United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER DENYING PLAINTIFF'S MOTION
FOR SUMMARY JUDGMENT (Dkt. 51) AND GRANTING DEFENDANT'S
CROSS-MOTION FOR SUMMARY JUDGMENT (Dkt. 52).
A. GOLDSMITH United States District Judge.
National Wildlife Federation (“NWF”) seeks a
ruling that Defendant Secretary of the United States
Department of Transportation (“the Secretary”)
has failed - for some two decades - to fulfill
responsibilities under the Federal Water Pollution Control
Act (“Clean Water Act” or “CWA”), 33
U.S.C. § 1321(j)(5), to review spill response plans for
certain oil facilities: namely, inter-connected pipelines
that traverse both land and navigable waters, landward of the
Nation's coasts. The essence of NWF's claims is that
neither the Secretary nor the sub-agencies to which authority
was delegated reviewed plans for the water segments using
criteria mandated by the CWA, and instead used regulations
that can only apply to the land segments of such pipelines.
As explained below, the Court agrees with the Secretary that
NWF has failed to establish standing to raise its claims, as
it cannot show how any alleged procedural error affected
agency action. Thus, the Secretary's cross motion for
summary judgment (Dkt. 52) must be granted, and NWF's
summary judgment motion (Dkt. 51) must be denied.
review of the applicable legislative and regulatory history
puts NWF's claims in focus. A year after the 1989
Exxon Valdez spill, Congress enacted the Oil
Pollution Act (“OPA”), 33 U.S.C. § 2701,
et seq., which amended § 311 of the CWA, with
the goal of preventing another such tragedy by prohibiting
owners and operators of certain oil facilities from
transporting oil unless they had a spill response plan
approved by the President. See 33 U.S.C. §
broadly defines the term “facility, ” which
unquestionably includes a pipeline.The OPA makes the response plan
requirement applicable to owners and operators of
“offshore” facilities and certain
“onshore” facilities. 33 U.S.C. §
1321(j)(5)(F)(i)-(ii). The former are defined as facilities
located under navigable waters of the United States, while
“onshore” facilities are defined as “any
facility . . . of any kind located in, on, or under, any land
within the United States other than submerged land.” 33
U.S.C. § 1321(a)(10)-(11). While response plans are
required for all offshore facilities, the same is not true
for onshore facilities. Regarding onshore facilities, the
response plan requirement applies only to “an onshore
facility that, because of its location, could reasonably be
expected to cause substantial harm to the environment by
discharging into or on the navigable waters.” 33 U.S.C.
§ 1321 (j)(5)(C)(iii)-(iv).
statute does not expressly address whether inter-connected
pipelines over both land and water should be viewed as
embracing a single facility - and characterized as solely
offshore or onshore - or whether they should be viewed as a
compendium of different facilities with separate land and
water segments. According to NWF, interconnected pipelines
consist of two kinds of facilities; the land portion is an
onshore facility, while the portion in or over water is
offshore. The Secretary contends that the entire network of
pipelines is an onshore facility, both the portion that
traverses land and the portion that traverses water. This
fundamental disagreement informs the parties' respective
views of the post-enactment regulatory history and their
legal positions in this case.
President delegated his authority under the statute - to
issue regulations and review and approve response plans - to
different executive branch departments. See
Executive Order No. 127777, 56 Fed. Reg. 54, 757 (Oct. 18,
1991). He delegated to the Department of Transportation
(“DOT”) his responsibilities regarding
“transportation-related onshore facilities.”
Id. The President delegated to the Department of the
Interior (“DOI”) his responsibilities regarding
“offshore facilities.” Id.
1993, the Secretary re-delegated authority for onshore
facilities to an agency within DOT, the Research and Special
Programs Administration (“RSPA”). This authority
was delegated once again, in 2005, to RSPA's successor
within DOT, the Pipeline and Hazardous Materials Safety
Administration (“PHMSA”). See 49 C.F.R.
§ 1.97. In 1993, upon being granted authority, RSPA
issued regulations denominated as “onshore”
regulations. 58 Fed. Reg. 244 (codified at 49 C.F.R. Part
194). In addition to addressing land segments of oil
pipelines, the regulations include references to those
segments of pipelines that cross inland waters. See,
e.g., 49 C.F.R. § 194.115.
same time, DOI issued an Interim Final Rule, 58 Fed. Reg.
7489-01 (February 8, 1993), which established
“requirements for spill-response plans for offshore
facilities including associated pipelines.” The rule
was meant to provide guidance to pipeline operators who were
soon required to submit certain spill response plans to DOI.
The interim final rule included proposed regulations, which
defined the term “offshore” as “the area
seaward of the line of ordinary low water along that portion
of the coast which is in direct contact with the open sea and
the area seaward of the line marking the limit of inland
Executive Order 12777 had expanded DOI's traditional role
of regulating facilities on the Outer Continental Shelf, the
department subsequently delegated its responsibilities
regarding spill prevention to DOT and the Environmental
Protection Agency (“EPA”). In a 1994 memorandum
of understanding, DOI delegated to EPA “responsibility
for non-transportation-related offshore facilities located
landward of the coast line, ” and delegated to DOT
“responsibility for transportation-related facilities,
including pipelines, located landward of the coast
line.” 40 C.F.R. § Pt. 112, App. B.
that time, both RSPA and PHMSA have reviewed response plans
for pipelines situated landward of the Nation's coasts,
without challenge to their authority or the propriety of
their actions until this lawsuit was filed. After this suit
was initiated, the Secretary ratified RSPA's and
PHMSA's approvals, including plans “covering
pipeline segments located in, on, or under inland waters . .
.” See Letter from Sec'y, Ex. B. to Def.
Mot. at 1 (Dkt. 52-3). The Secretary also delegated to PHMSA
“any and all pipeline-related authority”
previously delegated to DOT either through the Executive
Order or the Memorandum of Understanding. Id.
notes that RSPA and PHMSA reviewed the entirety of the
inter-connected pipelines under regulations promulgated for
“onshore” facilities, rather than reviewing
separately the portions that traverse land under onshore
regulations and the portions that traverse water under
offshore regulations. Pl. Mot. at 21. NWF claims that this
means that no review was done for the water segments, which
it views as offshore facilities. NWF also contends that the
review and approval process was deficient in that the
Secretary only considered whether the plans conformed to
regulations, rather than to requirements of the
Id. As a consequence, NWF filed this action,
asserting claims under the Administrative Procedure Act
(“APA”), 5 U.S.C. § 706(1), contending that
the Secretary has failed to perform the nondiscretionary duty
under both the CWA and the Executive Order to review and
approve response plans for offshore facilities, or
unreasonably delayed in performing that duty. See
Am. Compl. ¶ 9, Prayer for Relief.
to the Secretary, the entire network of pipelines is an
“onshore” facility, both the portion that
traverses land and the portion that traverses water, such
that approval of the response plans for the entire pipeline
under “onshore” regulations for over two decades
has been appropriate. Def. Resp. at 21. She notes that
nothing in the statutory provisions expressly addresses
inter-connected pipelines over both land and water.
Id. at 23. The Secretary further argues that the CWA
sets forth a single set of requirements for response plans -
without distinguishing between onshore and offshore
facilities - making it substantively irrelevant that
regulations that by their terms apply to
“onshore” facilities were utilized for portions
traversing water, even if such water-crossing segments should
theoretically be reviewed under criteria designated specially
for offshore facilities. Id. at 30. Further
supporting the Secretary's argument is the fact that no
party has identified any “offshore” regulations
for facilities landward of the coast, suggesting that none
have ever been promulgated. Taking all these factors into
account, the Secretary argues that the decision to approve
inter-connected pipelines under onshore regulations is
entitled to deference under Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837
(1984). Id. at 21. The Secretary also argues that
the agency's review for compliance with the regulations
is equivalent to review for compliance with the CWA, since
the regulations track the statute and were designed to
implement the safeguards mandated by the statute.
Id. at 15.
Court need not, and may not, wade into the merits of the
respective claims and defenses. As explained below, the
threshold doctrine of standing requires dismissal.
STANDARD OF REVIEW
standing is challenged by way of a summary judgment motion,
the factual predicates of all aspects of standing must be
established by the plaintiff through proper evidence of
specific facts. Ctr. for Biological Diversity v.
Lueckel, 417 F.3d 532, 537 (6th Cir. 2005) (“The
plaintiffs cannot carry their burden by generalized
allegations. Because the plaintiffs' standing was
challenged in a motion for summary judgment, the plaintiffs
must . . . ‘set forth specific facts, ' in
affidavits or through other evidence, demonstrating that each
element of standing is satisfied.”) (quoting