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Sunday, June 23, 2024 | Back issues
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Pipeline Challenge Fails to Nab Federal Injunction

(CN) - A federal judge refused calls from environmentalists to temporarily halt construction of a major oil pipeline that will kill some bats without affecting the colony.

The Flanagan South Pipeline being built by Enbridge Pipelines is a proposed 589-mile domestic oil pipeline that 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 of that species, 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.

In declining to issue a temporary injunction, U.S. District Judge Kentanji Brown Jackson found that the groups significantly overstated the federal involvement in the pipeline project and failed to sufficiently establish that the exhaustive environmental review the plaintiffs seek is required.

The central issue is whether the Army Corps of Engineers erred in believing that the pipeline project satisfied the requirements of the pre-existing general permit known as Nationwide Permit 12 (NWP 12).

"In sum, plaintiffs do not, and cannot, dispute that the general permitting system operates on a different track than the individual project-by-project permitting process for construction project discharges that would otherwise apply under the CWA [Clean Water Act], or that only major federal actions trigger a duty to conduct an environmental review under NEPA [National Environmental Protection Act]," Brown Jackson wrote. "Plaintiffs also disclaim any facial challenge to the general permitting statute or NWP 12 in the context of this action ... and it is clear that when a project proceeds under a valid general permit. NEPA's environmental review obligation and other permitting requirement that would otherwise apply are irrelevant. ... With all this considered, the court sees no clear path to victory for plaintiffs regarding the first aspect of their claim that the Corps violated NEPA when it proceeded to verify that the discharges and other activities related to construction of the FS Pipeline were consistent with NWP 12 without conducting an environmental review."

There is also no showing that the continued construction of the pipeline during the pendency of the litigation will cause irreparable harm, according to the Nov. 13 ruling.

"With respect to the balances of harms, the record as it currently stands shows that Enbridge has committed major resources to the FS Pipeline project over the last 18 months, including engaging in an intensive effort to comply with the myriad state and federal environmental regulations that the pipeline project implicates," Brown Jackson wrote. "The evidence of the time and effort that Enbridge has already put in to the project lends credence to Enbridge's argument that it will suffer harm if the pipeline is indefinitely delayed. Plaintiffs, by contrast, have failed to demonstrate the harms that they allege with specificity in regard to the FS Pipeline in particular, relying instead on general harms they have identified by analogizing this project to other pipelines. While the court is aware of the potential negative environmental consequences that can accrue from the construction and operation of a large oil pipeline, it is also hesitant to weigh these possibilities too heavily without more evidence linking them to this particular pipeline project. Consequently, the court find that the balance of harms tips in favor of Enbridge."

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