction to hear certain environmental organizations’ challenge to Washington’s failure to regulate greenhouse gas (GHG) emissions from the state’s five oil refineries under the Clean Air Act.  The circuit assumed without deciding that anthropogenic GHG emissions in general are causally linked to climate change, but found plaintiffs had failed to sufficiently allege a causal link between the lack of “reasonably available control technology” (RACT) limits on the refineries and their alleged climate-change related injuries.  Because of a “natural disjunction between . . . localized injuries and the greenhouse effect,” the court suggested, such a link will be difficult to establish in any case given the limitations of current science.  Id. at 1143.

On February 3, 2014, the court denied rehearing en banc.  Judge Milan Smith, who wrote the panel opinion, issued a concurrence in the denial (joined by Judge N. Randy Smith, also on the panel) stressing that the panel’s holding was compelled by the standing requirements articulated in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).  Judge Gould, joined by Judges Wardlaw and Paez, dissented from the denial, arguing that Massachusetts v. EPA, 549 U.S. 497 (2007), confers standing not only on states, but also on environmental organizations bringing global-warming related challenges to governmental failures to regulate.  (Judge Kleinfeld, the third member of the panel, did not express his views on the denial.)

The circuit’s refusal to rehear the case leaves the panel opinion standing, and its broad reasoning that it is difficult, if not impossible, to sufficiently trace local climate-change injuries to a particular source will surely be cited in similar cases, especially those where local climate change-based injuries are alleged.  Plaintiffs now have 90 days to petition the Supreme Court to hear the case.

Industry Group To Weigh In On GMO Labeling Debate

Posted in Genetically Modified Organisms

With the rise in state legislative efforts to require labeling for foods produced using genetic engineering or “GMOs,” the Grocery Manufacturers Association (GMA) is poised to enter the labeling debate by working with federal legislators to propose a federal standard.  A draft of the proposed legislation shows three objectives: (1) to establish a process for the Food and Drug Administration (FDA) to conduct safety reviews plant varieties proposed to be consumed as genetically engineered food; (2) to create a legal framework governing the use of labels disclosing the presence or absence of GMOs; and (3) to require the FDA to define the term “natural” for purposes of labeling.  A federal GMO regulation would provide a unified approach to GMO labeling and preempt state and local labeling requirements.

The FDA safety review element would obligate GMO developers to notify the FDA at least 120 days before introducing the food into the marketplace.  Currently, such a process is voluntary.  The notification would contain the basis for the developer’s determination that the food is as safe as comparable non-GMO food.  After receiving the notification, the FDA would have 30 days to issue a response determining whether the notification is complete or additional information is required.  Then, the FDA would have 90 days to review the application to determine whether the FDA objects to the determination that the food is as safe as comparable non-GMO food.  If the FDA does not object, then the developer may market the food.

GMA’s proposal would also institute a voluntary GMO labeling initiative guided by a federal legal framework.  Under this approach, the FDA would instruct food manufacturers on the requirements for claiming that a food does or does not contain GMO ingredients.  If a food contains a GMO, a manufacturer may voluntarily represent that fact on a label.  In such instances, a manufacturer could also provide information regarding the manner in which the food has been modified to express traits or characteristics that differ from comparable food.  A manufacturer would also be allowed to claim that a food is non-GMO.  To do so would require the manufacturer to establish a “traceability program” that ensures bioengineered food is not commingled with non-bioengineered food at any stage of production.  One exception to this requirement is that the use of dairy products from animals fed GMOs or treated with a drug or biological product developed through biotechnology would not disqualify a manufacturer from representing that a food was non-bioengineered.  The proposed federal guidance would also prevent manufacturers from misleading consumers by prohibiting claims that a food is more or less safe solely based on the use or absence of GMOs.

In addition to regulating GMO labels, the proposed legislation would settle the debate over use of the term “natural” on foods containing GMOs.  Under the proposal, FDA would be obligated to define “natural” for use on food packaging.  The same definition would apply to foods labeled “100% natural,” “naturally grown,” “all natural,” “contains no artificial ingredients,” “nothing artificial,” and similar terms.

If GMA’s federal standard is adopted, food manufacturers would not need to worry about state-level labeling laws as they would be expressly preempted.  While Connecticut and Maine are the only states that have passed a labeling law, a number of states may consider labeling initiatives later this year, including Oregon, Colorado, Vermont and Arizona.  Additionally, federal labeling bills have been proposed in both the House and Senate.  Given the national attention this topic receives, it will be important to track the progress of all initiatives.

D.C. Circuit Grants Rehearing in Clean Air Act Case

Posted in Clean Air Act

On December 11, a D.C. Circuit panel (Tatel, Brown, Griffith) granted in part environmental and state petitions for rehearing in Mississippi v. EPA (Nos. 08-1200 et al.), revising key language describing the court’s review of certain agency actions.  In July, the panel affirmed EPA’s 2008 revisions to the primary ozone National Ambient Air Quality Standards (“NAAQS”), while remanding the revised secondary ozone NAAQS for reconsideration.  EPA set both the primary and secondary standards at the same level: 0.075 ppm (parts per million), revised downward from the 1997 level of 0.08 ppm.

Under Clean Air Act Section 109(b)(1), primary NAAQS set pollution levels that “allow[] an adequate margin of safety . . . requisite to protect the public health”; secondary NAAQS under Section 109(b)(2) set levels “requisite to protect the public welfare.”  The court’s July opinion rejected arguments that EPA had improperly disregarded a recommendation from the Clean Air Science Advisory Committee (“CASAC”) that the primary standard be set between 0.060 and 0.070 ppm, but held that the agency erred in not making a separate determination as to the appropriate secondary standard.  The rehearing order revises language in the July opinion, removing a phrase suggesting that the court will only disturb EPA’s judgment on NAAQS due to “egregious procedural errors” and substituting language clarifying that the court will correct “arbitrary[] and capricious[]” failures to appropriately consider, e.g., the vulnerability of “sub-populations” such as the young or elderly.

This revision grant signals that the court will continue to examine critically EPA departures from CASAC’s recommendations, and will remain open to arguments that EPA failed to explain the basis for an “adequate margin of safety” determination.

EPA Adopts Updated Standards And Practices For Environmental Site Assessments; Forthcoming Proposed Rule Will No Longer Accept Prior Standard As Basis For CERCLA Defenses

Posted in CERCLA

On December 30, 2013, EPA published a Final Rule providing that a prospective purchaser or tenant of contaminated property may use ASTM International’s recently updated version of its standard for environmental site assessments – Standard 1527-13 – to meet the standards and practices for “all appropriate inquiries,” as set forth in the Brownfields Amendments to the Comprehensive Environmental Response, Compensation and Liability Act and 40 C.F.R. Part 312.  Parties meeting those standards may qualify for the innocent landowner, contiguous property owner, or bona fide prospective purchaser limitations on liability under CERCLA.

In the preamble to the December 30, 2013 Final Rule, EPA also announced its intention to publish soon for public comment a proposed rule to no longer acknowledge the prior version of ASTM’s site assessment standards, Standard E1527-05, as meeting the “all appropriate inquiries” requirement.  In the meantime, both the prior and updated standards are acceptable.

The newest version of the ASTM Standard includes several changes from the prior version.  For example, the definition of “Recognized Environmental Condition,” is clarified and a new term, “Controlled” Recognized Environmental Condition is included.  In addition, the standard contains new provisions regarding vapor intrusion and vapor mitigation risks.  There is also a greater emphasis on conducting regulatory file reviews, particularly with respect to adjacent properties.

If you would like more information on Standard 1527-13, please feel free to contact the authors of this post, Amy Kellogg or Christopher Marraro.

More GMO Labeling Ballot Initiatives Coming in November; Federal Labeling Initiatives in Congress

Posted in Genetically Modified Organisms

Despite losses in California and Washington, groups in favor of labeling food containing or consisting of genetically modified organisms (“GMO”) continue legislative efforts at the state and national level.  Oregon and Colorado appear to be the next states to vote on the issue of whether food containing GMOs should be labeled.  Pro-labeling groups are also seeking federal laws that would require labeling of GMOs.

Initiative 27, a ballot initiative in Oregon that would require the labeling of GMO food, recently survived a challenge in the Oregon Supreme Court.  On December 2, 2013, the Oregon Supreme Court affirmed that Initiative 27 complied with the Oregon Constitution’s procedural requirements, and was therefore properly certified by the Oregon Attorney General and Secretary of State.  This allows supporters of the initiative to begin gathering the 87,213 signatures required by July 3, 2014, to place Initiative 27 on the 2014 General Election ballot.  As currently written, Initiative 27 would require food offered for retail sale that is entirely or partially produced with genetic engineering to disclose that information on a label.  In the absence of such a disclosure, the food would be considered misbranded under Oregon law and any injured person would be allowed to bring a lawsuit against the food manufacturer, supplier, or retailer.

Colorado has a similar initiative that may appear on its ballot in 2014.  Ballot proposal 48, styled as a right-to-know law, would consider food produced with genetic engineering to be misbranded unless it is properly labeled with the phrase “produced with genetic engineering” on the food’s packaging.  The law would exempt animal feed, chewing gum, alcoholic beverages, and food prepared for immediate consumption from the labeling requirements.  The title of the law was recently established, allowing proponents of the measure to begin collecting signatures in support.  Approximately 86,105 signatures will be needed by August 2014 for the measure to appear on the ballot.  A challenge to the ballot initiative is pending, however.  A hearing related to the challenge will take place on December 18, 2013.

Arizona might be the third state to have a similar GMO labeling initiative on the 2014 ballot.  Currently, the organization Label GMOs Arizona is sponsoring an initiative that would amend Arizona law so that GMO food would be required to be labeled.  Similar to the proposed laws in Oregon and Colorado, unlabeled food containing GMOs would be misbranded under state law.

In addition to state-level initiatives, anti-GMO groups are pressuring federal lawmakers to pass national legislation that would require labeling of GMOs.  Senator Boxer and Representative DeFazio have introduced identical bills in the Senate (Bill 809) and House (Bill 1699) that would amend the Federal Food, Drug, and Cosmetic Act to deem misbranded any food that has been genetically engineered or contains one or more genetically engineered ingredients, unless such information appears on a label.  Such federal GMO labeling legislation would preempt state labeling laws.  The federal labeling initiatives are still in their infancy, however, and neither has passed through the relevant Committee.

GMO Laws Take Root in Hawai‘i

Posted in Genetically Modified Organisms, local laws

Recently, two counties in the State of Hawai‘i passed laws that restrict the growth and cultivation of genetically modified crops (“GMO”).  Kaua‘i County passed Bill 2491 after overriding a mayoral veto on November 16, 2013.  Hawai‘i County’s Bill 113 became law when Mayor Kenoi signed it on December 5, 2013.  Both of these laws will significantly impact GMO agriculture in these counties.

The Kaua‘i law imposes two main burdens on crop cultivation—public disclosure and exclusionary zones.  Under the law, all commercial agricultural entities must disclose the growing of GMOs in an annual public report filed with the State Department of Agriculture and posted online on the Kaua‘i County website.  The report is due within 60 days of the end of the calendar year, and the first reports are due the date the ordinance takes effect.  The report must include a description of each GMO, a description of the geographic location where the GMO is being grown or developed, and the date each GMO was initially introduced to the land.

For agricultural operations that employ restricted use pesticides, the law imposes buffer zones that prohibit growing any crop within 500 feet of residential care facilities, medical facilities, day care centers, nursing homes, schools, and in certain cases, residential dwellings.  There is a 250-foot buffer zone for parks, and a 100-foot buffer zone for public roads, shorelines, and perennial waterways.  A violation of any of these provisions can result in a civil fine of $10,000 – $25,000 per day.

The Hawai‘i County law, now designated Ordinance 13-121, generally prohibits the (knowing) open air cultivation, propagation, development, or testing of GMOs.  There are three listed exemptions, however.  First, the law does not apply to the cultivation of genetically engineered papaya as long as the grower registers with the County.  Second, the law allows continued cultivation or development of GMOs only in “specific locations where genetically engineered crops or plants have been customarily open air cultivated, propagated, or developed” prior to the effective date of the Ordinance if the facilities register with the County within 90 days of the law taking effect.  Finally, the law contains an “emergency exemption” that allows a non-GMO grower to petition the County for the use of a genetically engineered remedy where a non-GMO crop is being harmed by a plant pestilence and there is no other available alternative solution.  A violation of the Ordinance carries a fine of up to $1,000, as well as the associated costs of investigating and testing the violating crops and any court costs (i.e., attorney’s fees, witness fees, and witness expenses).

For more information on how these laws may impact commercial agricultural operations, feel free to contact Christopher Marraro, Geri Edens or Peter Whitfield.

Industry Groups Petition D.C. Circuit for Review of Revisions to Air Pollution Standards for Oil & Gas Production Sources

Posted in Clean Air Act

On November 22, industry groups filed in the D.C. Circuit five petitions for review of the Environmental Protection Agency’s (EPA) final amendments to new source performance standards (NSPS) governing the oil and natural gas production sector.  The standards impose limits on the emission of volatile organic compounds from gas wells, storage vessels, and other components of natural gas production infrastructure, including hydraulic fracturing operations.  EPA’s amendments, published on September 23, extended the time to comply with the new standards from April 2014 to April 2015 for certain affected storage tanks, but they do not alter the compliance schedule for gas wells.

The petitions for review are just one part of an ongoing administrative and legal process.  In a combined final rule in August 2012, EPA published both NSPS and National Emission Standards for Hazardous Air Pollutants (NESHAP)—under Clean Air Act Sections 111(b) and 112(d), respectively—for the oil and natural gas production source category.  Nine separate petitions for review were filed in the D.C. Circuit, brought by environmental and industry groups, as well as the State of Texas.  (Texas later moved for voluntary dismissal of its petition, which was granted.)  The petitions were consolidated; the lead case is American Petroleum Institute v. EPA, No. 12-1405.  In April 2013, the court granted EPA’s unopposed motion to sever the NSPS and NESHAP issues and to hold all proceedings in abeyance pending the agency’s consideration of pending petitions for administrative reconsideration of both the NSPS and NESHAP standards.  (The NSPS challenge is now docketed as No. 13-1108.)

EPA informed the court that it will issue a notice of proposed rulemaking addressing additional NSPS issues raised in the petitions for administrative review by December 17, 2013, with final action to come by November 2014.  The agency also projected that it will propose a reconsideration rulemaking regarding the NESHAP standards by April 30, 2014, with final action to come by May 2015.

While the recent petitions for review concern relatively minor amendments to the new standards, the underlying rulemaking, reconsideration, and judicial-review procedures are of great importance to the hydraulic fracturing community, as well as to the oil and gas sector more broadly.  All those concerned should closely monitor the EPA’s reconsideration of these standards.

D.C. Court Says Comprehensive NEPA Not Required for Domestic Pipeline

Posted in NEPA

Last week, the D.C. District Court issued a decision in Sierra Club v. U.S. Army Corps of Engineers, No. 13-cv-1239, denying the plaintiffs’ request to preliminarily enjoin Enbridge’s construction of the Flanagan South Pipeline, a privately owned domestic oil pipeline, while the court resolves the Sierra Club’s challenges to the pipeline under the National Environmental Protection Act (“NEPA”) and the Clean Water Act (“CWA”).  The plaintiffs contend that federal agencies’ participation in various aspects of the pipeline’s construction gave rise to a statutory obligation to perform an in-depth environmental review of the entire pipeline before any construction could commence.  The court found that “Plaintiffs have significantly overstated the breadth of federal involvement in the pipeline project and have failed to establish sufficiently that applicable federal statutes and regulations would require the extensive environmental review process that Plaintiffs seek.”  Op. at 2.

The decision is important because it establishes that a certain amount of federal involvement in the development of a domestic oil pipeline does not result in a “major Federal action[]” that would trigger environmental review obligations pursuant to NEPA, 42 U.S.C. § 4332(2)(C).  Generally, construction of a domestic oil pipeline on private land requires no federal authorization because, as the court noted, the federal government does not have permitting authority over domestic pipelines.  Op. at 4 (“Congress has not authorized the federal government to oversee construction of a domestic oil pipeline”).  The extent of the federal government’s NEPA obligations are less clear, however, when a pipeline traverses federal lands, Indian lands, or waters of the United States.  Approximately 28 miles of the Flanagan South pipeline falls under federal jurisdiction.  The remainder, over 560 miles, will run through private land.  Where the pipeline crosses federal waters, Indian lands, and federal land, Enbridge needs to obtain easements, verification of compliance with Nationwide Permit 12 under the CWA, and assurance that the pipeline will not jeopardize species protected by the Endangered Species Act.  According to the plaintiffs, this requires the relevant federal agencies to prepare a NEPA review on the entire pipeline before any construction can begin.

The court disagreed with the plaintiffs, finding that the plaintiffs “significantly overstated the degree of federal involvement in the FS Pipeline in an attempt to shoehorn this essentially private project into the NEPA statute.”  Id. at 39.  In support of its holding, the court distinguished 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.”  Id. at 41 (citation omitted).  In the latter category, the court stated that NEPA generally applies.  In the former category, “the inquiry into the scope of NEPA review turns on the degree of federal ‘control and responsibility’ of a given project as a matter of fact.”  Id.  The court determined that federal action was not a legal condition precedent to construction of the pipeline because there is no comprehensive federal permitting system governing domestic oil pipelines.  Id.  Thus, the court looked to the nature of the federal involvement.

The court held that the plaintiffs were not likely to be successful in showing there was sufficient federal control over the pipeline to trigger NEPA, as required to obtain a preliminary injunction.  In support of this decision, the court noted NEPA analysis was not required where the pipeline crossed federal waters because construction was verified under Nationwide Permit 12.  Id. at 42.  Additionally, the court reasoned that the pipeline’s use of 1.3 miles of federal land and 13.8 miles of land subject to the jurisdiction of the Bureau of Indian Affairs were “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.”  Id.  Finally, the court cautioned that it was wary of transforming NEPA “into a statute that requires federal oversight of all domestic oil pipelines” in light of the fact that “Congress has not yet seen fit to enact an environmental statute that federalizes the construction of private, domestic oil pipelines[.]”  Id. at 47.

Though this opinion only rules on a motion for a preliminary injunction, its holding is certain to inform future cases involving NEPA challenges to domestic pipelines.

Sierra Club v. U.S. Army Corps of Engineers – opinion