Environmental Law & Policy Center v. United States Coast Guard

          Patricia T. Morris, Magistrate Judge.

          ORDER DENYING PLAINTIFFS' MOTION TO SUPPLEMENT THE ADMINISTRATIVE RECORD

          Thomas L. Ludington, United States District Judge.

         On August 22, 2018, Plaintiffs Environmental Law & Policy Center (ELPC), and National Wildlife Federation (NWF) filed a complaint against Defendants United States Coast Guard and Rear Admiral Joanna M. Nunan in her official capacity as Coast Guard District Commander. Compl., ECF No. 1. Plaintiffs allege that the Coast Guard's Northern Michigan Area Contingency Plan (NMACP), certified by the Ninth Coast Guard District Commander, Rear Admiral June E. Ryan, on June 6, 2017, is inadequate to respond to a worst-case discharge, and that Defendants wrongfully approved the NMACP in violation of the Administrative Procedure Act (Count I) and the Oil Pollution Act of 1990 (OPA) (Count II). Id. ¶ 101-110.

         On October 15, 2018, Enbridge, an owner of two oil pipelines known as “Line 5” and the primary risk addressed by the NMACP, moved to intervene as a defendant. ECF No. 12. As the owner and operator of Line 5, Enbridge was entitled to intervention as of right. See Fed. R. Civ. P. 24(a)(2). The motion was unopposed and was granted on November 1, 2018. ECF No. 17. The administrative record was filed on December 17, 2018. ECF No. 20.

         On February 15, 2019, Plaintiffs moved to supplement the administrative record to add Coast Guard Commandant Adm. Paul Zukunft's testimony before the U.S. Senate Subcommittee on Oceans, Atmosphere, Fisheries, and Coast Guard on November 16, 2017, some five months after Rear Admiral Ryan's certification of the NMACP. ECF No. 24. A statement by Admiral Zukunft made before the committee in April of 2015 is included in the administrative record. Defendant responded to Plaintiffs' motion on March 1, 2019. ECF No. 25.

         On April 11, 2019, the Court entered a 22-page order summarizing the following: 1) the Oil Pollution Act's history, purpose, and interpretation; 2) the required content of Area Contingency Plans generally; 3) the specific Northern Michigan Area Contingency Plan applicable here and the Coast Guard's approval thereof; 4) the November 2017 senate testimony Plaintiff seeks to add to the administrative record in which Admiral Zukunft testified that the Coast Guard was not “semper paratus” for a major pipeline spill in the great lakes; and 5) the previous senate testimony from two years earlier to which the November 2017 testimony allegedly relates. A full factual and procedural summary can be found in that order. ECF No. 27.

         The Court directed the parties to submit supplemental briefing addressing the context of Adm. Zukunft's November 2017 testimony as well as the NMACP update schedule. The specific questions posed by the Court are set forth below. Plaintiffs filed their supplemental brief on May 1, 2019, and Defendants filed their supplemental brief on May 15, 2019. ECF Nos. 28, 30.

         I.

         In their initial motion, Plaintiffs provided little more than four pages of analysis and asserted, with no factual support, that Admiral Zukunft's November 2017 testimony was a follow up to the deeper read he promised two years earlier. As explained in the Court's previous order, however:

[T]he November 2017 hearing testimony was not focused on the June 2017 NMACP. The testimony involved several senators and several witnesses discussing a variety of challenges the Coast Guard faces across the country in responding to natural disasters including hurricanes. Senator Peter's questioning of Adm. Zukunft was specifically directed at the Great Lakes, but even that testimony covered a variety of different topics, many of which were unrelated to the Coast Guard's readiness to respond to oil spills. Moreover, even during the limited discussion of the Enbridge Energy Oil Pipeline under the Straights of Mackinac, neither Adm. Zukunft nor Senator Peter's specifically made any reference to the June 2017 NMACP. Nor did they reference Senator Peter's prior discussion with Adm. Zukunft in April 2015 in which Adm. Zukunft promised Senator Peters a “deeper read” on that issue.

Even if Plaintiff is correct, and the Nov. 2017 testimony was a follow up to the “deeper read” Adm. Zukunft promised earlier, there is insufficient context from the Nov. 2017 testimony alone from which to derive any reasoned conclusion. Although a “deeper read” was contemplated, there was no subsequent explanation by Adm. Zukunft about what additional research was done, if any. There was also no explanation of whether Adm. Zukunft's testimony was meant as a substantive criticism of the certified plan itself (the NMACP) as opposed to the Coast Guard's general readiness to respond to spills in the Great Lakes. Again, he did not specifically reference the plan nor is it apparent that he was familiar with the plan.

Order at 19-20.

         In their supplemental brief, Plaintiffs were given an opportunity to provide additional factual information to corroborate their contention that:

• Admiral Zukunft or the Coast Guard did in fact do a “deeper read” after the Admiral's April 2015 testimony that was not considered in conjunction with the ...