Greens Fail in Bid for Review of Oil Pipeline

(CN) - The federal government is not required to perform a full environmental review of a 589-mile oil pipeline when only 28 miles of the project cross federally-controlled land, a federal judge ruled.

The Flanagan South Pipeline being built by Enbridge Pipelines would run from Pontiac, Ill., through Missouri and Kansas and ending in Cushing, Okla. The pipeline would transport tar sands crude oil.

At least 560 of the 589 miles of the pipeline will be built on private land, which does not require federal approval. But about 27.8 miles crosses waterways, Native American lands or other federally owned land that requires federal permission.

This past July, a month before construction began, U.S. Fish and Wildlife Service issued a biological opinion on the expected environmental effects of the project. It predicted "small [and] temporary" effects to a plant known as decurrent false aster, and a small disturbance to the habitat of the American burying beetle.

Though the pipeline construction would likely kill 19 nonreproductive Indiana bats and harm up to 120 others, the agency found that "these impacts are not likely to cause maternity colony impacts."

Sierra Club and the National Wildlife Federation sued The Army Corps of Engineers and a myriad of other federal agencies in Washington, D.C., alleging violations of the National Environmental Protection Act, the Clean Water Act and the Administrative Procedure Act.

U.S. District Judge Ketanji Brown Jackson denied the environmental groups a temporary injunction against the pipeline last year, and found for defendants on all claims Monday.

"[T]his much is clear: a private company is constructing the FS Pipeline project largely on privately-owned land; the federal agencies that have been consulted about aspects of the pipeline project have control over only a small portion of the land and waterways that the pipeline traverses; and no statute authorizes the federal government to regulate or oversee the construction of a domestic oil pipeline," Judge Jackson said.

Therefore, the federal defendants were not required to conduct an environmental impact review of the entire pipeline project before construction began.

"Put another way, the record evidence establishes that the FS Pipeline is not itself an 'action' of the federal government - no matter how earnestly plaintiffs contend that it is - and to the extent that plaintiffs here insist that federal officials must conduct an environmental impact analysis of the entire pipeline anyway, they mistakenly view NEPA [National Environmental Protection Act] not as an appropriate means of informing agency officials about the environmental consequences of major actions that the federal government is poised to take, but as a mechanism for instituting federal evaluation and oversight of a private construction project that Congress has not seen fit to authorize the federal government to regulate," Jackson concluded.

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