A federal judge today issued a summary judgment in favor of the defendants in a lawsuit filed by the Southern Environmental Law Center on behalf of Mobile Baykeeper, which sought to compel the U.S. Army Corps of Engineers to withdraw a nationwide permit issued to Plains Southcap, LLC in January 2013, allowing the company to construct a 41-mile pipeline between Mobile and Pascagoula to transport crude oil to a refinery.
The suit, which was filed in January 2014, argued the Corps violated provisions of the Clean Water Act by failing to account for the project’s proximity to Mobile County’s primary drinking water supply. The pipeline has the capacity to transport 150,000 to 200,000 barrels per day (or 6.3 to 8.4 million gallons per day) of crude oil beneath Hamilton Creek, which is within the watershed of Big Creek Lake, the primary drinking water source for more than 200,000 households in the majority of Mobile County, including the cities of Mobile, Prichard, Semmes, Saraland, Chickasaw and Spanish Fort in Baldwin County, according to the SELC.
The Corps’ nationwide permit process allows applicants for new pipelines to avoid more meticulous environmental analysis by recognizing a single, short-term impact to surrounding wetlands that “may adversely affect both surface water and groundwater supplies.”
The nationwide permit has just a single condition regulating construction near sources of drinking water and Baykeeper’s goal was to require Plains to reapply for a more rigorous, individual permit.
As such, Plains intervened in the suit, arguing that Baykeeper lacked the jurisdictional standing to file the complaint because it was based on speculation regarding the relatively low probability of an oil spill. But U.S. District Judge William Steele initially upheld it, determining Baykeeper had indeed made valid arguments about the project’s potential aesthetic and recreational impacts.
But after the company voluntarily made concessions for stronger construction techniques across portions of the watershed in February 2014, Steele determined Baykeeper’s arguments about disrupting Hamilton Creek were moot, not only because a new, horizontal drilling technique would effectively eliminate the group’s concerns about siltation, but also because the Corps’ permit does not regulate what is generally considered to be a much less invasive pipe laying procedure than digging trenches.
“This Court cannot order the Corps to revisit the propriety of the pipeline’s stream crossings in the Hamilton Creek watershed using [horizontal drilling] methods because, again, those activities fall outside the Corps’ jurisdiction … in that they do not involve discharge of dredged or fill materials in U.S. waters,” Steele wrote. “Furthermore, directing the Corps to rescind or re-examine the January 2013 verifications it granted for trench excavation at stream crossings would be a hollow, empty, meaningless exercise as to crossings where the pipeline was ultimately built using [drilling] techniques rather than conventional trench-and-spoil methods.”
Meanwhile, Judge Steele did not agree with Plains’ assertion that Baykeeper had willfully delayed the suit until one year after the permit had been granted, thereby subjecting the company to unnecessary equitable harm. Instead, he found Baykeeper only pursued federal litigation after a state case filed by the Mobile Area Water and Sewer Service (MAWSS) also found in favor of the defendant in December, 2013.
But the heart of the argument, Steele wrote, was rooted in only two of the roughly 30 general conditions of granting a nationwide permit: First, whether the Corps did indeed take into account the proximity of the pipeline to the drinking water intake on Big Creek Lake and second, whether the Corps’ District Engineer analyzed the project for “more than minimal individual or cumulative adverse environmental effects” or any effects “contrary to the public interest.”
With the first condition, the Corps readily admitted it did not consider the pipeline’s proximity to the intake. But citing case law from a similar complaint in Washington state, Steele suggested the condition “did not expressly place a burden on the applicant to provide documentation to the Corps ” and “it would be an absurd result to require the Corps to evaluate and explain how [the permittee] will comply with these conditions.”
Courts have previously determined the nature of the Corps’ nationwide permit is to streamline the process, so in effect, it largely relieves the agency of “investigative and evaluative responsibilities prior to issuing verifications.”
“Nationwide permits are intended to reduce administrative costs and burdens, and to allow projects in pre-cleared activities to move forward with little delay or paperwork,” Steele wrote. “Demanding that the Corps conduct a searching examination of every general condition for every verification request would undermine those purposes.”
In regards to the claim the Corps failed to perform its due diligence in the “public interest,” Steele again ruled in favor of the defendants. Despite the seemingly straightforwardness of an excerpt from the general nationwide permit stating “division and district engineers can prohibit the use of this [permit] in watersheds for public water supplies, if it is in the public interest to do so,” the Corps argued “the cited text does not relate to the verification process at all.”
Instead, it “was referring to this discretionary authority to prohibit use of a [nationwide permit] generally in a class of activities or locations based on the public interest, rather than in singular verification decisions.”
The claim went undisputed by Baykeeper, Steele noted, leaving him to conclude “the lone sentence highlighted by Baykeeper cannot reasonably be read as imposing an absolute duty on district engineers to perform a public interest analysis as a prerequisite to verifications in an individual case. The language in question speaks to what the Corps ‘can’ do, without specifying what it must do.”
The Corps further believes it met a similar condition cited by Baykeeper in the seven-page decision document awarding the permit to Plains in January 2013, which stated a review of the project resulted in “11 special conditions that Plains Southcap must satisfy and the rationale for each, and sets forth the compensatory mitigation that will be required.”
Finally, the Corps added, any additional investigation would run contrary to the “Congressional intent” of the public interest condition.
“Considering all of these factors … the Court readily concludes that the Corps’ justification of its minimal impacts determination is not so threadbare that the verification decisions were thereby rendered arbitrary and capricious,” Steele wrote. “The Corps has articulated a satisfactory explanation for its minimal impacts determination, including a rational connection between the facts found and the choice made. For that reason, remand to the Corps is neither necessary nor appropriate to require the agency to explain why it did what it did.”
With the judgement, Steele dismissed Baykeeper’s complaint.
In a written statement provided Oct. 17, Baykeeper Executive Director Casi Callaway said, “We had a setback yesterday in our fight to protect our drinking water supply. Although the judge found that the Corps never considered our drinking water intake in verifying a nationwide permit for the pipeline company, he said that the Corps was not required to do so. The nationwide permitting program is a streamlined permitting process that allows applicants to ignore rigorous environmental review. Our drinking water deserves more and better protection. We will keep working for clean water, and we’ll keep working to make sure the local, state and federal agencies, as well as private companies, don’t compromise our water.”
Attorney Jarrod White, who represented Plains in the case, said “we are pleased that after reviewing all of the record and applicable law, the Court has agreed with our position and ruled in favor of the U.S. Army Corps of Engineers and Plains. The (Corps) reviewed the Plains application and the determination was correct in accordance with law. Plains has complied with the government’s regulations in these areas.”
According to the judgment, the pipeline is currently complete and in operation, a fact since verified by a spokesperson for Plains Southcap.
Updated Oct. 17 to include a statement from Casi Callaway.
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