United States District Court, E.D. Michigan, Northern Division
ENVIRONMENTAL LAW & POLICY CENTER, and NATIONAL WILDLIFE FEDERATION Plaintiffs,
UNITES STATES COAST GUARD, and REAR ADMIRAL JOANNA M. NUNAN in her official capacity as Coast Guard District Commander, Defendants.
Patricia T. Morris, Magistrate Judge.
ORDER DENYING PLAINTIFFS' MOTION TO SUPPLEMENT
THE ADMINISTRATIVE RECORD
L. Ludington, United States District Judge.
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. ¶
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.
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.
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.
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,
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.
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