Summary
noting that the plaintiffs had an opportunity to file objections to the defendants' privilege logs
Summary of this case from Black Warrior Riverkeeper, Inc. v. Ala. Dep't of Transp.Opinion
Case No. A-98-CA-255-SS
July 19, 2002
ORDER
BE IT REMEMBERED on the 12th day of July 2002 the Court called the above-styled cause for hearing on all pending matters, and the parties appeared by attorney of record. Before the Court are the Plaintiffs' Motion for Summary Judgment [#295] and supplements thereto [#307; 339], City of Austin's Motion for Summary Judgment [#299], Defendant Longhorn Partners Pipeline, L.P.'s Motion for Summary Judgment [#300], and Federal Defendants' Motion for Summary Judgment [#297]; Plaintiffs' response [#325], City of Austin's response [#317], Longhorn Partners Pipeline, L.P.'s response [#319], and Federal Defendants' response [#314]. Also before the Court are the Plaintiffs' Request for Preliminary Injunction [#323], City of Austin's Request for Preliminary Injunctive Relief [#308], Longhorn Partners Pipeline, L.P.'s memoranda in opposition thereto [#321-335], Federal Defendants' opposition thereto [#340], and Plaintiffs' reply [#337] Finally, the Court considers the Defendants' motions to strike declarations filed by the Plaintiffs and the City of Austin in their summary judgment motions [#311, 312, 315] and the Plaintiffs' and City of Austin's response thereto [#331, 333]; as well as Longhorn Partners Pipeline, L.P.'s motion to strike documents filed by the City of Austin [#320] and exhibits filed by the Plaintiffs in their response to the summary judgment motions [#334]. Having considered the voluminous motions and responses, the case file as a whole, the four-volume Environmental Assessment, and the applicable law, the Court enters the following opinion and orders.
Factual and Procedural Background
This case concerns a pipeline that runs across the state of Texas, cutting a jagged path through the 731 miles of cities, towns, farms and ranches between Houston and El Paso, crossing rivers, streams and wetlands in ten major river basins, and lying atop several aquifers and aquifer recharge zones. Exxon Pipeline Company ("Exxon") constructed the 18-to 20-inch diameter pipeline in 1949 and 1950 and transported crude oil through it from Crane to Houston until around 1995. During that time, the pipeline experienced approximately 173 spills and leaks. In 1997, Exxon sold the pipeline to Longhorn Partners Pipeline, L.P. ("Longhorn"), a Delaware limited liability partnership headquartered in Dallas. Longhorn purchased the pipeline in order to transport gasoline and other petroleum products from Gulf Coast refineries to El Paso and on to Arizona, New Mexico and California. The pipeline will eventually move 225,000 barrels per day of gasoline from Houston to El Paso and Odessa.
On April 22, 1998, the Plaintiffs filed a challenge to the proposed Longhorn Pipeline Project ("the Pipeline") in this Court under the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4321-4370d. Plaintiffs Marian Collins and David Robertson own land along the Pipeline in Kimble County and Hays County. Plaintiff Barton Springs — Edwards Aquifer Conservation District is a political subdivision of the state of Texas that conserves and protects groundwater within Travis, Hays, Caldwell and Bastrop counties. In their original complaint, the Plaintiffs sought injunctive relief requiring the federal government to perform a full-fledged review under NEPA of the environmental consequences of the Pipeline. The plaintiffs sued Longhorn, the United States, the United States Department of Transportation ("DOT"), the Department of the Army ("Army"), and the Environmental Protection Agency ("EPA"). The Court allowed the City of Austin ("City") and Lower Colorado River Authority ("LCRA") to intervene as plaintiffs because the Pipeline runs through the City and the LCRA manages a large portion of the water supply over which the Pipeline travels.
plaintiffs also originally named the Federal Energy Regulatory Commission ("FERC") as a defendant, but the Court dismissed FERC because it was only involved in ratemaking.
The Court dismissed the LCRA with prejudice pursuant to Rule 41 of the Federal Rules of Civil Procedure on March 5, 2002 after the LCRA entered into a settlement with the EPA, DOT, United States, and the Army (collectively, the "Federal Defendants") in May 2001.
NEPA requires federal agencies to analyze, "to the fullest extent possible," the potential environmental impact of "major federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332 (2)(C). When this case was young, Longhorn and the Federal Defendants argued the Pipeline is not a "major federal action" under NEPA because the Pipeline is privately owned and operated. Five federal agencies — FERC, DOT, EPA, the Army, and the Army Corps of Engineers — therefore refused to assume responsibility for conducting an environmental review under NEPA of the Pipeline. The parties clung to this position despite Longhorn's plans to use the Pipeline to transport petroleum products to other states and perhaps Mexico; despite Longhorn's need to obtain an easement over Army-owned Fort Bliss in El Paso County to complete the Pipeline; despite the Army Corps of Engineers' authority over pipeline construction and modification affecting navigable waterways; and despite the location of the Office of Pipeline Safety ("OPS"), which is charged with administering DOT regulations to ensure pipeline safety, within the DOT. Needless to say, this Court found the federal agencies' conclusion that the Pipeline did not constitute a "major federal action" under NEPA not only arbitrary and capricious, but ridiculous, and on August 25, 1998, ordered the DOT and/or the EPA to conduct an environmental impact statement concerning the Pipeline in accordance with NEPA. See Order of Aug. 25, 1998, at 33-34. The Court also enjoined Longhorn from placing petroleum products into the Pipeline until this Court, the Fifth Circuit, or the United States Supreme Court orders otherwise. See id., at 32.
On March 1, 1999, the parties entered into a Settlement Stipulation, under which the EPA and DOT agreed to prepare an environmental assessment ("EA") of the Pipeline. The EA would culminate in a Finding of No Significant Impact ("FONSI") or a notice of intent to prepare an Environmental Impact Statement ("EIS"). On March 5, 1999, the Court signed an Agreed Order vacating its previous injunction and enjoining Longhorn from placing petroleum products in the Pipeline until thirty (30) days after the agencies issued an EA decision, but not prior to Longhorn's implementation of mitigation measures upon which a FONSI might be conditioned and that are required to be implemented prior to or upon startup and the lead federal agency's approval of those measures. See Agreed Order of Mar. 5, 1999. The Agreed Order stated if the agencies issued a FONSI, the Plaintiffs could apply to the Court within 30 days to extend the injunction on the basis that the FONSI is arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706. See id.
In accordance with the Settlement Stipulation, the EPA and DOT prepared an EA along with their third-party contractor URS Corporation (formerly Radian International) ("Radian"). On October 29, 1999, the agencies released the draft EA and preliminary FONSI for public review and comment. See 64 Fed. Reg. 58404. The agencies held public hearings on the draft EA and FONSI in Austin, Houston, Fredericksburg, Bastrop and El Paso, and distributed hundreds of copies of the EA and FONSI in counties along the pipeline. Id. In addition to oral comments at the hearing, the agencies received over 6,000 written comments, which they responded to as described in Volume 4 of the final EA. On July 17, 2000, the agencies wrote a letter to George T. Frampton, Jr., the Acting Chair of the White House Council on Environmental Quality ("CEQ") informing Frampton they "have reached an impasse on how to conclude the NEPA process" due to a "difference of view" and asking for the CEQ's recommendation on whether to complete an EIS or issue a FONSI. Plaintiffs' Motion for Summary Judgment, Ex. 10 ("Joint Letter"), at 1, 2. In the letter, the agencies disclosed the "Department of Justice has advised us that, on the present state of the record, it could defend either a FONSI or an EIS, and that the choice is a policy choice for our two agencies." Id. at 2. The record strongly supports the inference that the EPA supported preparation of an EIS, while the DOT preferred to issue a FONSI.
CEQ promulgates regulations under NEPA that "tell federal agencies what they must do to comply with the procedures and achieve the goals of [NEPA]." 40 C.F.R. § 1500.1. The regulations are binding on federal agencies.
On September 7, 2000, the CEQ handed down a response to the agencies' request, recommending the agencies "now promptly finalize the EA and prepare a Finding of No Significant Impact." Plaintiffs' Motion for Summary Judgment, Ex. 14 ("Frampton Letter"), at 1. The CEQ concluded "virtually nothing could be gained in terms of useful environmental information or analysis by `redoing' this extensive document as an EIS, other than sheer delay." Id. at 3. On November 3, 2000, the EPA and DOT issued a FONSI along with the final EA. See Federal Defendants' Notice of Filing Finding of No Significant Impact and Final Environmental Assessment [#159], Att. A ("FONSI").
On February 5, 2001, the Court entered an Order allowing Plaintiffs to amend their complaints and setting deadlines for Plaintiffs to file objections to Defendants' privilege logs and to file motions to include additional documents in the administrative record. See Order of Feb. 5, 2001. In their second amended complaint, Plaintiffs contend (1) the Federal Defendants's decision to issue a FONSI instead of preparing an EIS was contrary to NEPA and its corresponding regulations and was arbitrary and capricious in violation of the APA; and (2) the Defendants breached the Settlement Agreement. See Second Amended Complaint [#201], at ¶¶ 51-53. The City and LCRA also filed amended complaints.
On March 25, 2002, after conducting an in camera review of nine volumes of documents the Federal Defendants withheld as privileged, the Court ordered the Federal Defendants to produce certain non-privileged documents to the Plaintiffs and ordered the parties to file summary judgment motions. All parties filed summary judgment motions on June 10, 2002. The Plaintiffs and City argue the agencies' decision to issue a FONSI instead of prepare an EIS was arbitrary and capricious and urge the Court to vacate the FONSI, require the EPA and DOT to prepare an EIS and issue a Record of Decision concerning the Pipeline, and enjoin Longhorn from placing refined petroleum products into the Pipeline until thirty days after the issuance of the Record of Decision or until further order of this Court, the Fifth Circuit, or the United States Supreme Court. Additionally, the Plaintiffs and City seek summary judgment on their claim that the Defendants breached the Settlement Agreement. The Federal Defendants and Longhorn contend the decision to issue a FONSI was not arbitrary and capricious, the agencies followed the NEPA process, and the Defendants complied with the Settlement Agreement. Over four years after the Plaintiffs originally filed their NEPA challenge to the Pipeline, the process has finally come to a conclusion.
Analysis
I. Standard of Review under NEPA
The Plaintiffs and City contend the agencies should have prepared an EIS discussing the significant environmental impacts of the Pipeline. Under NEPA, agencies must prepare a detailed EIS for "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332 (C). Preparation of an EIS "ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 1845 (1989). Agencies are not required to prepare an EIS "for a non-major action or a major action which does not have a significant impact on the environment." Sierra Club v. Hassell, 636 F.2d 1095, 1097 (5th Cir. Unit B 1981). Agencies may first prepare an EA to determine whether a project's potential impacts on the environment are significant. 40 C.F.R. § 1508.9 (EA serves to "provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact."). After preparing an EA, an agency may issue a FONSI "if the agency determines on the basis of the environmental assessment not to prepare [an EIS]." 40 C.F.R. § 1501.4 (e).
All parties agree NEPA provides a process only; it does not guarantee a result. Robertson, 490 U.S. at 350, 109 S.Ct. at 1846 (1989) (NEPA "does not mandate particular results, but simply prescribes the necessary process."). Because NEPA offers only procedural requirements, not substantive environmental requirements, it "only prohibits uninformed — rather than unwise — agency action." Robertson, 490 U.S. at 351, 109 S.Ct. at 1846. Given the absence of substantive rights within the statute, the "only role for a court is to insure that the agency has taken a `hard look' at environmental consequences; it cannot `interject itself within the area of discretion of the executive as to the choice of the action to be taken.'" Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730 (1976) (citations omitted).
Because NEPA provides no independent right of action, plaintiffs must challenge agencies NEPA decisions under the APA. Under the APA, courts must uphold agency decisions unless the decision is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706 (2)(A). Therefore, the prohibitively narrow question before this Court is whether the agencies' finding that the Pipeline would have no significant environmental impacts was arbitrary and capricious. The Court's role is not to decide whether the undersigned believes the Pipeline will have a significant impact or even whether the agency's finding of no significance is unreasonable. Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 109 S.Ct. 1851 (1989) (agency's decision not to prepare an EIS is reviewable under arbitrary and capricious standard); Sabine River Auth. v. US. Dep't of Interior, 951 F.2d 669, 677 (5th Cir.), cert. denied, 506 U.S. 823 (1992) (abandoning "reasonableness" standard in response to Supreme Court's holding in Marsh). The Fifth Circuit has warned "[u]nder this highly deferential standard of review, a reviewing court has the `least latitude in finding grounds for reversal'" of an agency decision and "may not substitute its judgment for that of the agency." Sabine River, 951 F.2d at 678 (citation omitted).
In determining whether the agencies' decision to issue a FONSI rather than prepare an EIS was arbitrary or capricious, the Court "must studiously review the record to ensure that the agency has arrived at a reasoned judgment based on a consideration and application of the relevant factors." Sabine River, 951 F.2d at 678. The relevant factors are found in the CEQ regulation defining "significantly" for NEPA purposes. To determine the significance of environmental impacts, agencies must consider the "context" of the project and the "intensity" of the impacts. 40 C.F.R. § 1508.7. The regulation identifies ten areas agencies should consider in evaluating "intensity":
(1) Impacts that may be both beneficial and adverse.
(2) The degree to which the proposed action affects public health or safety.
(3) Unique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas.
(4) The degree to which the effects on the quality of the human environment are likely to be highly controversial.
(5) The degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks.
(6) The degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration.
(7) Whether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment.
(8) The degree to which the action may adversely affect districts, sites, highways, structures or objects listed in or eligible for listing in the National Register of Historic Places or may cause loss or destruction of significant scientific, cultural, or historical resources.
(9) The degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species Act of 1973.
(10) Whether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment.40 C.F.R. § 1508.27. The agencies must consider the above factors when determining whether a project may have a significant impact on the environment. A court may set a FONSI aside if the agency fails to consider the above factors or if the record shows the project may have a significant impact on the environment or the agency's review process was so flawed the court cannot determine whether the project may have a significant impact. Fritiofson v. Alexander, 772 F.2d 1125, 1238 (5th Cir. 1985), overruled on other grounds by Sabine River, 951 F.2d at 677. The agencies need not demonstrate the project will have absolutely no adverse effects on the environment. E.g., Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 987 (9th Cir. 1985) ("[S]o long as significant measures are undertaken to `mitigate the project's effects,' they need not completely compensate for adverse environmental impacts." (citation omitted)).
II Summary Judgment Standard
All parties move for summary judgment in this case. A court may grant summary judgment if the moving party shows there is no genuine issue of material fact, and it is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c). In deciding whether to grant summary judgment, the Court construes all facts and inferences in the light most favorable to the nonmoving party. Hart v. O'Brien, 127 F.3d 424, 435 (5th Cir. 1997), cert. denied, 119 S.Ct. 868 (1999). The standard for determining whether to grant summary judgment "is not merely whether there is a sufficient factual dispute to permit the case to go forward, but whether a rational trier of fact could find for the nonmoving party based upon the record evidence before the court." James v. Sadler, 909 F.2d 834, 837 (5th Cir. 1990).
Both parties bear burdens of producing evidence in the summary judgment process. See Celotex Corp. v. Catrett, 106 S.Ct. 2548 (1986). The moving party must first show "if the evidentiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the nonmoving party to carry its burden of proof." Hart, 127 F.3d at 435. The nonmoving party must then provide "specific facts showing that there is a genuine issue for trial," and "[n]either `conclusory allegations' nor `unsubstantiated assertions' will satisfy the non-movant's burden." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986); Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996).
In a case like this one, where the Court is reviewing an agency decision under the APA, summary judgment is the appropriate means for resolving claims because the Court is reviewing the legality of the agency action, not acting as the initial factfinder. In an APA case, the Court addresses the legal question of whether the agency action was arbitrary and capricious, so "the district court's review pursuant to a summary judgment motion cannot turn on credibility determinations or conflicting factual inferences." Sabine River, 951 F.2d at 679. Therefore, the Court finds summary judgment appropriate in this case.
III. The Record before the Court
Defendants move to strike documents and declarations submitted by the Plaintiffs and City, arguing the Court's review of the agencies' decision must be confined to the administrative record. When reviewing an agency's NEPA action under the arbitrary and capricious standard, "the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court." Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244 (1973). The administrative record, which is designated by the agencies, consist of "`the full administrative record that was before the [administrative officer] . . . at the time he made his decision.'" Milena Ship Mgmt. Co. v. Newcomb, 995 F.2d 620, 624 (5th Cir. 1993), cert. denied, 510 U.S. 1071 (1994) (quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415-16, 91 S.Ct. 814, 823-24 (1971). The Court cannot conduct its own analysis of the potential environmental impacts of the Pipeline based on unlimited evidence produced by both sides. Florida Power Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 1607 (1985) ("The reviewing court is not generally empowered to conduct a de novo inquiry into the matter being reviewed and to reach its own conclusions based on such an inquiry.").
The Court can look outside the administrative record under some limited circumstances, however. Sabine River, 951 F.2d at 678 ("A reviewing court is to review the administrative record as well as other evidence to determine whether the agencies adequately considered the values set forth in NEPA and the potential environmental effects of the project before reaching a decision on whether an environmental impact statement was necessary." (emphasis added) (quoting Hassell, 636 F.2d at 1097)). The Court may complete the administrative record with documents the agencies "directly or indirectly considered" when making their decision but did not include in the administrative record. Bar MK Ranches v. Yuetter, 994 F.2d 735, 739 (10th Cir. 1993). If a draft document is not protected by the deliberative process privilege, it should be included in the administrative record. E.g., Public Citizen v. Heckler, 653 F. Supp. 1229, 1237 (D.D.C. 1987).
The Plaintiffs move to complete the administrative record with its exhibits 13, 15, 16, 18, 21, 25, 27, 29, 35, 37, 38 and 41. The Defendants have not opposed this motion. Having reviewed the exhibits, the Court finds they contain non-privileged drafts and/or communications the agencies directly or indirectly considered in arriving at the FONSI decision. Accordingly, the Court considers these exhibits as part of the administrative record. In an apparent oversight, Longhorn did move to strike Exhibits 3, 4, 7 and 8 to Plaintiffs' Response to the summary judgment motions. However, the Court confirms these exhibits are part of the administrative record the agencies designated, and that motion is denied.
The City also submitted extra-record documents as exhibits to its summary judgment motion. Longhorn moves to strike four of these documents. The first, stamped USFW/67 01101, is a handwritten document titled "FW Position" and signed by Longhorn's president, Carter Montgomery. Longhorn contends there is no evidence the agencies relied on this document. However, the document represents negotiations between Longhorn and the Fish Wildlife Service, which were crucial to the agencies' issuance of the FONSI. See Frampton Letter, at 1. Therefore, the agencies likely considered Longhorn's concessions to the Fish Wildlife Service, and the motion to strike is denied. The second and fourth documents, a letter dated August 1, 2001 and a fax cover sheet dated November 29, 2001, came into being after the FONSI decision and are therefore stricken. The City provides no evidence the third document, entitled "Peak Streamflow for Texas," was considered by the agencies. Accordingly, Longhorn's Motion to Strike [#320] is granted in part and denied in part.
Under more limited circumstances, the Court can supplement the record with evidence not considered by the agencies in making their decision. Because one question before the Court is whether the agencies considered all relevant factors, the Court can consider extra-record evidence relating to the Plaintiffs' allegations that the agencies failed to consider all the relevant factors. E.g., Friends of the Payette v. Horseshoe Bend Hydroelectric Co., 988 F.2d 989, 997 (9th Cir. 1993) ("The extra-record inquiry is limited to determining whether the agency has considered all relevant factors and has explained its decision."). Otherwise, the Court would have no way of discerning what relevant factors were missing from the analysis. Nat'l Audubon Soc'y v. Hoffman, 132 F.3d 7, 14 (2d Cir. 1997). Additionally, the Court can supplement the record when "necessary to explain technical terms or complex subject matter." Horseshoe Bend, 988 F.2d at 997. However, plaintiffs cannot attempt to supplement the record for the sole purpose of competing in a battle of experts with an agency, because the Court must defer to the agency's selection of experts. Marsh, 490 U.S. at 378, 109 S.Ct. at 1861 ("When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if as an original matter, a court might find contrary views persuasive."); Sierra Club v. Froehlke, 816 F.2d 205, 214 (5th Cir. 1987) (scientific disagreements among experts "are not the type that the federal courts are in business to resolve.").
Both the Plaintiffs and the City submitted expert declarations along with their summary judgment motions, and the Defendants have moved to strike them because they are not part of the administrative record. The Defendants also argue the declarations are inadmissible under Rule 702 of the Federal Rules of Evidence because the experts have no expertise dealing particularly with pipelines. However, the experts have other relevant areas of expertise, including hydrology, environmental engineering, statistics and environmental science. Additionally, the Defendants contend some experts rely on information obtained after the FONSI was issued. Citizen Advocates for Responsible Expansion, Inc. (I-Care) v. Dole, 770 F.2d 423, 233 (5th Cir. 1985) (the reviewing court "must assess the reasonableness of the agency's determination on the basis of information before the agency at the time the decision not to prepare an EIS was made."). Finally, the Defendants contend the experts offer inadmissible legal opinions. C.P. Interests, Inc. v. California Pools, Inc., 238 F.2d 690, 697 (5th Cir. 2001).
Because this Court's task is to determine whether the agencies took a "hard look" at the relevant factors in evaluating the Pipeline's significance, the declarations the Plaintiffs and City submitted are admissible to the extent they highlight relevant factors the agencies did not consider. However, any legal conclusions and post-FONSI evidence within the declarations and argumentation offered simply to contest the agencies' experts are not admissible. The Defendants' motions to strike are granted in part and denied in part accordingly.
Finally, the Plaintiffs move to strike the declaration of J.P. Sullivan, Jr., which Longhorn relies upon in its opposition to Plaintiffs' motion for preliminary injunction. Longhorn incorporated the declaration by reference, and it was filed in conjunction with civil action A-02-CA-001-SS, which has been consolidated with this case. The Plaintiffs contend they have not had an opportunity to depose Sullivan. Because Longhorn has not asserted the reliability of Sullivan, the declaration is stricken.
IV. Plaintiffs' and City's NEPA Claims
The agencies' decision to issue the FONSI was dependent upon Longhorn's agreement to implement many mitigation measures to reduce the environmental impacts of the Pipeline below the threshold of significance. In preparing the draft EA, the agencies employed a risk assessment model developed by W. Kent Muhlbauer to assess the physical integrity and risk of failure for approximately 8,000 segments of the Pipeline ("the Muhlbauer Model"). See FONSI, at 3. Taking into account approximately 75 variables, the Muhlbauer Model produced numerical index sum scores, which are intended to correlate with probability of failure. Id.; EA Vol. 1, at ES-12. Not surprisingly, the Pipeline scored poorly in this initial evaluation, which indicated the Pipeline had a higher probability of failure than the average pipeline. FONSI, at 3. Longhorn would have to mitigate the risk to avoid a significance finding. The agencies evaluated factors such as population density, proximity to surface and ground water, and protected species habitat along the Pipeline and designated segments of the Pipeline "normal" (Tier 1), "sensitive" (Tier 2), and "hypersensitive" (Tier 3) based on the potential dangers to the environment. Id., EA Vol. 1, at 16. The agencies set target index sum scores for each tier and directed Longhorn to develop a mitigation plan that would reduce the risk in each tier to the target score. FONSI, at 3-4. After Longhorn submitted its final mitigation plan with 40 specific mitigation measures, the agencies found the index sum scores had been reduced such that the residual risk of environmental harm is not significant. FONSI, at 10. In fact, the agencies found the mitigation measures "should render Longhorn's pipeline among the safest in the nation and dramatically safer than the minimum regulatory threshold established by OPS regulations." FONSI, at 10. The issue before this Court is whether this finding of insignificance, and subsequent issuance of the "mitigated FONSI," was arbitrary and capricious. FONSI, at 15.
A. Political Influences
As an overarching concern, the Plaintiffs and City contend the agencies predetermined the mitigated FONSI from the beginning as a policy decision, and the agencies simply tailored the EA to support that decision instead of taking a true "hard look" at the environmental consequences of the Pipeline. By inserting policy goals into the NEPA process, the Plaintiffs argue, the agencies denied their procedural NEPA rights. The Plaintiffs rely on the joint letter from EPA and DOT seeking the CEQ's recommendation on how to conclude the EA process, which states "the choice is a policy choice for our two agencies." Joint Letter, at 2. Additionally, the Plaintiffs point to a deposition of Edward Ray Clark, a CEQ employee at the time of the FONSI, who testified about the "Clinton policy" of integrating and coordinating environmental and economic interests. See Plaintiffs' Motion for Summary Judgment, Ex. 1, at 148; 150. Clark also discussed the abundance of lobbyists representing both sides of the case. Id. at 62-63, 103-04. Clark specifically testified, however, the White House did not use its influence to affect the outcome of the EA. Id. at 74.
The Court has no doubt the White House's policy goals affected the ultimate decision to issue a FONSI, and Longhorn's expensive lobbyists may have been worth their hourly rate. However, the agencies did not request the CEQ's assistance until July 2000, long after they released the draft EA and preliminary FONSI in late October 1999. In other words, the agencies gathered the information, prepared the draft EA and received public commentary — in short, took a "hard look" — before turning to the CEQ for guidance. This Court's task is to ensure the agencies took a hard look at the relevant factors and to decide if their decision was arbitrary and capricious. Reasonable disagreement between two agencies based on a "difference of view" does not render the FONSI decision arbitrary and capricious, and an ultimate blessing by a political entity does not erase the careful study and designation of mitigation measures reflected in the EA. Joint Letter, at 2.
While the existence of White House influence does not spoil the EA process, it does add a certain stench to the FONSI. The major relevant impact of that stench is on the level of deference with which the Court views the decision. Courts must generally defer to agencies' factual determinations that are based on agency expertise. Marsh, 490 U.S. at 377, 109 S.Ct. at 1861 ("Because analysis of the relevant documents `requires a high level of agency expertise,' we must defer to `the informed discretion of the responsible federal agencies.'" (quoting Kleppe, 427 U.S. at 412, 96 S.Ct. at 2731)). Although certain analysis within the EA involves factual determinations, the CEQ's participation in the decision-making process inserts political policy goals into the final FONSI decision. Thus, the Court need not defer to the agencies' expertise in the FONSI decision itself, but may peer behind it into the EA. However, the Court's review of the FONSI decision is still limited to the highly deferential arbitrary and capricious standard.
B. Enforcement of the Longhorn Mitigation Plan
Another major concern of the Plaintiffs and City is the agencies' reliance on the Longhorn Mitigation Plan ("LMP") in issuing the FONSI without a guarantee the plan will be strictly enforced. The agencies acknowledge the Pipeline, without mitigation, would have significant impacts on the environment. See EA Vol. 1, at 9-1 ("The Lead Agencies have determined that mitigation measures are necessary to reduce the potential impacts of the proposed project to a level of insignificance."). With mitigation, the agencies predict the Pipeline will result in three or fewer leaks in the next fifty years, twenty times less than it would before mitigation. Id. at 9-32-33.
The CEQ supports the issuance of FONSI decisions that are dependent upon mitigation ("mitigated FONSIs") because a mitigated FONSI avoids the expense and delay of an EIS, giving the project applicant an incentive to volunteer mitigation measures beyond what agencies could force it to adopt. See FONSI, at 15. In this case, the agencies believe Longhorn's voluntary mitigation measures as part of the FONSI are more comprehensive than they would be following an EIS. Id. at 16 ("[T]he Longhorn EA has resulted in greater mitigation than would likely result from the EIS process.").
The Fifth Circuit has acknowledged courts should consider mitigation measures when evaluating an agency's decision not to prepare an EIS. Louisiana v. Lee, 758 F.2d 1081, 1083 (5th Cir. 1985) ("[T]he only realistic course of action is to consider the conditions in reviewing the [agency's] decision not to file the impact statement."). Other circuits have upheld mitigated FONSIs under the arbitrary and capricious standard. E.g., Greenpeace Action v. Franklin, 14 F.3d 1324, 1335 (9th Cir. 1993); Audubon Soc'y of Central Arkansas v. Dailey, 977 F.2d 428, 435-36 (8th Cir. 1992); Roanoke River Basin Ass'n v. Houston, 940 F.2d 58, 62 (4th Cir. 1991); C.A.R.E. Now, Inc. v. FAA, 844 F.2d 1569, 1574 (11th Cir. 1988); Cabinet Mountains Wilderness v. Peterson, 685 F.2d 678, 682 (D.C. Cir. 1982).
The Plaintiffs and City do not contend the mitigated FONSI is improper; instead, they express concern about whether the LMP will be enforced. Enforceability of mitigation measures is an important factor for the Court to consider. Lee, 758 F.2d at 1083 ("This is not an instance where the proposed mitigating conditions consist of vague statements of good intentions by third parties not within the control of the agency. . . Rather, here the conditions are legally enforceable by the [agency]."). The City takes issue with Longhorn's freedom to choose the mitigation measures in negotiation with Radian, implying Longhorn weaseled out of some mitigation requirements by taking control of the process. See City's Motion for Summary Judgment, Ex. J at URS 022550, 000035. However, it is important to recall Longhorn is the project applicant and as such is responsible for mitigating the Pipeline's risk below a level of significance, so is logically more involved in designing mitigation measures than the agencies. Additionally, many of Longhorn's mitigation promises go beyond what the agencies could require under law. EA Vol. 1, at 9-1 ("These mitigation measures, in many cases, go substantially beyond the legal requirements that apply to US hazardous liquid pipelines.").
While the agencies could not have required such mitigation measures, the LMP enables the agencies to monitor and enforce them. First, Longhorn committed to the mitigation measures unless authorized to modify them by the DOT. EA Vol. 1, at 9-55; Vol. 2, App. 9C, at 51. As the EA notes, "This restriction on their operating control is not placed on any other pipeline in the country." EA Vol. 1, at 9-55. Additionally, under DOT regulations, pipeline companies must adhere to the procedures in their own operation and maintenance manual. 49 C.F.R. § 195.401 (a). Longhorn has incorporated the LMP into its operation and maintenance manual. EA Vol. 4, at 9-29. The DOT will monitor Longhorn through progress reports on the mitigation plan Longhorn must submit quarterly the first two years and annually thereafter. EA Vol. 1, at ES-23; 9-13. Longhorn will make these progress reports available to the public via its web site. Id.; EA Vol. 2, App. 9C, at 50.
The City contends even if the DOT has the authority to enforce the LMP, it will likely not do so because of the OPS`s pathetic enforcement record. See City's Motion for Summary Judgment, Ex. A at DOT 005850; DOT 005150; OR/DOT 005490. However, if courts were to make decisions based on federal agencies' potential to be ineffectual, the words "arbitrary and capricious" would lose their meaning. Additionally, unlike most other pipeline companies, Longhorn has committed to enact the measures and file progress reports without waiting for the OPS to come sniffing around the Pipeline.
Having reviewed the LMP and the record as a whole, the Court finds the agencies' decision to rely on the LMP in issuing the FONSI was not arbitrary and capricious. Among other things, the LMP requires Longhorn to replace the segment of pipe that runs through the Edwards Aquifer recharge and contributing zones with thick-walled pipe covered in concrete; perform an in-line inspection of the pipeline at least every three years; patrol the sensitive and hypersensitive areas every two and a half days, and the remaining areas weekly; enhance public education programs to increase awareness; and refrain from transporting products containing methyl tertiary butyl ether ("MTBE") or similar additives through the Pipeline. EA Vol. 2, App. 9C, at 5; 14; 18-19; 29; 39; 42 49. Longhorn must hire a third-party contractor, approved by the DOT, to conduct an operational reliability assessment ("ORA") of the Pipeline at least annually, and will implement recommendations from the ORA as approved by the DOT. EA Vol. 1, at 9-12-13. The LMP even requires Longhorn to build a refugium for the Barton Springs salamander, the City's favorite bottom-dwelling reptilian. EA Vol. 2, App. 9C, at 46-48. While these measures do not and cannot confirm with absolute certainty the Pipeline will be safe, the agencies' risk assessment model indicates the measures reduce the risk below a level of significance.
C. Uncertainty of Muhlbauer Model
The agencies' quantitative assessment of pre- and post-mitigation risk relies upon the Muhlbauer Model. The Plaintiffs and City contend this model is untested and the results from it are necessarily uncertain. Uncertainty is a factor for courts to consider under the CEQ's definition of "significance." 40 C.F.R. § 1508.27. The EA acknowledges the index sum values, which the Muhlbauer Model uses to measure probability of failure, "generally correlate" but do not definitively correlate with failure probability. EA Vol. 1, at 9-8. Additionally, the "leak frequency estimates have a high degree of uncertainty, primarily due to the limited amount of data available." Id. at 9-35.
While the Muhlbauer risk assessment may not be absolutely certain, the record indicates the Muhlbauer Model is the most widely accepted pipeline risk assessment model available. EA Vol. 4, at 6-27 (the Muhlbauer Model "appears to be the most widely adopted pipeline risk model currently available."). And as the Defendants point out, the Plaintiffs do not suggest an alternative model. Moreover, the agencies' selection of the Muhlbauer Model involves precisely the type of scientific expertise to which courts must defer. The agencies selected the Muhlbauer model over contrary public commentary (as well as internal debate), finding "[i]t is well suited to the EA application in terms of comprehensiveness and its ability to indicate improvement opportunities (mitigations)." Id.; Plaintiffs' Motion for Summary Judgment, Ex. 19 at EPA 017009-11. The agencies acknowledged the uncertainty of the predictions and ultimately decided the model was the best available. EA Vol. 1, at 6-58 ("As with other estimates, this approach has considerable uncertainty but is felt to be the most realistic appraisal of post-mitigation leak rates."). Most importantly, the Plaintiffs' quibble with agencies' use of the Muhlbauer Model does not detract from the more relevant fact that the agencies engaged in the NEPA process and underwent an in-depth risk analysis of the Pipeline.
The Plaintiffs and City also argue the agencies altered the Muhlbauer Model by removing the consequences portion of the analysis to support their FONSI decision. The EA explains the agencies chose to omit the consequences factor in favor of the tiering approach for analyzing impacts. EA Vol. 1, at 6-16; FONSI, at 3 n. 3. This alteration does not mean the agencies did not analyze the impacts at all; it merely means the agencies made a choice about which method would best suit this particular project — a choice that merits deference.
Finally, the Plaintiffs contend the agencies illogically relied on spill data from the DOT/OPS database instead of the historic spill data from the Exxon pipeline itself, despite the inaccuracies within the DOT/OPS database. See Plaintiffs' Motion for Summary Judgment, Ex. 21-23. The EA discusses the Exxon historical spill data and its limitations. EA Vol. 1, at 5-78; 6-58-59. Additionally, contrary to the Plaintiffs' assertion, the agencies contend the spill frequency estimates do utilize the historic spill data. Id. at 5-78-79. The EA clearly does not ignore the historic spill data from the Exxon pipeline, but discusses it at length. Id. at 5-69-76. Therefore, this contention does not demonstrate the agencies' reliance on the Muhlbauer Model was arbitrary and capricious.
D. Old Pipe
The Plaintiffs and City contend the agencies did not adequately consider the dangers associated with the approximately 450 miles of the Pipeline constructed in 1950. EA Vol. 1, at 3-2. They point specifically to electric resistance welding ("ERW") pipe, which makes up over fifty percent of the Pipeline and has a "higher susceptibility to certain failure mechanisms" than newer pipe. Id. at 5-7. ERW pipe has a longitudinal weld seam that renders the pipe more vulnerable to corrosion and fatigue. Id. The EA estimates ERW pipe was responsible for one major spill and possibly six smaller spills during the Exxon pipeline's operation. Id. at 5-82. While ERW pipe is not illegal, government agencies have issued advisories about its use. Id. at 5-8.
Understandably, the age of the Pipeline concerned the agencies, and the EA acknowledges and confronts those concerns. To counter the effects of age, the agencies required mitigation measures. Based on hydrostatic (water-pressure) testing and in-line ("smart pig") testing of the Pipeline in 1995, Longhorn has repaired and replaced some pipe. Id. at 5-11-15. In the LMP, Longhorn committed to further hydrostatic and in-line testing during the operation of the Pipeline. EA Vol. 2, App. 9C, at 28-29.
The Plaintiffs and City contend the in-line inspection data from 1995 is no longer reliable, since the results are only valid for a finite period. EA Vol. 1, at 5-13. However, the EA also notes "the opportunity for operational-related anomaly growth was limited or non-existent because the pipeline was not in operation since the 1995 inspection." Id. at 5-15. Additionally, Longhorn has committed to perform further in-line testing within three months of startup. FONSI, at 9.
The EA demonstrates the agencies acknowledged the ERW pipe's risks as a relevant factor in its significance determination. The EA does not conceal the hazards of the old pipe, but highlights them and addresses ways to mitigate the danger. Ultimately, the agencies decided Longhorn's mitigation measures would adequately resolve those dangers and reduce the project's impact below the level of significance. Congress has only authorized federal courts to ensure the agencies considered all the relevant factors and has not permitted this Court to decide whether the Court would let Longhorn shoot gasoline through 52-year-old pipe for 731 miles where failure would be disastrous for thousands of people and for years to come. Unfortunately, on this record, the Court cannot say the agencies did not consider the Pipeline's age as a relevant factor in its significance determination.
E. Pump Stations
The Plaintiffs and City protest that the agencies ignored the environmental impacts of the nineteen pump stations along the Pipeline, even though the pump stations are clearly relevant to the probability of failure due to their historic failure rate on the Exxon pipeline. Longhorn plans to construct new pump stations and refurbish existing stations, and at the time of the EA the agencies did not know where all the future pump stations would be. EA Vol. 1, at 3-6-3-7; 3-1 n. 1; EA Vol. 2, App. 3D. The Exxon spill data shows four times more major spills occurred at pump stations than along the pipeline: 147 leaks in 29 years. Id. at 5-117; 6-18.
The agencies did exclude the pump stations from the risk assessment analysis and probability of failure estimates. EA Vol. 2, App. 9B at 9B-A-1 ("Pump stations are excluded from this [probability of failure] analysis, but could be dealt with separately in a similar manner."). As the EA explains, the agencies decided not to include the pump stations in the risk assessment analysis because pump stations have different risk considerations than the rest of the Pipeline. EA Vol. 1, at 6-18. Additionally, the predictive power of the historic leak data for the Exxon pump stations is limited because Longhorn has completely refurbished the old stations and has constructed (or will construct) at least a handful of brand-new stations. Id. Instead of applying the risk assessment analysis to the pump stations, Longhorn analyzed and will analyze each pump station using Hazard and Operability Studies ("HAZOPS"), a risk assessment technique that "relies on a structured and comprehensive question-answer approach and expert participants to identify and remedy potential safety and operability issues." EA Vol. 1, at 9-25; Vol. 4 at 6-3; 6-33. The EA addresses a January 1999 HAZOPS analysis of the existing pump stations, concluding "[r]esults of these studies revealed some safety and operability issues that did not appear to be critical." EA Vol. 1, at 6-19. The agencies determined the HAZOPS analysis is the appropriate risk assessment method for the Pipeline's pump stations.
Additionally, Longhorn has committed to important mitigation measures concerning its pump stations. Because new pump stations may be located over karst aquifers, Longhorn must prepare site-specific environmental studies for each new pump station at least 180 days before construction begins. EA Vol. 1, at 7-92; Vol. 2, App. 9C at 49. Additionally, the above-ground storage tanks within the pump stations will be surrounded by secondary containment systems. EA Vol. 2, App. 9C at 42. While only five percent of the volume of pump stations spills from the Exxon pipeline occurred after 1982, most of those spills were attributed to tank problems. EA Vol. 1, Figs. 5-17, 5-18; Plaintiffs' Motion for Summary Judgment, Ex. 34. Pump stations are fenced and locked, although unmanned, and will be under video surveillance. EA Vol. 1, at 6-18; Vol. 2, App. 9C at 40. Each pump station will be remotely controlled and operated by the centralized Supervisory Control and Data Acquisition ("SCADA") system in Tulsa, Oklahoma. EA Vol. 1, at 5-22. Additionally, the stations can be locally controlled by emergency shutdown devices and alarms located at each station, and low suction pressure will cause the pump to shut down automatically. Id. at 5-23. Longhorn has also committed to pump station inspections every two and a half days in sensitive and hypersensitive areas. EA Vol. 2, App. 9C at 39.
The EA demonstrates the agencies did consider the risks associated with pump stations, even though they did not include pump stations in the risk assessment analysis. Based on the causes of Exxon pump station spills and Longhorn's mitigation commitments addressing those causes, the agencies found the minor leaks that could occur at pump stations would be "generally small, confined to the facility site, quickly discovered, and soon remedied." FONSI, at 11 n. 9. In other words, the agencies considered the pump stations as a relevant factor and determined their risk to be insignificant.
F. Impacts on Water Supply
Chapter 7 of the EA devotes a section to impacts on ground water and a section to impacts on surface water. Nevertheless, Plaintiffs contend the EA fails to analyze the Pipeline's impacts on private wells and the Edwards-Trinity Aquifer. The City attacks the EA's water modeling studies concerning surface water. The Court will not critique the agencies' chosen water modeling methodology, because the choice of methodology deserves deference. The Court will, however, address the Plaintiffs' claims that the agencies did not consider the relevant factors concerning the Edwards-Trinity Aquifer or private wells.
The EA defines the location of the Edwards-Trinity Aquifer, which is one of the largest aquifers in Texas, and describes it as "highly vulnerable to contamination." EA Vol. 1, at 4-20-21. The EA discusses the potential for karst features and the associated increase in vulnerability of ground water resources. Id. at 4-24-25; 7-27. Although the EA acknowledges not much study has been done on the Edwards-Trinity Aquifer and the agencies did not perform a ground water modeling study on it, the EA describes the characteristics of the aquifer and estimates "any spill of 500 bbl or greater has a 50 percent probability of occurring at a place where it is more likely to impact ground water supplies." Id. at 7-25; 7-28. The EA classifies this estimate as "conservative." Id. at 7-28. Thus, contrary to Plaintiffs' assertions, the agencies discussed the relevant features of the Edwards-Trinity Aquifer and reached a conclusion about its vulnerability to leaks and spills. Additionally, one of the appendices to the EA is a technical memorandum prepared for Radian regarding groundwater modeling for certain aquifers; this document discusses the Edwards-Trinity Aquifer for ten pages. After studying the aquifer, the agencies' decision not to classify the Pipeline located atop the Edwards-Trinity Aquifer as sensitive or hypersensitive is entitled to deference.
The Plaintiffs seem to argue the agencies should have commissioned an in-depth study of the Edwards-Trinity Aquifer before reaching the FONSI decision. However, such in-depth study is not required by NEPA, and the agencies would not have been obligated to perform such a study even as part of an EIS. E.g., Utah Shared Access Alliance v. United States Forest Serv., 288 F.3d 1205, 1211 (10th Cir. 2002) ("The Forest Service concedes it did not undertake a comprehensive watershed study on the magnitude of the one described in the [Guide to Predicting Sediment Yields], but correctly points out that NEPA did not mandate such a massive study as a prerequisite to action.") (citing Sierra Club v. Lynn, 502 F.2d 43, 61 (5th Cir. 1974)).
The Plaintiffs and City contend the agencies did not take private wells into account in determining the Pipeline's potential impacts on the water supply. It is true the agencies did not consider private wells in their determination of sensitive and hypersensitive areas. EA Vol. 2, App. 7A, at 2; Vol. 1, at 7-32. However, the agencies did consider the impact on private wells as "a criterion for requiring additional mitigation measures for the entire pipeline, and for requiring mitigation directed at addressing the needs of well owners." EA Vol. 1, at 7-32. While the draft EA apparently assumed the private well owners could seek remedies through litigation, the comments convinced the agencies a solution that did not depend on at least a year's delay and legal fees would be preferable. EA Vol. 4, at 9-37-38. Thus, Longhorn provided a separate mitigation plan for domestic water wells, whereby it will identify private wells along the Pipeline, provide early warning to owners in the event of a spill, monitor private wells for contamination should a spill occur and provide mitigation measures in the case of contamination. EA Vol. 2, App. 9F; App. 9C at 45. The Plaintiffs argue the mitigation plan only applies to wells within 2.5 miles on each side of the Pipeline. While this may be a valid complaint, it is a far cry from contending the EA does not consider the relevant factor of the Pipeline's impacts on private wells. On the contrary, the Court finds the agencies adequately considered this factor and concluded it was insignificant given Longhorn's mitigation plan addressing the potential impacts. As a whole, the agencies gave in-depth consideration to the Pipeline's potential impacts on surface and ground water sources and the potential for drinking water contamination.
G. Five-Minute Shutdown
The Plaintiffs and City contend the EA relies on a five-minute shutdown estimate that is unrealistic and thereby underestimates the impact of a spill. They contend the Pipeline can only shut down in five minutes in the best-case scenario. The Plaintiffs point to reservations agency and Radian personnel expressed about the feasibility of the Pipeline being able to shut down within five minutes of detection of a spill. Plaintiffs' Motion for Summary Judgment, Ex. 37; 40.
The Pipeline's leak detection systems are part of Longhorn's mitigation plan. The five-minute shutdown estimate is based on a worst-case scenario, a full breach of the Pipeline and the accompanying large volume spill. The SCADA system discussed above will detect a large-volume spill and set off alarms in the remote monitoring center in Tulsa, prompting personnel to shut down the remote-controlled pumps and valves along the Pipeline. EA Vol. 4, at 6-19; Vol. 2, App. 9C, at 31. The pumps can also shut down automatically in response to low suction pressure, which would result from a large leak. EA Vol. 4, at 6-19; Plaintiffs' Motion for Summary Judgment, Ex. 37. While the five-minute shutdown is only realistic for large leaks, smaller leaks that take longer to detect will result in approximately the same amount of volume discharged. EA Vol. 2, App. 6B, Table 1. Longhorn has also committed to install, prior to startup, a hydrocarbon sensing leak detection cable system in the Edwards Aquifer Recharge Zone and the Slaughter Creek watershed of the Edwards Aquifer Contributing Zone, which will detect a leak of .0030467 barrels per hour in twelve to 120 minutes. EA Vol. 2, App. 9C, at 32.
The record demonstrates the agencies considered the same concerns the Plaintiffs and City raise and required Longhorn to clarify and justify the five-minute response time. Plaintiffs' Motion for Summary Judgment, Ex. 40. The agencies did not blindly rely on the estimate or fail to explain or discuss it in the EA. While the Plaintiffs and City maybe skeptical the leak detection system will actually work, this skepticism is not grounds for finding the agencies' decision arbitrary and capricious.
H. Cumulative Impact of Other Pipelines
The Plaintiffs and City allege the agencies failed to consider the potential cumulative impacts of the Pipeline from its shared corridor with other pipelines. The CEQ's regulatory definition of "significance" requires agencies to consider "[w]hether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment." 40 C.F.R. § 1508.27. The United States Court of Appeals for the District of Columbia Circuit recently held the Federal Aviation Administration should have considered the cumulative impact of construction of a new airport on noise pollution in a nearby national park. Grand Canyon Trust v. Fed. Aviation Admin., 290 F.3d 339, 347 (D.C. Cir. 2002). In analyzing cumulative impacts, agencies should consider: "(1) the area in which effects of the proposed project will be felt; (2) the impacts that are expected in that area from the proposed project; (3) other actions — past, proposed, and reasonably foreseeable — that have had or are expected to have impacts in the same area; (4) the impacts or expected impacts from these other actions; and (5) the overall impact that can be expected if the individual impacts are allowed to accumulate." Fritiofson, 772 F.2d at 1245.
Chapter 7 of the EA discusses cumulative impacts of the Pipeline and concludes there are no cumulative impacts from construction or normal operation of the Pipeline. EA Vol. 1, at 7-86-87. The EA also addresses the potential cumulative impacts from the other pipelines located along the same corridor as the Pipeline. EA Vol. 1, at 7-87; Vol. 4, at 6-44. Longhorn shares a corridor with several other pipelines and runs parallel to two of them for approximately 265 miles, one of which transports crude oil and the other natural gas. EA Vol. 1, at 7-88. The EA details the proximity of the parallel pipelines and the potential safety risks such as exposed pipe. Id. at 7-89-90. Because "[t]he potential influence of one pipeline on another would depend on the separation distances between pipelines," the agencies examined the distance between the pipelines, especially in Harris and Travis Counties. Id. at 7-89. The pipelines do not come within 19 feet of each other. Id. at Table 7-11. The agencies noted "[m]ultiple pipelines result in a higher absolute risk to a receptor than a single pipeline(s) in the same vicinity. Assuming pipelines pose the same risk, the combined risk would be three times the risk of one pipeline." Id. at 7-90. Despite the greater combined risk, the agencies "concluded that the likelihood of such an accident is low," because the DOT knew of only one accident in ten years where a pipeline explosion has caused damage to an adjoining pipeline. Id. Based on this conclusion, the agencies did not include the potential for a chain reaction in the formal risk assessment analysis. Id. at 6-26. The agencies also noted the potential benefits of multiple pipelines such as increased surveillance and public awareness. Id. at 7-91. While the Plaintiffs critique the EA's analysis of cumulative impacts, they cannot show the agencies failed to consider them. On the contrary, the EA analyzes the general cumulative impacts of the Pipeline and the specific issue of proximity of other pipelines.
I. Third-Party Damage and Sabotage
The Plaintiffs and City contend the agencies did not adequately consider the impacts of third-party damage, particularly sabotage, when third-party damage was the primary cause of spills on the Exxon pipeline. EA Vol. 1, at 5-82 ("The primary cause of pipeline spills of 50 bbl or greater in size has been outside force."). The potential for third-party damage is exacerbated by exposed and shallowly buried pipe. Id. at 5-81 (discussing shallowly buried pipe). The EA addresses the vulnerability of exposed pipe and shallowly buried pipe. Id. at 5-19 ("Exposed pipe, while reducing the chance of accidental damage from excavation strikes, might be a concern because of the increased vulnerability to outside force damage other than excavation (e.g. vandalism) and because of the potential for coating deterioration and atmospheric corrosion. It is not clear whether an exposed pipe has more risk of third-party damage than buried pipe. It is often assumed that shallow burial, less than six inches, for example, is worse than a full exposure since the cover is inadequate to provide much protection, but does conceal the presence of the pipeline."). Longhorn surveyed the exposed pipe and the EA identifies the exposed areas. Id.; see also Figure 5-10; Table 7-8. The EA also considers the vulnerability of exposed pipe at stream and ditch crossings. Id. at 5-21 ("[S]maller stream and ditch crossings in the Houston area, where there is potential vulnerability to vandalism, show evidence of use as footbridges, graffiti painting, and tampering with the protective coatings.").
In addition to describing the potential vulnerability of the Pipeline to third-party damage, the EA includes third-party damage as one of the four factors contributing to probability of failure in the risk assessment analysis. Id. at 6-24-25. The Plaintiffs attack the agencies' decision not to include the risk of sabotage in the formal risk assessment. The EA explains the agencies' decision as follows: "The risk of sabotage is difficult to fully assess since such risks are so situation-specific and subject to rapid change over time. The assessment would be subject to a great deal of uncertainty, and recommendations would be problematic. This type of assessment is not thought to add significant value to the EA." Id. at 6-25. While the Plaintiffs may not support this choice, the agencies considered the risk of sabotage and made a reasoned decision not to include it in the risk assessment. However, Longhorn committed to mitigation measures to address the risk of sabotage and other third-party damage, including clear and bountiful pipeline markers, frequent aerial and ground surveillance, excavator education and public education. EA Vol. 2, App. 9C at 89-92; App. 9B, at 9B-B-1. Accordingly, the Court finds the agencies considered third-party damage and sabotage as relevant factors in the EA analysis.
Plaintiffs take issue with Longhorn's decision not to include warnings to deer hunters in its educational materials. However, the EA addresses why Longhorn does not include such warnings. EA Vol. 4, at 5-16 ("Depending on the terms of specific easement agreements along the [right of way], Longhorn would usually not have any control over activities such as hunting. The control of hunting activities would therefore be the responsibility of the respective landowners along the ROW. At the current time, Longhorn does not plan to include comments regarding hunting in its educational material."). The Federal Defendants' assumption that hunting along the right of way is a "remote or speculative" possibility, however, reminds the Court that the Department of Justice is in fact located in Washington, D.C. Federal Defendants' Reply, at 38 n. 13.
V. Breach of Settlement Stipulation
While many of the above NEPA arguments relate to the Plaintiffs' and City's claim of breach of the Settlement Stipulation, some contentions relate more directly to their contract claims. Under the Settlement Stipulation of March 1, 1999, the agencies agreed to prepare an EA on the Pipeline that (a) identifies surface and ground water resources, land resources and uses, and flora and fauna in the vicinity of the Pipeline; (b) discusses the environmental consequences of the Pipeline, including a discussion of pipeline integrity and a risk assessment analysis; and (c) identifies and analyzes alternatives. EA Vol. 2, App. 1A. The Court finds the Defendants did not breach the Settlement Stipulation in any of the areas discussed above. The Court discusses the remaining breach arguments below and concludes the Defendants complied with the Settlement Stipulation.
A. Consideration of Alternatives
The Plaintiffs and City contend the EA does not contain a sufficient analysis of alternatives to the proposed project. This argument fails under NEPA, because the law only requires the EA to contain "brief discussions" of the alternatives to the proposed action. Fritiofson, 772 F.2d at 1236. The Settlement Stipulation requires the agencies to identify a range of alternatives, including re-routing alternatives that would avoid Austin and various aquifers, consider the alternatives, and explain why the alternatives are selected or eliminated from detailed study. EA Vol. 2, App. lA, at 27-29. Additionally, the agencies agreed to "evaluate in detail those alternatives that are determined to be reasonable means of mitigating significant environmental impacts." Id. at 29.
The Plaintiffs and City argue the agencies did not truly consider the Austin re-route alternative but allowed Longhorn to designate an alternative route that doomed it to fail. The Settlement Stipulation does not prohibit Longhorn from identifying the alternative routes. Longhorn identified a 21-mile alternative route to replace a 12-mile segment of the Pipeline located in highly populated south Austin. EA Vol. 1, at 4-13; Fig. 3-1. The alternative would avoid approximately 2,893 south Austin dwellings, and "potential impacts to human health and safety residing near the Austin Re-Route are much lower than for the proposed pipeline, based on this difference in population density." Id. at 7-16.
Despite the current lower population density of the alternative route, the EA notes "much of the areas of south Travis County and northern Hays County near and west of the I-35 corridor are currently subject to heavy development pressures." Id. at 7-16, 7-83. Additionally, the alternative would pass over 8.2 miles of hypersensitive karst aquifer, compared to the 3.0 miles of the existing Pipeline. Id. at 7-35. The agencies recognized the difficulty of re-routing the Pipeline further south due to the sensitivity of the Edwards Aquifer and the potential impacts on the San Marcos water supply and the endangered Barton Springs salamander. Id. at 7-35, 7-42; see also 7-50, 7-69. There would be additional environmental impacts from the 22 days it would take to construct the Pipeline. Id. at 7-76. These impacts render the Austin re-route alternative less environmentally sound than the current route. Id. at 9-50-51. The EA demonstrates the agencies complied with the Settlement Stipulation by identifying an alternative, considering the positive and negative impacts of the alternative, and abandoning the idea because of greater environmental harm.
The agencies also afforded sufficient analysis to the aquifer avoidance alternative. This alternative would veer to the north, just south of Waco, and require construction of 370 miles of new pipe. EA Vol. 1, at 7-8. The alternative pipeline would have less affected population residing along the route than the current Pipeline. Id. at 7-17. Only approximately 80 miles of the alternative route would pass over karst aquifers, as opposed to 175 miles of the existing Pipeline. Id. at 7-35. The EA describes the protected species and water supplies along the alternative route. Id. at 7-43-44, 7-50-52, 7-69. Construction of the new segment would last approximately 12 to 18 months, and up to 13 new pump stations would also need to be built. Id. at 7-77.
After considering and analyzing the aquifer avoidance alternative, the agencies rejected the alternative. Although the alternative would avoid Austin and the sensitive aquifers in this region, the construction would cause short-term impacts on the environment and, unlike the current Pipeline route that is shared with other pipelines, would expose a new population to pipeline risks. Id. at 9-48-49. Additionally, the agencies determined "it is unlikely the [alternative] would serve the proposed project's purpose, i.e. allowing Longhorn a means to transport refined petroleum products to the markets in which it hopes to compete. The additional costs of constructing 370 miles of new pipeline, estimated at $300 million, would likely eliminate Longhorn's potential ability to compete in those markets." Id. at 3-17. Therefore, the agencies concluded the aquifer avoidance alternative was not "a feasible means of accomplishing fundamental project purposes." Id. This conclusion and the analysis leading up to it complied with the Settlement Stipulation.
B. Environmental Justice Concerns
The Settlement Stipulation requires the agencies to consider any environmental justice issues associated with the operation of the Pipeline, including the location of pipe in certain residential areas. EA Vol. 2, App. lA, at 27. An environmental justice analysis determines whether there are any disproportionately high adverse human health or environmental effects on minority or low-income populations. EA Vol. 1, at 8-1. The Plaintiffs and City contend the agencies did not adequately consider environmental justice concerns.
The EA devotes an entire chapter to environmental justice concerns. The agencies reviewed the potential impacts of the project, the potential impacts on minority and low-income populations, the potential disproportionately adverse impacts, and the impacts of mitigation measures. Id. at 8-3. The agencies concluded "the proposed project would not have any disproportionately high and adverse effects on minority and low-income populations during normal pipeline operation scenarios. Furthermore, there is no evidence of disproportionately high and adverse effects along a majority of the pipeline in the event of a pipeline failure." Id. at 8-1. The City contends the agencies did not consider the effects of Longhorn's replacement of nineteen miles of pipe in southwest Austin, an apparent concession to the Fish and Wildlife Service in exchange for a Letter of Concurrence regarding the Pipeline's effects on the Barton Springs salamander, with no attendant provision of new pipe in southeast Austin. However, the agencies did consider the environmental justice impacts of this new pipe and concluded "mitigation measures proposed in the LMP for Travis County provide an acceptable level of protection to minority and low-income populations." Id. at 8-27-30. The Court finds the EA's lengthy discussion and analysis of environmental justice concerns satisfies the Settlement Stipulation.
C. Involvement of Austin Fire Department
The Settlement Stipulation requires the agencies to invite the Austin Fire Department to be a cooperating agency, and the City contends the agencies failed to do so. Therefore, the City argues, any emergency response plan of Longhorn's must be inadequate. However, the record indicates the agencies did invite the Austin Fire Department to participate in the EA process as a cooperating agency on March 26, 1999. Longhorn's Response to Summary Judgment Motions, Ex. 1. Additionally, in May 2002 the Fire Marshal rejected an invitation by Longhorn to participate in emergency response drills. Id., Ex. 2. The Court finds the agencies' invitation to the Austin Fire Department complied with the Settlement Stipulation.
Conclusion
Having reviewed the record, the Court finds the FONSI complies with NEPA because "the agency decision is founded on a reasoned evaluation of the relevant factors." Utah Shared Access, 288 F.3d at 1213 (citing Marsh, 490 U.S. at 373-74, 109 S.Ct. 1851). While the agency could have discussed some factors more carefully, the Plaintiffs and City cannot say the EA fully fails to discuss any relevant factor. Utah Shared Access, 288 F.3d at 1213 ("It is true here, as it is in every case, that the agency could have discussed the relevant environmental impacts in greater detail."). The EA in this case was quite lengthy and detailed, and goes far beyond NEPA's requirements for an EA. Sabine River, 951 F.2d at 677 ("[T]he EA is a `concise' document that `briefly' discusses the relevant issues") (quoting CEQ regulations concerning NEPA). An EIS might result in more "excellent paperwork," but the Court agrees with the agencies that an EIS would provide essentially nothing more to ease the fears of the Plaintiffs and Austin residents. 40 C.F.R. § 1500.1 ("NEPA's purpose is not to generate paperwork — even excellent paperwork — but to foster excellent action."). The leftover uncertainties result from the unavailability of data and the simple fact that predictions based on mitigation measures that have not yet been done are necessarily uncertain. What the Plaintiffs and City really want — no gasoline flowing through the Pipeline, certainly not through 52-year-old pipe, through our backyards and over our aquifers — would not be accomplished through an EIS.
While this case is about the Pipeline, it is more essentially about following a process that Congress guaranteed to Americans. As described above, the Court finds the agencies made good on Congress's promise and followed the process. This Court is part of the process too, for the balance of power that is the basic and fundamental process keeping the federal government afloat requires federal courts to defer to Congress's statutory restriction of courts' role in the NEPA process and delegation of authority to administrative agencies. The undersigned personally is extremely concerned Longhorn will begin pushing high-grade gasoline through the Pipeline in less than a month, which it has assured the Court it intends to do. The Court finds no consolation whatsoever in the fact that Longhorn is a limited partnership with limited liability and has only $15 million of liability insurance. Had the Court been granted more discretion, at a very minimum the undersigned would find it reasonable to order Longhorn to replace the 52-year-old pipe in all populated areas and in areas that affect people's drinking water supply. However, the Court has no such discretion and recognizes the importance of staying within the sharp boundaries of judicial review. And while the Plaintiffs and the City are undoubtedly far from excited about the Pipeline's imminent startup, the Court hopes they find some reassurance in Longhorn's "unprecedented" mitigation measures for the Pipeline, which likely would not have come about but for their fervent and articulate NEPA challenge. The mitigation measures are a product of the effective process. Time will only tell if the mitigation measures will be sufficient to contain the dangers inherent in this decrepit Pipeline, and the people and critters in its threatening shadow can only hope and pray that they will.
And finally, the Court turns to the costs of suit. The Plaintiffs filed this lawsuit seeking the only legal relief available, and that was an investigation of this Pipeline with regard to environmental impacts under NEPA. The Federal Defendants disclaimed any responsibility, and all Defendants contended this Court could not have jurisdiction and there were no lawful procedures available to the Plaintiffs to obtain a NEPA investigation. The Plaintiffs won relief in several ways. First, the government finally admitted its responsibility and selected the DOT's Office of Pipeline Safety as the responsible agency. Plaintiffs then obtained an in-depth investigation of the Pipeline and resulting EA, which took over a year and a half. Plaintiffs also in the process received significant mitigation concessions from Longhorn along with a commitment that the OPS will ensure the completion of those mitigation features and closely monitor this Pipeline that puts in jeopardy thousands of people who live above it and many more thousands of people who depend upon the water it runs through. of course, the Plaintiffs did not get what they really wanted, which was to stop the Pipeline, but that simply wasn't in the cards dealt by the United States Congress. Therefore, all costs will be taxed to the Defendants, as this Court determines the Plaintiffs and City were the prevailing parties, notwithstanding a take nothing judgment.
The undersigned hears frequently of his many weak personality traits, but memory is not among them. Regardless of the OPS's claim to fame of having only nine employees to monitor all pipelines in the southwest United States, the undersigned will not forget OPS's commitment to enforce Longhorn's mitigation measures and monitor this Pipeline.
In accordance with the foregoing:
IT IS ORDERED that the Plaintiffs' Motion for Summary Judgment [# 295] is DENIED;
IT IS FURTHER ORDERED that the City of Austin's Motion for Summary Judgment [#299] is DENTED;
IT IS FURTHER ORDERED that Defendant Longhorn Pipeline Partners, L.P.'s Motion for Summary Judgment [#300] is GRANTED;
IT IS FURTHER ORDERED that the Federal Defendants' Motion for Summary Judgment [#297] is GRANTED;
IT IS FURTHER ORDERED that the Plaintiffs' Motion to Extend the Injunction [#201] and Request for Preliminary Injunction [#323] are DENTED;
IT IS FURTHER ORDERED that the City of Austin's Motion to Extend the Injunction [#203] and Request for Preliminary Injunctive Relief [#308] are DENIED;
IT IS FURTHER ORDERED that Longhorn's Motion to Strike declarations filed by the City of Austin [#311] is GRANTED in part and DENIED in part' as discussed in Part III above;
IT IS FURTHER ORDERED that Longhorn's Motion to Strike declarations filed by Plaintiffs [#312] is GRANTED in part and DENTED in part, as discussed in Part III above;
IT IS FURTHER ORDERED that the Federal Defendants' Motion to Strike Plaintiffs' declarations [#315] is GRANTED in part and DENIED in part' as discussed in Part III above;
IT IS FURTHER ORDERED that Longhorn's Motion to Strike documents filed by City of Austin [#320] is GRANTED in part and DENIED in part' as discussed in Part III above;
IT IS FURTHER ORDERED that Longhorn's Motion to Strike exhibits filed by Plaintiffs in support of their summary judgment response [#334] is DENIED;
IT IS FINALLY ORDERED that Plaintiffs' Motion to Strike Declarations of J.P. Sullivan, Jr. [#337] is GRANTED.