DC Circuit Affirms Lower Court’s Rejection of Lawsuit Challenging Government’s Approval of Construction of Flanagan South Oil Pipeline


On September 29, 2015, the U.S. Court of Appeals for the DC Circuit issued a unanimous ruling  affirming the district court’s rejection of a lawsuit filed by the Sierra Club against the U.S. Army Corps of Engineers in which the Sierra Club argued that the federal government was obliged to conduct a National Environmental Policy Act (NEPA) analysis of the entirety of an 580 mile oil pipeline constructed by Enbridge Pipelines (FSP), LLC.  The case is Sierra Club v. U.S Army Corps of Engineers, et al.

As described by the Court of Appeals , the Flanagan South oil pipeline will convey crude oil “across 593 miles of American heartland from Illinois to Oklahoma”.  Almost all  of the land over which the pipeline is constructed is privately owned, but the pipeline required the approval of the  Corps of Engineers because it also encompasses nearly 2000 minor “water crossings” subject to the Corps of Engineers’ general permitting authority under the Clean Water Act (CWA).  These water crossings also triggered a review of the project’s compliance with the Endangered Species Act (ESA) since the pipeline could also result in a  “take” of two listed endangered species, the Indiana Bat and the American Burying Beetle.  However, a Biological Opinion issued by the Fish and Wildlife Service concluded the “take” would not be so extensive as to jeopardize the continued existence of either species.

The basic argument of the Sierra Club was that the entire length and breadth of the pipeline project required an analysis under the NEPA.  However, the Court of Appeals have disagreed with this contention.  The Court of Appeals held that the federal government as not required to conduct NEPA analysis of the entirety of the pipeline project, and that the federal agencies regulatory review was limited to “discrete geographical segments of the pipeline comprising less than five percent of its overall length”.  It should also be noted that the Court of Appeals rejected Enbridge’s argument that the case was moot because the pipeline had been constructed; to the contrary, an order by a Court of Appeals that wholly or partly enjoined the operation of the pipeline could still provide some degree of “effectual relief”.