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National Wildlife Federation v. Secretary of United States Department of Transportation

United States District Court, E.D. Michigan, Southern Division

December 12, 2017



          MARK A. GOLDSMITH United States District Judge.

         Plaintiff 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.

         I. BACKGROUND

         A 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. § 1321(j)(5)(F)(i)-(ii).

         The OPA broadly defines the term “facility, ” which unquestionably includes a pipeline.[1]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).

         The 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.

         The 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.

         In 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.

         At the 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 waters.” Id.

         Because 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.

         Since 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.

         NWF 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 CWA.[2] 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.

         According 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.

         The 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.


         When 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 Fed.R.Civ.P. 56).

         III. ...

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