CATX Holding on Line 5!

A new suit in Michigan’s Upper Peninsula may test NEPA’s tolerances for grandfathering.

The pipeline is known simply as “Line 5.”  As an older pipeline, it represents a special kind of risk.  Failure prospects increase as pipelines age.  This one has been operating since 1953.  And ever since it was installed, with the passage of NEPA in 1970 coming and then going, the U.S. Forest Service—administrator of the Huron-Manistee National Forest (under which the pipeline travels for many miles)—has concluded it need not conduct any NEPA review of Line 5.  Which is a bit odd if you think about it.

Issuing a “categorical exclusion” (CATX) for existing pipelines is one thing.  Continuing to do so even as that pipeline ages is something else altogether.  Eventually, Line 5 will represent a significant enough risk of failure that USFS’s decision not to conduct some NEPA review of its continued permitting will become “arbitrary” in the sense of 5 U.S.C. § 706(2)(A).  When that happens, a well-timed lawsuit by users of the National Forest should result in the pipeline permit’s being overturned and remanded to USFS with instructions that it conduct some kind of NEPA review.  Even if that review is a comparatively cursory “environmental assessment” and a likely “finding of no significant impact” (FONSI), it would be more than USFS has apparently done on Line 5 to date.huron

The question is whether the lawsuit the Sierra Club’s local chapter filed in January is the one.  {See Great Lakes Echo’s report here.}

We here at the NEPA Lab have written a bit about NEPA’s handling of pipelines.  New pipelines in particular.  But what about old pipelines, installed before NEPA’s enactment, sitting in the ground ever so silently?
Some of these have been continuously “grandfathered” by some covered federal agency, secure in the knowledge that the pipeline is already there and thus its continued operation won’t create any “impact” in the local environment at all.  If the Sierra Club’s allegations are to be believed, that’s been USFS’s line right along on Line 5.manistee

But NEPA cannot be read to ignore risk.  The risk of an environmental impact—here, the risk that Line 5 fails catastrophically, perhaps, spilling its payload into a particularly beautiful, biologically rich area—can be sufficient to trigger NEPA § 102(2)(C)’s obligations.  Numerous courts have so held.  See, e.g., City of New York v. U.S. Dept. of Transp., 715 F.2d 732 (2d Cir. 1983).  Of course, the concept of “risk” suggests some kind of quantification.  And that might be hard to deliver regarding Line 5.  Which may be why USFS has wanted to avoid a NEPA review . . . .

We’ll be keeping an eye on this suit.

 

{Image: Benton Lake, Manistee NF}

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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