The Claims Against USFS’s Pipeline CATX Rejected by District Court

The NEPA claims against the permit may be novel. But they are certainly not trivial.

The Sierra Club’s lawsuit challenging the Forest Service’s grant of a special use permit to the “Line 5” pipeline traversing Michigan (and parts of the Huron-Manistee National Forest) was dismissed by the district  court on September 30.  As our story on the suit noted, the pipeline’s been in service since 1953.  Admittedly, then, the permit is for the continuance of operations—not for the ground-disturbing activities of installation.  But when does an aging pipeline’s risk(s) of failure grow to the point where the action agency may no longer dismiss its failure prospects in a summary NEPA routine such as a categorical exclusion (CATX)?

A local news site characterized Judge Luddington’s dismissal as having “spiked” the Sierra Club’s claims.  And the judge’s opinion was a curt, even summary dismissal of the Sierra Club’s arguments about the risks of an aging pipeline like Line 5.  But it will be interesting to see if a Sixth Circuit panel agrees.  No CATX is appropriate where an otherwise covered activity/action presents “extraordinary circumstances,” see 40 C.F.R. § 1508.4, and it is arguably the case that a pipeline in service for over a half-century presents such circumstances.  Moreover, no CATX is appropriate where the risk of environmental damage (like a pipeline breach) is high enough to be considered “significant.”  See, e.g., City of New York v. U.S. Dept. of Transp., 715 F.2d 732 (2d Cir. 1983).  At what point do a pipeline’s failure prospects grow too large to remain un-investigated?

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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