Red Lake Band of Chippewa Indians v. United States Army Corps of Engineers ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RED LAKE BAND OF CHIPPEWA
INDIANS, et al.,
Plaintiffs,
v.
UNITED STATES ARMY CORPS OF
ENGINEERS, Civil Action No. 20-3817 (CKK)
Defendant,
ENBRIDGE ENERGY, LIMITED
PARTNERSHIP,
Defendant-Intervenor.
MEMORANDUM OPINION
(February 7, 2021)
Plaintiffs Red Lake Band of Chippewa Indians, White Earth Band of Ojibwe, Honor the
Earth, and the Sierra Club (“Plaintiffs”) bring this action against Defendant United States Army
Corps of Engineers (the “Corps”), alleging violations of the National Environmental Policy Act
(“NEPA”), the Clean Water Act (“CWA”), the Rivers and Harbors Act (“RHA”), and the Corps’
permitting regulations. See Compl. ¶¶ 183–217, ECF No. 1. Specifically, Plaintiffs challenge the
Corps’ issuance of a permit to Intervenor-Defendant Enbridge Energy, Limited Partnership
(“Enbridge”), authorizing Enbridge to discharge dredged and fill material into waters of the
United States under Section 404 of the CWA and to cross waters protected by the RHA in its
construction of a replacement for the Line 3 oil pipeline, which transports oil from Canada to
Wisconsin, traversing North Dakota and Minnesota. See id. ¶¶ 3, 4, 7.
Presently before the Court is Plaintiffs’ [2] Motion for a Preliminary Injunction.
Plaintiffs argue that the Corps’ environmental assessment underlying its decision to authorize the
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construction of Line 3 falls short of the requirements of NEPA and the CWA. Specifically,
Plaintiffs challenge the adequacy of the Corps’ discussion of the effects of potential oil spills,
alternative construction routes, and alternative construction methods. Upon consideration of the
pleadings, 1 the relevant legal authorities, and the record before the Court, 2 the Court shall DENY
Plaintiffs’ [2] Motion for a Preliminary Injunction because Plaintiffs fail to demonstrate a
likelihood of success on the merits and that they will suffer irreparable harm.
I. BACKGROUND
A. Statutory and Regulatory Background
1. National Environmental Policy Act
NEPA requires the federal government to “identify and assess in advance the likely
environmental impact of its proposed actions, including its authorization or permitting of private
actions.” Sierra Club v. U.S. Army Corps of Engineers, 803 F.3d 31, 36 (D.C. Cir. 2015) (citing
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The Court’s consideration has focused on the following documents:
• Plaintiffs’ Motion for a Preliminary Injunction (“Pls.’ Mot.”), ECF No. 2;
• Intervenor-Defendant Enbridge’s Opposition to Plaintiffs’ Motion for a Preliminary
Injunction (“Enbridge’s Opp’n”), ECF No. 28;
• Defendant U.S. Army Corps of Engineers’ Opp’n to Plaintiffs’ Motion for a Preliminary
Injunction (“Corps’ Opp’n”), ECF No. 29;
• Plaintiffs’ Reply in Support of Motion for a Preliminary Injunction (“Pls.’ Reply”), ECF
No. 33;
• Plaintiffs’ Notice of Supplemental Authority (“Pls.’ Suppl. Auth.”), ECF No. 36;
• Defendant U.S. Army Corps of Engineers’ Response to Plaintiffs’ Notice of
Supplemental Authority (“Corps’ Resp. to Pls.’ Suppl. Auth.”), ECF No. 35;
• Defendant-Intervenor Enbridge’s Notice of Supplemental Authority (“Enbridge’s Suppl.
Auth.”), ECF No. 37; and
• Defendant-Intervenor Enbridge’s Response to Plaintiffs’ Notice of Supplemental
Authority (“Enbridge’s Resp. to Pls.’ Suppl. Auth.”), ECF No. 38.
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The record considered by the Court consists of the portions of the administrative record
stipulated by the parties. See Stipulation on Agreed Joint List of Pertinent Portions of the
Administrative Record, ECF No. 32. All citations to the administrative record shall use the
designation “Joint Exhibit,” referring to the parties’ joint submissions at ECF No. 32.
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Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 756–57 (2004)). NEPA “serves the twin purposes
of ensuring that (1) agency decisions include informed and careful consideration of
environmental impact, and (2) agencies inform the public of that impact and enable interested
persons to participate in deciding what projects agencies should approve and under what terms.”
Id. at 36–37 (citing Pub. Citizen, 541 U.S. at 768). NEPA accomplishes these purposes by
requiring agencies to take a “‘hard look’ at their proposed actions’ environmental consequences
in advance of deciding whether and how to proceed.” Id. at 37 (citing Robertson v. Methow
Valley Citizens Council, 490 U.S. 332, 350–51 (1989). NEPA “does not mandate particular
results,” but prohibits “uninformed—rather than unwise—agency action.” Robertson, 490 U.S. at350–51. “Agency actions with adverse environmental effects can thus be NEPA compliant where
the agency has considered those effects and determined that competing policy values outweigh
those costs.” Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 255 F. Supp. 3d 101,
113 (D.D.C. 2017) (internal citation marks and quotation marks omitted).
NEPA’s “major action-forcing provision . . . is the requirement that all agencies of the
Federal government prepare a detailed environmental analysis”—an Environmental Impact
Statement (“EIS”)—for “major Federal actions significantly affecting the quality of the human
environment.” Found. on Econ. Trends v. Heckler, 756 F.2d 143, 146 (D.C. Cir. 1985) (quoting
42 U.S.C. § 4332(C) (internal quotation marks omitted)). An EIS must assess the action’s
anticipated “direct and indirect environmental effects,” and consider “alternatives that might
lessen any adverse environmental impact.” Sierra Club, 803 F.3d at 37 (citing 42 U.S.C. §
4332(C); 40 C.F.R. § 1508.11)). “If any significant environmental impacts might result from the
proposed agency action, then an EIS must be prepared before the agency action is taken.” Grand
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Canyon Trust v. FAA, 290 F. 3d 339, 340 (D.C. Cir. 2002) (quoting Sierra Club v. Peterson, 717
F.2d 1409, 1415 (D.C. Cir. 1983)).
If it is unclear whether an action will “significantly affect[ ] the quality of the human
environment,” the federal agency “may first prepare an Environmental Assessment (“EA”).”
Theodore Roosevelt Conservation P’ship v. Salazar, 616 F.3d 497, 503 (D.C. Cir. 2010)
(emphasis added) (internal citations and quotation marks omitted). An EA is “essentially, a
preliminary consideration of potential environmental effects in a concise public document,
designed to provide sufficient evidence and analysis for determining whether an EIS is needed.”
Sierra Club, 803 F.3d at 37 (internal citations and quotation marks omitted). The EA must
discuss the “purpose and need for the proposed action, alternatives . . . and the environmental
impacts of the proposed action and alternatives.” 40 C.F.R. § 1501.5(c)(2).
To determine whether a federal action will “significantly” affect the quality of the
environment (requiring an EIS), the agency must consider both direct and indirect effects of its
decision. 40 C.F.R. §§ 1501.3; 1508.1(g). Indirect effects include those “caused by the actions
and are later in time or farther removed in distance, but are still reasonably foreseeable.” Id. §
1508.1(g). An effect is “reasonably foreseeable” if a “person of ordinary prudence would take it
into account in reaching a decision.” Standing Rock Sioux Tribe v. U.S. Army Corps of
Engineers, --- F.3d ---, 2021 WL 244862, at *10 (D.C. Cir. Jan. 26, 2021) (quoting City of
Shoreacres v. Waterworth, 420 F.3d 440, 453 (5th Cir. 2005)). Effects “do not include those
effects that the agency has no ability to prevent due to its limited statutory authority or would
occur regardless of the proposed action.” 40 C.F.R. § 1508.1(g)(2).
If the agency determines based on its EA that an EIS is not required, the agency must
issue a “finding of no significant impact (“FONSI”), which “briefly presents the reasons why the
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proposed agency action will not have a significant impact on the human environment.” Pub.
Citizen, 541 U.S. at 757–58 (internal citations omitted). “Each form of NEPA analysis—
EA/FONSI or EIS—requires public notice and comment, . . . and each is subject to judicial
review.” Sierra Club, 803 F.3d at 37–38 (citing Pub. Citizen, 541 U.S. at 763–64; Grand Canyon
Trust, 290 F.3d at 340–42).
2. Clean Water Act
The CWA seeks to “restore and maintain the chemical, physical, and biological integrity
of the Nation’s waters” and to “increase the quality and quantity of the Nation’s wetlands.” 33
U.S.C. §§ 1251(a), 2317(a). The CWA, therefore, prohibits the discharge of dredged or fill
materials into navigable waters of the United States absent authorization by the Corps pursuant
to Section 404, 33 U.S.C. § 1344. Section 404 of the CWA assigns the Corps jurisdiction to issue
permits authorizing the discharge of fill material into “navigable waters.” 33 U.S.C. §§
1342(a)(1), (4), 1344(a); see Sierra Club, 803 F.3d at 38. The Corps’ permitting authority also
extends to “wetlands adjacent to navigable waters.” Nat’l Ass’n of Mfrs. v. Dep’t of Defense, 138
S. Ct. 617, 625 (2018) (citing United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 132
(1985)); see also 33 C.F.R. § 328.3(a)(4) (“For the purposes of the Clean Water Act . . . the term
‘waters of the United States’ means . . . adjacent wetlands.”).
Before the Corps issues a Section 404 permit, it must determine that there is “no
practicable alternative” to the proposed activity “which would have less adverse impact on the
aquatic ecosystem.” 40 C.F.R. § 230.10(a). A practicable alternative is one which is “available
and capable of being done after taking into consideration cost, existing technology, and logistics
in light of overall project purposes.” Id. § 230.10(a)(2). If there is any practicable alternative that
would have a lesser impact on the aquatic ecosystem, the Corps must deny the application
permit. Id. § 230.10(a). The Corps must also evaluate the “probable impacts” of the proposed
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activity and will grant the permit “unless the district engineer determines that [the activity]
would be contrary to the public interest.” 33 C.F.R. § 320.4(a)(1).
3. Rivers and Harbors Act
Section 10 of the Rivers and Harbors Act prohibits structures and activities that would
obstruct navigable waters unless “the work has been recommended by the Chief of Engineers
and authorized by the Secretary of the Army[.]” 33 U.S.C. § 403. Section 14 of the RHA—
commonly referred to as “Section 408”—provides that actions impairing “work[s] built by the
United States” require authorization by the Corps. 33 U.S.C. § 408; 33 C.F.R. § 320.2(e).
B. Factual Background
Intervenor-Defendant Enbridge operates “Line 3” a 34-inch diameter pipeline, running
1,097 miles from Edmonton, Alberta to Superior, Wisconsin and traversing portions of North
Dakota and Minnesota (“Existing Line 3”). Compl. ¶ 2; Joint Ex. 2, Dep’t of the Army
Environmental Assessment and Statement of Findings (“EA-SOF”) at 4; Joint Ex. 32, Decl. of
Barry Simonson (“Simonson Decl.”) ¶ 4. Enbridge and the Corps indicate that Existing Line 3,
which was originally constructed in the 1960s, now suffers from corrosion and integrity issues,
including a “large number of identified pipe defects and anomalies.” Joint Ex. 2, EA-SOF at 16;
Joint Ex. 32, Simonson Decl. ¶¶ 7, 8, 16. Enbridge represents that “operational and integrity-
based safety concerns” including “corrosion and stress corrosion cracking on the pipeline” have
required Enbridge to reduce the capacity of Existing Line 3 from its historical average of
760,000 barrels/day to 390,000 barrels/day. Joint Ex. 32, Simonson Decl. ¶ 7; see Joint Ex. 2,
EA-SOF at 8. Enbridge explains that maintaining Existing Line 3 requires “integrity digs,”
which are intrusive to local homeowners and the environment. Joint Ex. 32, Simonson Decl. ¶¶
7, 70, 71; see Joint Ex. 2, EA-SOF at 16. Enbridge estimates that it would need to undertake
approximately 6,250 integrity digs over the next 15 years to maintain Existing Line 3, which
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would be “nearly equal” to the cost of replacing the pipeline, and would result in “year-over-year
impacts” to landowners and the environment. Joint Ex. 32, Simonson Decl. ¶ 7; see Joint Ex. 2,
EA-SOF at 16.
In 2017, Enbridge entered a Consent Decree with the U.S. government, obligating
Enbridge to “seek all approvals necessary for the replacement of [Existing] Line 3” and upon
receipt of those approvals, to “complete the replacement of [Existing Line 3] and take [Existing]
Line 3 out of service . . . as expeditiously as practicable.” See Consent Decree, ECF No. 14,
United States v. Enbridge Energy Ltd. P’ship, No. 16-cv-914 (W.D. Mich. May 23, 2017)
(“Consent Decree”). 3 To comply with its obligation to decommission Existing Line 3, Enbridge
plans to construct a new pipeline. In so doing, Enbridge will replace the existing 34-inch-
diameter Line 3 pipeline with a 36-inch-diameter pipeline using “modern pipeline design,
manufacturing, materials, coating, and installation techniques.” Joint Ex. 2, EA-SOF at 21; Joint
Ex. 32, Simonson Decl. ¶¶ 11, 13. A wider and stronger pipe, according to Enbridge, will allow
oil to move more safely and efficiently. Joint Ex. 32, Simonson Decl. ¶¶ 11, 13.
Whereas Existing Line 3 currently transports light crude oil, the Corps notes that
Replacement Line 3 will allow Enbridge to carry “heavy, light, and mixed service.” Joint Ex. 2,
EA-SOF at 21. Enbridge represents that Replacement Line 3 is “generally expected” to
“transport the same products as the existing Line 3 throughout its operating history.” Joint Ex.
32, Simonson Decl. ¶ 10. Plaintiffs suggest that the new pipeline’s service will include “heavy
high-sulfur diluted bitumen” or “dilbit.” Pls.’ Mot. at 8. Plaintiffs contend that dilbit’s
“capacity . . . to precipitate out in water and its resistance to biodegradation, in the event of a
3
The Consent Decree arises from a Complaint against Enbridge in 2010 “as the result of
unlawful discharges of oil from two Lakehead System pipelines.” See Consent Decree at 1.
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release to a waterbody” create “more difficult cleanup scenarios” than for other types of crude
oil. Pls.’ Mot. at 8; Joint Ex. 7, Pls.’ Comments on Application No. 2014-01071-HJ at 16–17
(citing KeystoneXL FSEIS § 3.13-10 (2014)). Unlike “conventional crude oil,” Plaintiffs argue,
dilbit can “become suspended in the water column or mix into sediment in the riverbed or
shoreline and thus be incredibly difficult to clean up.” Joint Ex. 7, Pls.’ Comments on
Application No. 2014-01071-HJ at 17 (quoting KeystoneXL FSEIS § 4.13-88). The parties do
not dispute that Replacement Line 3 would also transport a greater capacity of oil than does
Existing Line 3 currently. Pls.’ Mot. at 8 (citing Joint Ex. 2, EA-SOF at 16–17, 21); Joint Ex. 32,
Simonson Decl. ¶¶ 7, 10. Enbridge notes that this increased capacity would simply restore earlier
historical averages of Existing Line 3. See Joint Ex. 32, Simonson Decl. ¶ 10.
Enbridge has already completed segments of the new Line 3 pipeline in Wisconsin and
North Dakota. Joint Ex. 32, Simonson Decl. ¶ 14. At issue in this lawsuit is the final phase of
replacing Existing Line 3: the replacement of approximately 282 miles of existing pipeline in
Minnesota with 340 miles of new pipeline and associated facilities (the “Project”).
Approximately 90% of the Project route is “co-located with other Enbridge pipelines, third-party
pipelines, roads, railroads, or highways.” Joint Ex. 2, EA-SOF at 8. But the remainder of the
route would be constructed in a new corridor, illustrated in green in Figure 1 below. See id.
Unlike the existing route, the new corridor will avoid the Chippewa National Forest and the
Leech Lake and Fond du Lac Bands of Chippewa Indians’ Reservations. Id. at 22, 24.
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contested case proceedings, which were held in the fall of 2017 and included sixteen public
hearings in eight cities and two weeks of evidentiary hearings. Id. at 3. Plaintiffs in this action
participated in the contested case proceedings. Id. at 4. In April 2018, the state ALJ issued a
report recommending a route and associated proposed conditions. Id.
While the MPUC oversaw route proposals, the Minnesota Department of Commerce,
Energy Environmental Review and Analysis (“DOC-EERA”) developed an Environmental
Impact Statement (“State EIS”) pursuant to Minnesota’s Environmental Policy Act, Minn. Stat
§ 116D.01-.11, which mandates preparation of an EIS for Certificate of Need and Route Permit
proceedings, see In re Enbridge Energy, Ltd. P’ship, 930 N.W.2d 12, 20 (Minn. Ct. App. 2019).
DOC-EERA issued its first draft of the State EIS on May 15, 2017 for public comment. Joint Ex.
15, Order Finding EIS Adequate at 2. The agency held 22 public information meetings and
“considered thirty possible route combinations.” Simonson Decl. ¶ 25; see Joint Ex. 14, Order
Granting Certificate of Need at 2. The State EIS includes sections examining alternatives to the
proposed project, see Joint Ex. 11, State EIS Chapter 4 (“Alternatives to the Proposed Project”),
and analyzing issues related to the accidental release of crude oil, see Joint Ex. 17, State EIS
Chapter 10 (“Accidental Crude Oil Releases”).
DOC-EERA finalized its EIS on February 12, 2018—which was “found adequate” by the
MPUC on May 1, 2018. See Joint Ex. 15, Order Finding EIS Adequate. MPUC held oral
argument regarding the Project Route, and then issued its approved route in October 2018. See
Joint Ex. 18, Transcript of MPUC Deliberations; Joint Ex. 2, EA-SOF at 10. According to
Enbridge, the route approved by the MPUC “captured numerous modifications to Enbridge’s
originally proposed route to minimize potential effects of the project on cultural and
environmental resources.” Joint Ex. 32, Simonson Decl. ¶ 26.
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Plaintiffs challenged the State EIS and route determination in the Minnesota Court of
Appeals, contesting the adequacy of the State EIS under state law. See In re Enbridge Energy,
Limited Partnership, 930 N.W.2d 12 (Minn. Ct. App. 2019). The court concluded that the
MPUC correctly found that the State EIS was adequate—except that the oil spill model upon
which the State EIS relied failed to address the impact of an oil spill on the Lake Superior
watershed. Id. at 28, 36. The court, therefore, remanded to the MPUC for further proceedings. Id.
at 36. Minnesota DOC-EERA prepared a revised State EIS in accordance with the court’s order
and issued its revised analysis for public notice and comment. See Joint Ex. 16, Order Finding
EIS Adequate, Granting Certificate of Need as Modified, and Granting Routing Permit as
Modified at 3–4. The MPUC issued an Order on May 1, 2020 finding the revised State EIS
adequate, and approving the Certificate of Need and Route Permit for the Project. See id.
Plaintiffs again challenged the MPUC’s Order and filed for a stay on November 25, 2020. The
MPUC denied the motion in December 2020, see Joint Ex. 37, Order Denying Motion for Stay
Pending Appeal. Plaintiffs then sought a stay pending appeal from the Minnesota Court of
Appeals, which the court denied on February 2, 2021. See Enbridge’s Suppl. Auth., Ex. 1.
Plaintiffs’ appeal before the Minnesota Court of Appeals is pending. See In the Matter of the
Application of Enbridge Energy, Nos. A20-1071, A20-1072, A20-1074, A20-1075, A20-1077
(Minn. Ct. App.).
Because the Project will cross 227 waterways, Enbridge was also required to obtain a
permit from the Corps to authorize the discharge of dredged or fill materials into “waters of the
United States” under Section 404 of the CWA. Joint Ex. 2, EA-SOF at 28. The Project also
crosses the Corps’ Lost River Flood Control Project, which required Enbridge to obtain an
authorization from the Corps under Section 408 of the RHA. Id. at 109. Enbridge first applied for
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an individual CWA permit in 2015 and submitted a revised application on September 21, 2018.
Id. at 9–10. On December 20, 2018, the Corps issued a Public Notice for the Section 404 permit
and Section 408 authorization, which was followed by a 60-day period for comments. Id. at 11.
After this first public notice and comment period, the Corps requested additional information
from Enbridge in October 2019 regarding concerns about wetland impact, construction methods,
impact minimization, post-construction monitoring, and compensatory mitigation. Id. After
Enbridge responded in December 2019, the Corps issued another public notice seeking comment
on these revisions on February 4, 2020. Id. at 11–12.
The Corps prepared an Environmental Assessment and Statement of Findings. See Joint
Ex. 2, EA-SOF. Based on its EA, the Corps concluded that issuing the Section 404 permit would
not “have significant impacts on the quality of the human environment.” Id. at 128. The Corps,
therefore, did not produce an EIS for the Project. Appended to the Corps’ EA-SOF is an
additional EA pursuant Section 408 of the RHA (“Section 408 EA”)—regarding the
authorization for the Project to cross the Lost River Flood Control Project. See Joint Ex. 2,
EA-SOF, App’x E; see also Joint Ex. 2, EA-SOF at 109.
On November 23, 2020, the Corps granted Enbridge a CWA Section 404 permit to
discharge dredged and fill materials into water of the United States. See Joint Ex. 1, Permit. The
Corps also authorized the alteration of the Lost River Flood Control Project under Section 408 of
the RHA. Id. Construction on the Project began around December 1, 2020 at several sites and is
expected to take seven to nine months. Joint Ex. 32, Simonson Decl. ¶¶ 56–57. According to
Enbridge, certain portions of the Project are scheduled to be completed in cold conditions to
reduce impact to the environment. Id. ¶ 61. As of the date of this decision, construction crews
have begun clearing trees and trenching. Id. ¶ 64. Plaintiffs contend that these construction
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activities have already caused “irreversible soil compaction and soil disruption.” Joint Ex. 29,
Decl. of Dr. Laura Triplett, (“Triplett Decl.”) ¶ 11; see also Joint Ex. 31, Suppl. Decl. of Dr.
Laura Triplett (“Suppl. Triplett Decl.”) ¶¶ 3–5 (detailing observations of “extensive tree
clearing” and removal of vegetation by construction crews).
Plaintiffs also argue that the Project will cause significant, irreversible environmental
harm and will “alter local Tribes’ traditional practices,” as they rely on the affected waterways
and wetlands for cultural and spiritual practices, as well as hunting, gathering, and fishing. Pls.’
Mot. at 10–11. Plaintiffs cite specifically the Corps’ finding that the Project will result in a
permanent loss of 9.97 acres of wetlands and the conversion of 81.36 acres of scrub-shrub
wetland and 148.85 acres of forested wetland into “an emergent type wetland.” Id. at 10 (citing
Joint Ex. 2, EA-SOF at 21, 36). Plaintiffs claim that these alterations will result in the “complete
loss of the wetlands’ original vegetation, the impaired or eradicated ability of the wetlands to
mitigate flood risk, an increased risk of oil spills, and ongoing harm to many wildlife species.”
Id. (citing Joint Ex. 29, Triplett Decl. ¶¶ 7–10).
C. Procedural Background
Plaintiffs filed their Complaint and Motion for a Preliminary Injunction in this action on
December 24, 2020. See Compl.; Pls.’ Mot. Plaintiffs seek to “enjoin [the Corps] to withdraw
the permit issued on November 23, 2020 authorizing Enbridge Energy to discharge dredged and
fill material into 1050.71 acres of waters of the United States for construction activities
associated with the Line 3 project.” Pls.’ Mot. at 1. As discussed more fully infra Part III,
Plaintiffs argue that the Corps’ EA is deficient under NEPA and the CWA because the Corps
failed to consider “the risk of and potential harms associated with oil spills” and “truncated its
review of potential alternatives to the Project.” Id. at 14. Plaintiffs contend that these
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deficiencies undermine the Corps’ conclusion that there would be no “significant” impact to the
environment—the finding underlying the Corps’ decision not to prepare an EIS for the Project.
See id. Plaintiffs request that the “Corps’ permit for the Project” be “enjoined until [the Corps]
completes the legally required review of the pipelines.” Id. at 1.
Enbridge moved to intervene as a defendant on January 5, 2021, which neither the Corps
nor Plaintiffs opposed. See Enbridge’s Mot. to Intervene, ECF No. 19; Corps’ Resp., ECF No.
20; Pls.’ Resp., ECF No. 22. The Court granted Enbridge’s motion to intervene as of right under
Federal Rule of Civil Procedure 24(a). See Order, ECF No. 23; Mem. Op., ECF No. 24.
The Court held teleconferences in this matter on December 30, 2020 and January 6, 2021
to discuss with the parties their proposed schedule for briefing Plaintiffs’ motion and submitting
the administrative record. 5 At the January 6, 2021 hearing, the Corps indicated that the breadth
of the administrative record would prevent it from compiling the record in its entirety within the
expedited timeline sought by Plaintiffs. See Jan. 6, 2021 Hr’g Tr. 10:15–25. The Court brought
to the parties’ attention the D.C. Circuit’s decision in American Bioscience, Inc. v. Thompson,
243 F.3d 579 (D.C. Cir. 2001), in which the court held that the parties should have been required
to file the administrative record before the district court could assess plaintiffs’ likelihood of
success on the merits of their claims. Id. at 582; see Jan. 6, 2021 Hr’g Tr. 4:15–6:5. Unlike
American Bioscience, the claims at issue in Plaintiffs’ motion pertain to the sufficiency of the
Corps’ EA (which the parties have filed, see Joint Ex. 2, EA-SOF) and the Corps’ decision not
produce an EIS. Accordingly, the parties agreed to submit to the Court a stipulated list and
copies of documents pertinent to the Corps’ EA. See Jan. 6, 2021 Hr’g Tr. 6:9-25. The parties
5
Because the Court had not yet granted Enbridge’s motion to intervene at the time of these
teleconferences, Enbridge did not participate in either hearing.
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filed the stipulated list and associated documents on January 20, 2021. See ECF No. 32.
Although the parties have separately filed exhibits with their legal memoranda, for the sake of
clarity, the Court shall refer to the “Joint Exhibit” number corresponding to the parties’
stipulated list and exhibits filed at ECF No. 32.
Plaintiffs requested an expedited consideration of their preliminary injunction. See Pls.’
Mot. In light of the parties’ joint proposed briefing schedule and efforts to compile the pertinent
portions of the administrative record, the parties agreed and the Court finds that the parties will
not be prejudiced by the Court’s decision on the preliminary injunction outside the 21 days set
forth in Local Civil Rule 65.1(d). See Jan. 6, 2021 Hr’g Tr. 3:18–4:14. In addition, the Court
finds that a hearing will not aid in the Court’s disposition of Plaintiffs’ motion.
II. LEGAL STANDARD
A. Preliminary Injunction
Preliminary injunctive relief is “an extraordinary remedy that may only be awarded upon
a clear showing that the plaintiff is entitled to such relief.” Sherley v. Sebelius, 644 F.3d 388, 392
(D.C. Cir. 2011) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)); see also
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (“[A] preliminary injunction is an
extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear
showing, carries the burden of persuasion.” (internal quotation marks omitted)).
Plaintiffs seeking preliminary injunctive relief “must establish (1) that [they are] likely to
succeed on the merits, (2) that [they are] likely to suffer irreparable harm in the absence of
preliminary relief, [3] that the balance of equities tips in [their] favor, and [4] that an injunction
is in the public interest.” Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014) (quoting
Sherley, 644 F.3d at 392) (internal quotation marks omitted). When seeking such relief, “the
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movant has the burden to show that all four factors, taken together, weigh in favor of the
injunction.” Abdullah v. Obama, 753 F.3d 193, 197 (D.C. Cir. 2014) (quoting Davis v. Pension
Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009)) (internal quotation marks omitted).
In this jurisdiction, “[t]he four factors have typically been evaluated on a sliding scale”: if
the “movant makes an unusually strong showing on one of the factors, then it does not
necessarily have to make as strong a showing on another factor.” Id. at 1291–92 (internal
quotation marks omitted). It is unclear whether the sliding-scale approach to assessing the four
preliminary injunction factors survives the Supreme Court's decision in Winter. See Save Jobs
USA v. U.S. Dep't of Homeland Sec., 105 F. Supp. 3d 108, 112 (D.D.C. 2015). Several judges on
the D.C. Circuit have “read Winter at least to suggest if not to hold ‘that a likelihood of success
is an independent, free-standing requirement for a preliminary injunction.’” Sherley, 644 F.3d at
393 (internal citation omitted). However, the D.C. Circuit has yet to hold definitively that Winter
has displaced the sliding-scale analysis. See id.; see also Save Jobs USA, 105 F. Supp. 3d at 112.
In light of this ambiguity, the Court shall consider each of the preliminary injunction factors and
shall only evaluate the proper weight to accord the likelihood of success on the merits if the
Court finds that its relative weight would affect the outcome.
B. Administrative Procedure Act
Plaintiffs bring their NEPA and CWA claims under the general review provision of the
APA. Compl. ¶¶ 183–217; see Karst Envtl. Educ. & Prot., Inc. v. Envtl. Prot. Agency, 475 F.3d
1291, 1295 (D.C. Cir. 2007) (“[B]ecause NEPA creates no private right of action, challenges to
agency compliance with the statute must be brought pursuant to the Administrative Procedure
Act[.]”). Under the APA, the Court may set aside an agency action that is “arbitrary and
capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C.
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§ 706(2). An agency action is arbitrary and capricious if, for example, the agency “entirely failed
to consider an important aspect of the problem, offered an explanation for its decision that runs
counter to the evidence before the agency, or is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n of the U.S.,
Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (citations and internal quotations
omitted).
This standard of review is deferential to the agency, and the Court is not entitled to
substitute its judgment for that of the agency. Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402, 416 (1971). Nevertheless, “courts are not obliged to stand aside and rubber-stamp
their affirmance of administrative decisions that they deem inconsistent with a statutory mandate
or that frustrate the congressional policy underlying a statute.” Nat’l Labor Relations Bd. v.
Brown, 380 U.S. 278, 291 (1965).
III. DISCUSSION
A. Likelihood of Success on the Merits
The Court must first consider whether Plaintiffs have demonstrated a substantial
likelihood of succeeding on the merits of their claims. “[T]o determine whether plaintiffs have
demonstrated a likelihood of success . . . it will ordinarily be enough that the plaintiff[s] ha[ve]
raised questions going to the merits so serious, substantial, difficult and doubtful, as to make
them a fair ground for litigation and thus for more deliberative investigation.” Monument Realty
LLC v. Wash. Metro. Area Transit Auth., 540 F. Supp. 2d 66, 76 (D.D.C. 2008) (quotation
omitted). Plaintiffs’ likelihood of success on the merits, of course, is tied to the specific claims
asserted; accordingly, the Court will focus directly on Plaintiffs’ NEPA and CWA claims under
the APA’s standard of review.
17
Plaintiffs seek to enjoin the Corps’ Section 404 Permit, contending that the Corps failed
to assess adequately the risk of oil spills and alternative routes and construction methods under
NEPA and the CWA. These failures, Plaintiffs argue, undermine the Corps’ finding of no
significant environmental impact underlying the Corps’ decision not to produce an EIS. For the
reasons set forth below, the Court concludes that Plaintiffs have not demonstrated a likelihood of
success on the merits of their claims that the Corps failed to comply with NEPA or the CWA in
concluding that an EIS was not warranted.
1. Challenges to the Corps’ Consideration of Oil Spills
Plaintiffs first argue that they are likely to prevail on the merits of their claim that the
Corps violated NEPA and the CWA by failing to analyze the “risks of and potential harms
associated with oil spills from the Project.” Pls.’ Mot. at 15. Plaintiffs contend that the Corps’
EA discusses only construction impacts of its permitting decision but fails to analyze the risks
and harms of an oil spill. By failing to address this issue, Plaintiffs argue, the Corps’ finding of
no “significant” environmental impact underlying its decision not to conduct an EIS is flawed.
Id. at 15–17. Plaintiffs also argue that this omission undermines the Corps’ findings under the
CWA that there is no practicable alternative to the Project with less impact on the aquatic
ecosystem. Id. at 17–18.
In response, the Corps and Enbridge argue that the Corps did take a “hard look” at the
issue of oil spills in its Section 404 and Section 408 EAs and considered the issue in its review of
materials from state regulatory proceedings, including the State EIS. 6 See Corps’ Opp’n at
6
Enbridge argues that the Corps was not required at all to consider the environmental
consequences of potential oil spills in its NEPA analysis considering a Section 404 permit
because “[w]hether spills occur depend entirely on the operation of the pipeline, which is well
beyond the Corps’ regulatory jurisdiction.” Enbridge’s Opp’n at 25. The Corps appears to have
taken this position in its responses to public comments. See, e.g., Joint Ex. 3, First Public Notice
18
16–19; Enbridge’s Opp’n at 22. Both the Corps and Enbridge contend that the Corps’ analysis of
potential oil spills in the EAs satisfies its obligations under NEPA and the CWA.
For the reasons set forth below, the Court finds that the Corps adequately considered the
effects of a potential oil spill to discharge its duties under NEPA and the CWA. Accordingly,
Plaintiffs have not demonstrated a likelihood of success on the merits of their claims that the
Corps’ oil spill analysis was deficient under either statute.
a. NEPA
Plaintiffs first challenge the sufficiency of the Corps’ consideration under NEPA of the
risks and effects of a potential oil spill. Plaintiffs argue that the Corps’ “refusal to examine” the
“risk of and potential harms associated with oil spills” undermines its conclusion that its action
would have no “significant” environmental impacts requiring the Corps to complete an EIS.
Pls.’ Mot. at 14. Enbridge and the Corps respond that the Corps took a “hard look” at the issue of
potential oil spills and, based on the Corps’ consideration of the issue, its finding of no
significant environmental impact was reasonable—and so, therefore, was its finding that an EIS
was not required. See Corps’ Opp’n at 16–19; Enbridge’s Opp’n at 22–25.
The Court first notes that its “role in reviewing [the Corps’] decision not to prepare an
EIS is a limited one, designed primarily to ensure that no arguably significant consequences have
been ignored.” Nat’l Parks Conserv. Ass’n v. Semonite, 916 F.3d 1075, 1082 (D.C. Cir. 2019)
Comments and Responses at 2 (“Generally, oil pipeline projects are not ‘major federal actions’
for [the Corps] because [the Corps] has limited jurisdiction over activities associated with
pipeline construction.”); id. at 3 (noting that the Corps’ jurisdiction was “limited to the
construction-related impacts to aquatic resources” and referring to the State EIS for consideration
of the “environmental consequences of oil spills of varying types.”). Because the Corps’ position
in its briefing appears to be that it did consider the risk of oil spills, see Corps’ Opp’n at 12, the
Court shall not decide whether the Corps must categorically consider effects of oil spills in its
NEPA review of a Section 404 application for construction of an oil pipeline.
19
(quoting Myersville Citizens for a Rural Comm., Inc. v. FERC, 783 F.3d 1301, 1322 (D.C. Cir.
2015) (internal quotation marks omitted)). “An agency decision that an EIS is not required may
be overturned ‘only if it was arbitrary, capricious or an abuse of discretion.’” Grand Canyon
Trust, 290 F.3d at 340 (quoting Sierra Club v. U.S. Dep’t of Transp., 753 F.2d 120, 126 (D.C.
Cir. 1985). Judicial review of an agency’s finding of “no significant impact” is not, however,
“merely perfunctory as the court must ensure that the agency took a ‘hard look’ at the
environmental consequences of its decision.” Peterson, 717 F.2d at 1413 (citing Kleppe v. Sierra
Club, 427 U.S. 390, 410 n.21 (1976)). Courts reviewing an agency’s finding of “no significant
impact” must consider whether the agency:
(1) has accurately identified the relevant environmental concern, (2)
has taken a hard look at the problem in preparing its [FONSI or
Environmental Assessment], (3) is able to make a convincing case
for its finding of no significant impact, and (4) has shown that even
if there is an impact of true significance, an EIS is unnecessary
because changes or safeguards in the project sufficiently reduce the
impact to a minimum.
Sierra Club v. Van Antwerp, 661 F.3d 1147, 1154 (D.C. Cir. 2011) (quoting TOMAC v. Norton,
433 F.3d 852, 861 (D.C. Cir. 2006)). “In so doing, courts in this circuit apply a rule of reason to
an agency’s NEPA analysis and decline to flyspeck the agency’s findings in search of any
deficiency no matter how minor.” Standing Rock, 255 F. Supp. 3d at 122 (internal citation and
quotation marks omitted). The Court finds that Plaintiffs are not likely to succeed in
demonstrating that the Corps failed to take a “hard look” at the issue, or that reaching its
conclusion of “no significant impact” was arbitrary and capricious.
Although the Corps’ Section 404 EA addresses the risk of oil spills, it does so only to
compare the risk of oil spills associated with potential alternatives to the construction of a new
pipeline. See Joint Ex. 2, EA-SOF at 19 (“Trains . . . are more likely to result in small to medium
20
spills when compared to spills from pipelines, typically resulting from human error. While
pipelines generally have fewer but larger spills, the number of incidents from train spills is
higher which results in a higher percentage of the overall volume being spilled when compared
to pipelines); id. at 20 (same conclusion for trucks); id. at 23 (“Continued operation of the
existing Line 3 poses a far greater risk of an accidental release and resulting environmental
damage than the applicant’s proposed alternative.”); id. at 25, 26 (finding that an alternative
combining use of Existing Line 3 with rail or truck transport would “result in a higher number of
incidents involving oil spills”). The Corps’ analysis in the Section 404 EA does not specifically
discuss the risks or impacts of this Project.
The Section 408 EA (Appendix E of the Corps’ EA-SOF) does, however, consider the
risks and effects of a potential oil spill related to the Project. First, the Section 408 EA cites a
study related to “potential pinhole” leaks and notes that “overall, the study concluded that
pipelines monitored with supervisory control and data acquisition systems, in conjunction with
computational pipeline monitoring or model-based leak detection systems, greatly lower the
potential for long undetected releases.” Joint Ex. 2, EA-SOF, App’x E at 10. Next, the Section
408 EA reviews the “modeling of hypothetical worst-case discharge spill scenarios . . conducted
to provide insight into the behavior of different types of oils in the environments that are typical
of Minnesota to help in the consideration of potential contingency planning requirements and to
evaluate the range of potential impacts of an accidental release” conducted for the State EIS. Id.
The Section 408 EA notes that the Corps examined the pertinent chapter of the State EIS and
“Assessment of Accidental Releases: Technical Report.” Id. at 10, 12. The Section 408 EA then
discusses the effects of an accidental release of oil on the aquatic environment—examining
impacts on fish, amphibians, birds and mammals, and wild rice—as well as the human
21
environment, and considers potential challenges in responding to spills. Id. at 13. It further
examines spill prevention, detection, and response measures, including with respect to “remote
locations, aquatic environments, and winter conditions.” Id. at 15. Based on this review, the
Corps concluded that “the spill prevention and leak detection measures described in the Section
408 EA ‘will reduce the risk of a spill resulting in environmental and human impacts.’” Corps’
Opp’n at 16 (quoting Joint Ex. 2, EA-SOF, App’x E at 17). In sum, the Section 408 EA
addresses the effects of a potential oil release, and finds that preventative and mitigative
measures would reduce the risk of a spill leading to significant harm. The Court finds that this
review sufficiently demonstrates that the Corps accurately identified and took a “hard look” at
the risk and effects of oil spills and considered those risks against the measures in place to
prevent, detect, and respond to spills. Although Plaintiffs may disagree with the Corps’ ultimate
conclusion, “their disagreement does not mean the Corps failed to consider the issue altogether.”
Citizens for a Rural Cmty. v. F.E.R.C., 783 F.3d 1301, 1325 (D.C. Cir. 2015) (internal citations
and quotation marks omitted).
In their Reply, Plaintiffs acknowledge that the Section 408 EA discusses oil spills, but
argue that the Corps’ “narrow [and] conclusory” findings in that document “do not adequately
analyze the effects of oil spills.” Pls.’ Reply at 2-4. 7 Plaintiffs offer three principal challenges to
Defendants’ reliance on the Section 408 EA, which the Court shall address in turn.
First, Plaintiffs argue that the discussion of oil spills in the Section 408 EA is insufficient
because the Section 408 authorization pertains only to a single site: the Lost River Flood Control
Project. Pls.’ Reply at 6–7. At least one other court has confronted the question of whether an oil
7
Plaintiffs state that they did not receive a copy of the Section 408 EA until January 11, 2021
and therefore did not address it in their opening brief. See Pls.’ Reply at 6 n.6.
22
spill analysis contained in a Section 408 EA analyzing a “limited portion” of a project can
support a broader Section 404 permit. See Atchafalaya Basinkeeper v. U.S. Army Corps of
Engineers, 310 F. Supp. 3d 707, 723 (M.D. La.), rev’d on other grounds, 894 F.3d 692 (5th Cir.
2018). In that case, the court concluded that because the spill model upon which the Corps relied
in its Section 408 EA “covered the entire pipeline” and not just the particular crossing requiring a
Section 408 authorization, it was not improper for the Corps to rely on the Section 408 EA in
reaching its no “significant” impact determination in its Section 404 EA. Id. at 723–24. Here,
the worst-case discharge model upon which the Corps relied in its Section 408 EA assessed
“eight representative sites across northern and central Minnesota” and “was carefully and
deliberately selected to address a broad spectrum of terrain, land-cover types, watercourses,
waterbodies, wetlands, associated freshwater and riparian habitat types, vegetation,
environmentally-sensitive areas, and human land uses . . . to consider the range of consequences
that may be possible should there by an accidental release of crude oil along the proposed
route[.]” Joint Ex. 2, EA-SOF, App’x E at 10. Similarly, the mitigative measures discussed in the
Section 408 EA address areas spanning the pipeline, including “rural, sparsely populated areas.”
Id. at 16. The Corps’ consideration of the spill model and preventive measures, therefore, shows
that its review was not limited to the single site at issue in the Section 408 EA. See Atchafalaya
Basinkeeper, 310 F. Supp. at 723 (“While the Section 408 EA applied the spill model results to
the specific federal easements and projects to determine the risks and impacts at those locations,
the [underlying] model itself clearly covered the entire pipeline.”).
Plaintiffs next argue that the Corps’ analysis of oil spills relies “uncritically” on the State
EIS, and so does not satisfy the Corps’ duty to complete a “critical, independent verification” of
a state’s environmental analysis. Pls.’ Reply at 4. Although Plaintiffs note that NEPA regulations
23
permit cooperation between state and federal agencies, they argue that the record lacks evidence
of “formal cooperation” such as “joint planning, joint studies, joint public hearings, or a joint
EA” with respect to any oil spill modeling or analysis. Id. at 5; see 40 C.F.R. § 1506.2(a)
(“Federal agencies are authorized to cooperate with State, Tribal, and local agencies that are
responsible for preparing environmental documents, including those prepared pursuant to section
102(2)(D) of NEPA.”). The Corps contends that it “did not adopt the State EIS, nor did it attempt
to delegate to the state or abdicate its obligation to conduct an independent review. The Corps
did, however, utilize the information from the state proceedings so as not to duplicate additional
review requirements.” Corps’ Opp’n at 12. The Corps argues that it was proper for them to rely
on environmental documents prepared by other agencies, as well as submissions by Enbridge.
See id. at 13 n.8.
Upon review of relevant caselaw, the Court agrees that the Corps was not required to
duplicate studies or analyses already completed by the state (or even the permit applicant itself)
to consider the risks of oil spills in its own EA. See, e.g., Atchafalaya Basinkeeper v. U.S. Army
Corps of Engineers, 2020 WL 1450750, at *12 (M.D. La. Mar. 25, 2020) (“[T]he Corps’
regulations do not require the Corps to . . . gather its own information upon which to base an
EA”) (quoting Friends of the Earth v. Hintz, 800 F.2d 822, 834 (9th Cir. 1986)); Stop the
Pipeline v. White, 233 F. Supp. 2d 957, 967-68 (S.D. Ohio 2002) (“An agency may fulfill its
obligations under NEPA to conduct an independent evaluation of environmental impacts by
reviewing and relying on information, data, and conclusions supplied by other federal or state
agencies.” (emphasis added)); cf. Hoosier Env. Council v. U.S. Army Corps of Engineers, 722
F.3d 1053, 1061 (7th Cir. 2013) (“If another agency has conducted a responsible analysis, the
Corps can rely on it in making its own decisions.”); Town of Superior v. U.S. Fish & Wildlife
24
Serv., 913 F. Supp. 2d 1087, 1127 (D. Colo. 2012) (“[F]ederal agencies may rely on analyses
conducted by state and local governments instead of devoting resources to replicating them.”).
Accordingly, the Court finds that it was appropriate for the Corps to evaluate and incorporate the
State EIS into its findings, without needing to “reinvent the wheel.”
And third, Plaintiffs argue that the Corps’ discussion of the oil spill analysis “fails to
grapple with the effects of an oil spill on the aquatic environment” and “falls far short in its
treatment of harm to the human environment and environmental justice.” Pls.’ Reply at 7–8.
Specifically, Plaintiffs argue that the Corps failed to address the “Tribes’ unique vulnerability to
oil spills, and thereby failed to comply with NEPA’s mandate to take a hard look at the Project’s
environmental consequences.” Id. at 9. The Section 408 EA does, however, discuss the effects of
an oil spill on aquatic life, birds, mammals, and wild rice. See Joint Ex. 2, EA-SOF, App’x E at
13. And the Section 404 EA indicates that the Corps undertook “robust coordination with Tribes
to ensure mitigative measures would be taken to reduce any adverse effects to tribal resources.”
Joint Ex. 2, EA-SOF at 127.
Before moving on to Plaintiffs’ CWA claims, the Court shall address the parties’
arguments regarding the import of the D.C. Circuit’s decision in Standing Rock Sioux Tribe v.
U.S. Army Corps of Engineers, --- F.3d ---, 2021 WL 244862 (D.C. Cir. Jan. 26, 2021), which
was issued after Plaintiffs’ motion had been fully briefed. Each party filed a supplemental notice
on the docket regarding the D.C. Circuit’s decision. Plaintiffs argue that the Circuit’s decision
clarifies that the Corps must consider the “potential consequences” of an oil leak in its NEPA
analysis of an oil pipeline. See Pls.’ Suppl. Auth. at 1. The Corps argues that the D.C. Circuit’s
decision “does not add anything to support Plaintiffs’ case” because “[t]o the extent it was
required, the Corps analyzed potential impacts of oil spills and leaks.” Corps’ Resp. to Pls.’
25
Suppl Auth. at 1–2. Enbridge largely echoes the Corps’ argument. See Enbridge’s Resp. to Pls.’
Suppl. at 1. The Court agrees with the Corps and Enbridge that the Standing Rock decision does
not alter the Court’s conclusion that Plaintiffs has not shown a likelihood of success on the
merits of their claim that the Corps’ NEPA analysis was inadequate. The D.C. Circuit in
Standing Rock considered whether the district court correctly concluded on summary judgment
that the effects of the Corps granting an easement for construction of an oil pipeline were likely
to be “highly controversial,” requiring the Corps to prepare an EIS. 2021 WL 244862, at *4.
The decision was not based on claims, as here, that the Corps failed at all to consider the effects
of an oil spill. See Pls.’ Mot. at 14. Accordingly, the Circuit’s decision does not change the
Court’s conclusion based on the current record that the Corps did sufficiently address oil spills.
b. CWA
Plaintiffs also argue that Defendants violated the CWA by failing to analyze the risks and
potential harms associated with oil spills. Pls.’ Mot. at 17. Plaintiffs contend that by failing to
consider the potential harms associated with an oil spill, the Corps could not have properly
determined that there are no practicable, less environmentally harmful alternatives to the Project,
or that the Project is in the public interest. Id. The Corps argues that the CWA does not require
the Corps to evaluate the potential environmental effects of alternatives deemed not practicable.
Corps’ Opp’n at 19-20 (“Once an alternative is deemed not to be practicable no further analysis
is required under [40 C.F.R. 230.10(a).”). The Court agrees with the Corps that the CWA
regulations do not require the Corps to evaluate the environmental consequences of alternatives
deemed “not practicable.” Doing so would require the Corps to expend additional resources
examining effects of alternatives already discarded. See Town of Norfolk v. U.S. Army Corps of
Engineers, 968 F.2d 1438, 1454 (1st Cir. 1992) (concluding that the Corps did not need to weigh
26
the adverse impacts of alternatives sites in its public interest review because doing so “asks the
Corps to duplicate the ‘practicable alternatives’ analysis”). In any event, the Corps in this case
did compare the risk of oil spills of potential alternatives, and concluded that those alternatives
presented a greater risk of a potential spill than a new pipeline. See infra Part III(2)(a).
As to the public interest review, the Corps argues that such review is the final step in its
CWA process, and “is only undertaken for the project that will be permitted . . and is only
performed after every alternative has been disqualified.” Corps’ Opp’n at 5, 19–20. Here, the
Court finds that Plaintiffs are unlikely to succeed on their claim that the Corps failed to address
the potential for oil spills of Replacement Line 3 in their “public interest” review under the
CWA. The Corps identified the potential for oil spills as a consideration in its public interest
review. Joint Ex. 2, EA-SOF at 51. And the Corps found that based on the comparative risk
posed by “no-build” and other alternatives, issuing the Section 404 permit was in the public
interest.
2. Challenges to the Corps’ Consideration of Alternatives
Plaintiffs next argue that Defendants failed to comply with NEPA and the CWA by
“refusing to consider” alternatives to the route of the Project and the construction methods at
certain waterbody crossings. Pls.’ Mot. at 18–19. Before addressing the parties’ arguments on
each point, the Court shall discuss the appropriate analysis of “alternatives” required by each
statute.
The regulations implementing Section 404 of the CWA provide that “no discharge or no
discharge of dredged or fill material shall be permitted if there is a practicable alternative to the
proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as
the alternative does not have other significant adverse environmental consequences.” 40 C.F.R.
§ 230.10(a) (emphasis added). A “practicable” alternative is one that “is available and capable of
27
being done after taking into consideration cost, existing technology, and logistics in light of
overall project purposes.” Id. § 230.10(a)(2) (emphasis added). Where, as here, the activity
associated with a discharge is not water dependent, see Joint Ex. 2, EA-SOF at 17, the CWA
regulations create a rebuttable presumption that there are practicable and environmentally
preferable alternatives to discharging dredged and fill material into wetlands. 40 C.F.R.
§ 230.10(a)(3).
NEPA also requires agencies to consider alternatives to a proposed action, even if the
agency finds no significant impact based upon an EA. 40 C.F.R. § 1508.9(b) (requiring an
environmental assessment to include brief discussions of “alternatives as required by section
102(2)(E),” and “of the environmental impacts of the proposed action and alternatives”). To
comply with NEPA, an EA must include a “brief discussion of reasonable alternatives to the
proposed action.” Standing Rock, 255 F. Supp. 3d at 134 (internal citations and quotation marks
omitted). An EA’s consideration of “reasonable alternatives” need not be “as rigorous as the
consideration of alternatives in an EIS.” Id. (internal citations and quotation marks omitted). An
alternative is “reasonable” if it is “objectively feasible as well as ‘reasonable in light of [the
agency’s] objectives.’” Myersville, 783 F.3d at 1323 (quoting Theodore Roosevelt Conserv.
P’ship, 661 F.3d at 72). “NEPA requires only that the Corps consider alternatives relevant to the
applicant’s goals and the Corps is not to define what those goals should be.” City of Shoreacres,
420 F.3d at 450 (citing Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 198 (D.C. Cir.),
cert. denied 502 U.S. 994 (1991)). The agency “bears the responsibility for deciding which
alternatives to consider” and need only follow a ‘rule of reason’,” which governs “both which
alternatives the agency must discuss, and the extent to which it must discuss them.” Citizens
Against Burlington, 938 F.2d at 195 (internal citations omitted). An agency's “specification of
28
the range of reasonable alternatives is entitled to deference.” Myersville, 783 F.3d at 1323
(internal citations omitted).
For the reasons set forth below, the Court finds that Plaintiffs have not established that
they are likely to succeed on the merits of the claims that the Corps’ analysis of route and
construction alternatives under the CWA or NEPA was arbitrary and capricious.
a. Route Alternatives
Plaintiffs first argue that the Corps’ analysis of alternatives is deficient because the Corps
limited “the range of alternatives . . . to the route corridor designated by the MPUC.” Pls.’ Mot.
at 17. Plaintiffs argue that the Corps’ failure to consider pipeline routes other than the route
identified by the MPUC violated the CWA and NEPA because the Corps must “independently
evaluate the information presented to it, not . . . blindly eliminate options based on a state
agency’s decision.” Pls.’ Mot. at 19–20. Under the CWA specifically, Plaintiffs contend that the
Corps was required to “presume” that a “different pipeline route or other alternative” that “does
not affect an aquatic site” could be selected. Id. (citing Del. Riverkeeper Network v. Sec’y of
Penn. Dep’t of Env. Prot., 870 F.3d 171, 180 (3d Cir. 2017)).
The Corps and Enbridge argue that the Corps’ consideration of alternatives satisfied its
obligations under both statutes. See Corps’ Opp’n at 25–31; Enbridge’s Opp’n at 29–31.
Namely, the Corps considered “no action” alternatives (continued use of Existing Line 3),
alternatives involving transportation of oil by rail or truck, and combinations involving Existing
Line 3 and other methods of transportation. Joint Ex. 2, EA-SOF at 18–21. The Corps considered
in reasonable detail each of these alternatives—including the most obvious alternative, the
continued use of the same route occupied by Existing Line 3—and rejected each as impracticable
in light of the Project’s purpose. See id. In its discussion of continued use of Existing Line 3’s
29
route, for example, the Corps noted that construction would require a wider workspace and more
time with open trenches, risking greater environmental harms than construction of a new route.
Id. at 24. The Corps further noted that Existing Line 3 crosses the Chippewa National Forest and
easements through the Leech Lake and Fond du Lac Reservations, which are set to expire in
2029. Id. The Corps concluded that building the new pipeline along the same route would not be
practicable because, among other reasons, the Leech Lake Band opposes extending the easement.
Id; see also Joint Ex. 18, Transcript of MPUC Deliberations 14:24-15:8.
The question, then, is whether the Corps was required to consider alternative routes to
place a new pipeline (other than the route of the existing line). Plaintiffs suggest that the Corps
ignored proposed “less-environmentally damaging” corridors. Pls.’ Reply at 14. Plaintiffs cite,
for example, their own comments during the 2019 notice and comment period proposing two
alternative routes. Id. The Corps responds that its analysis of alternatives was appropriately
constrained by the route permitted under state law—the route designated by the responsible state
agency, the MPUC. See Corps’ Opp’n at 29.
The Court finds that the Corps’ discussion of alternatives was reasonably limited to the
route corridor approved by the MPUC and the “no action” alternatives discussed. Even in the
case cited by Plaintiffs applying the CWA alternatives analysis, the court stated the Corps was
required to “presume” that a “different pipeline route or other alternative” that “does not affect
an aquatic site” could be selected. Del. Riverkeeper, 870 F.3d at 180 (emphasis added). The
Corps here considered several “other alternatives” that would not require Enbridge to undertake
the dredging activities requiring a Section 404 permit. Plaintiffs, therefore, are not likely to
succeed on their claim that the Corps’ CWA alternatives analysis was unreasonable by failing to
consider obvious alternatives.
30
Plaintiffs are also unlikely to succeed on the merits of their claim that the Corps’ analysis
of alternatives under NEPA was deficient. Where, as here, a federal agency is “not the sponsor of
a project,” its “consideration of alternatives may accord substantial weight to the preferences of
the applicant and/or sponsor in the siting . . . of the project.” City of Grapevine, Tex. v. Dep’t of
Transp., 17 F.3d 1502, 1506 (D.C. Cir. 1994) (internal citation and quotation marks omitted).
For example, in Friends of Capital Crescent Trail v. Fed. Transit Admin., 877 F.3d 1051 (D.C.
Cir. 2017), the court concluded that the federal agency’s discussion of alternatives was sufficient
under NEPA even though it addressed only two alternatives: a no build option and Maryland’s
preferred light rail line. Id. at 1063. The court observed that the state had “initially considered
numerous alternatives,” and “eliminated from further consideration” alternatives not considered
reasonable. Id. After the state’s elimination of alternatives, the federal agency’s role was
“narrowed”: “[i]ts ultimate decision was to decide whether or not to fund the preferred
alternative.” Id.
The Corps faced a similar decision here: whether or not to permit the Project based on the
route that had been proposed by Enbridge, subject to extensive scrutiny, and ultimately selected
by the state agency. The Corps was not required to “reinvent the wheel.” See Hoosier
Environmental, 722 F.3d at 1061. Based on the state’s elimination of other proposed routes for a
new pipeline, the Corps’ “specification of the range of reasonable alternatives” was not arbitrary
or capricious. Myersville, 783 F.3d at 1323; see also Envtl. Prot. Info Ctr. v. U.S. Forest Serv.,
451 F.3d 1005, 1016 (9th Cir. 2006) (“[A]n agency’s obligation to consider alternatives under an
EA is a lesser one than under an EIS.”) (internal quotation marks omitted).
31
b. Alternative Construction Methods
Plaintiffs also contest the adequacy of Corps’ consideration of alternative construction
methods under NEPA and the CWA. In their public comments on this issue, Plaintiffs noted that
“the choice of construction method at each location can have extremely disparate adverse
impacts to the environment in general and water quality specifically.” Pls.’ Mot at 21 (citing
Joint Ex. 7; Joint Ex. 8). Plaintiffs specifically suggested that use of a “Horizontal Directional
Drill (HDD)” method” (as opposed to “wet and dry crossing methods”) at all crossing locations
would be a “less environmentally-damaging alternative.” Joint Ex. 7, Comments on Application
No. 2014-01071-TJH at 55. Plaintiffs contend that the “vast majority” of the 227 water crossings
will consist of “dry crossings,” which they argue is a “a more impactful construction method” in
which the water is diverted using damming techniques while the trench is excavated.” Pls.’ Mot.
at 9 (citing Joint Ex. 2, EA-SOF at 29, tbl. 2). According to Plaintiffs, this “dry crossing” method
risks harm to the stability of the waterways’ banks, potential aquatic fatalities, and the release of
sediment into the water. Id. (citing Triplett Decl. ¶¶ 19–26). Plaintiffs argue that the Corps failed
to evaluate the practicability of the HDD method at each crossing, or explain how impacts at
each crossing location may vary based on the method selected. Id. at 21.
The Corps responds that the Section 404 EA contains a “detailed review of the proposed
construction methods,” noting that 21 streams would be crossed by “Horizontal Directional Drill
(HDD) or bore method, and 11 will be crossed via a trench method.” Corps’ Opp’n at 32. The
EA also explains that the Corps reviewed the Environmental Protection Plan submitted by
Enbridge (see Joint Exhibit 12), which “compares the constructability advantages and
disadvantages associated with each type of crossing method.” Corps’ Opp’n at 32. In addition,
the record indicates that the Corps coordinated with state agencies and Enbridge to “review
32
proposed pipeline construction methods at waterbody and wetland crossings.” Joint Ex. 3, First
Public Notice Comments and Responses at 5. After so doing, the Corps concluded that “for site
specific reasons” the HDD method “might pose too high of risk for frac-outs (release of drilling
mud) potentially affecting the waterbody or biota.” Id. The Corps also reasoned that “the HDD
method is not practicable at every waterbody crossing because of site specific concerns,
availability of HDD equipment, and costs.” Id. Based on this record, the Court finds that the
Corps took the requisite “hard look” at alternative construction methods, including the method
offered by Plaintiffs, and provided adequate analysis to support its rationale for using distinct
construction methods at different sites.
B. Irreparable Harm
The Court next considers whether Plaintiffs have demonstrated “irreparable harm” in the
absence of an injunction. To constitute “irreparable harm,” the injury alleged must be “both
certain and great, actual and not theoretical, beyond remediation, and of such imminence that
there is a clear and present need for equitable relief.” Mexichem Specialty Resins, Inc. v. E.P.A.,
787 F.3d 544, 555 (D.C. Cir. 2015) (internal citations and quotation marks omitted). And
“[p]laintiffs seeking preliminary relief [must] demonstrate that irreparable injury is likely in the
absence of an injunction.” Winter, 555 U.S. at 22 (internal citations omitted). “[P]ossibility of
irreparable harm” is not enough. Id. “[P]roving ‘irreparable’ injury is a considerable burden,
requiring proof that the movant's injury is ‘certain, great and actual—not theoretical—and
imminent, creating a clear and present need for extraordinary equitable relief to prevent harm.’”
Power Mobility Coal. v. Leavitt, 404 F. Supp. 2d 190, 204 (D.D.C. 2005) (quoting Wis. Gas Co.
v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)).
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In this case, Plaintiffs discuss two types of “irreparable harm” that they claim will occur
in the absence of an injunction. 8 First, Plaintiffs claim that the environment will be irreparably
injured because the construction of Line 3 involves clearing tress and vegetation for the
pipeline’s right of way, and will result in the permanent loss of 9.97 acres of wetlands and the
conversion of approximately 230 acres to “emergent” wetland. Pls.’ Mot. at 22–23. Second,
Plaintiffs argue that a procedural violation of NEPA constitutes irreparable harm because it is
“combined with a showing of environmental or aesthetic injury.” Id. at 23.
Plaintiffs primarily contend that the activities authorized by the Corps will “inflict
irreparable harm” on the environment, citing the EA’s conclusion that the Project will result in
the permanent loss of 9.97 acres of wetlands, and the conversion of 81 acres of scrub-shrub
wetland and 148 acres of forested wetland to emergent wetland. Pls.’ Mot. at 22–23 (citing Joint
Ex. 2, EA-SOF at 21, 36). These alterations, according to Plaintiffs will result in the loss of the
wetlands’ original vegetation, the “impaired” ability of the wetlands to mitigate flood risk, an
increased risk of oil spills, and ongoing harm to wildlife species.” Id. at 23 (citing Triplett Decl.
¶¶ 7–10). This loss or conversion, according to Plaintiffs, will also “alter the wetlands’ aesthetic
appearance.” Id. at 23.
8
The Corps argues that Plaintiffs’ timing in seeking a preliminary injunction undermines their
claims of “irreparable harm.” Corps’ Opp’n at 34. The Corps contends that “Plaintiffs waited
over a month after the Corps Permit was granted before filing their complaint and motion for a
preliminary injunction on December 24, 2020” and “took little action to promptly effect service
on Federal Defendant.” Id. at 34–35. In reply, Plaintiffs argue that they could not file suit until
after they had obtained the Corps’ underlying decision documents through a FOIA request, the
response to which Plaintiffs received on December 8, 2020. Pls.’ Reply at 19–20. The Court
“finds no unjustified delay in the timing” of Plaintiffs’ motion, and therefore will not weigh that
factor in its consideration of Plaintiffs’ allegations of irreparable harm. Atchaflaya Basinkeeper,
310 F. Supp. 3d at 721.
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Plaintiffs also submit declarations detailing how construction activities have already
harmed and will continue to harm the environment and Plaintiffs’ members. See, e.g., Joint Ex.
24, Decl. of Jamie Arsenault ¶ 7 (“The imminent destruction and permanent alteration of
[wetlands] will damage habitats and interfere with the White Earth Band’s culturally important
subsistence activities.”); Joint Ex. 25, Decl. of Michaa Aubid ¶ 7 (“If Enbridge is allowed to go
ahead with construction, these waterbodies on which [the Ojibwe and Amishinaabe] rely for
sustenance will be forever damaged or lost.”); Joint Ex. 26, Decl. of Jami Gaither ¶ 9
(“Destruction of those wetlands will impair my aesthetic and spiritual interests, and it will make
it more difficult for me to see and appreciate wildlife.”); Joint Ex. 27, Decl. of Winona LaDuke
¶ 16 (“Construction and operation of the Line 3 Project, as permitted by [the Corps] will
imminently and permanently damage the freshwater resources that are essential to sustain my
and my fellow tribal members’ treaty reserve foods of wild rice, fish, and maple syrup.”); Joint
Ex. 28, Decl. of Samuel Strong ¶ 12 (“The workers are destroying cultural natural resources
areas that are integral to our people’s survival and to our way of life[.]”).
The Court is sensitive to the concerns raised by Plaintiffs’ members. But the record
before the Court indicates that most of the environmental effects stemming from the construction
of Line 3 will not be “permanent or irreversible, as the preliminary injunction standard requires.”
Sierra Club v. U.S. Army Corps of Engineers, 990 F. Supp. 2d 9, 39 (D.D.C. 2013). Both the EA
and Enbridge’s Environmental Protection Plan detail extensive mitigation plans and post-
construction monitoring requirements. See, e.g., Joint Ex. 12, Enbridge Environmental Protection
Plan § 1; Joint Ex. 2, EA-SOF at 35 (noting that Enbridge will “restore the stream banks that had
been disturbed by construction to as near as possible to pre-construction conditions utilizing civil
survey data collected pre-Project”); id. (“Site specific restoration plans, completed in
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consultation with the appropriate agencies, as well as post construction monitoring would reduce
the potential for any long-term effects at waterbody crossing sites and to aquatic organisms at the
crossing sites.”); id. at 36 (indicating that the path cleared of trees and vegetation for the pipeline
right-of-way “would be allowed to revegetate after construction and would be monitored to
ensure the wetland restoration is progressing towards forested wetlands”); id. at 37 (“The
majority of impacts associated with the Project would be temporary, lasting only during the
installation of the pipeline, duration of the temporary access roads, and until initial restoration
after the pipeline is installed or access roads are removed.”). And, as Enbridge and the Corps
note, the Corps’ permit includes conditions related to wetlands restoration, monitoring, and
mitigation, and requires compliance with Enbridge’s Environmental Protection Plan, and the
Avoidance, Mitigation, Implementation Plan for Construction (prepared in consultation with the
Minnesota State Historic Preservation Office and consulting tribes). See Corps’ Opp’n at 9, 10;
Enbridge’s Opp’n at 12; Joint Ex. 1, Permit at 3–6. These conditions suggest that most of the
construction’s disruption to the environment will be temporary, undermining a finding of harm
that is “beyond remediation” to sustain preliminary injunctive relief. Mexichem, 787 F.3d at 555.
It is undisputed, however, that the construction of Line 3 will result in the “permanent
loss” of 9.97 acres of wetlands, as well as the conversion of approximately 230 acres to
“emergent wetland” in the Red Lake Watershed. Plaintiffs argue that these losses, together with
evidence that Red Lake Band and White Earth Band members “regularly use” the Red Lake
Watershed demonstrate “permanent harm.” Pls.’ Mot. at 19. The Corps and Enbridge correctly
note, however, that Plaintiffs do not “tie their harm allegations to the specific wetlands that are to
be permanently filled.” Corps’ Opp’n at 36; see also Enbridge’s Opp’n at 34. For example,
Plaintiffs do not offer evidence showing that the specific acres that will be “permanently altered”
36
are used by their members. The Court concludes, therefore, that Plaintiffs have not established
the type of “certain and great,” “beyond remediation,” and “imminent” harm required to satisfy
their high burden. Mexichem, 787 F.3d at 555; Power Mobility Coal, 404 F. Supp. 2d at 204.
Plaintiffs also argue that a NEPA violation coupled with an environmental or aesthetic
injury supports a finding of irreparable harm. Although Plaintiffs are correct that “an established
NEPA violation might rise to the level of irreparable harm when coupled with sufficient
evidence of environmental injury,” Plaintiffs have not established a likelihood of success relating
to their NEPA claims. See supra Part III(A). “Surely after missing the mark with respect to the
prerequisite, Plaintiffs cannot expect that the alleged but unproven procedural violation will
carry the day on the issue of irreparable harm.” Sierra Club, 990 F. Supp. 2d at 41.
C. Balance of Harms and Public Interest
The final two factors the Court must consider when deciding whether to grant a
preliminary injunction are the balance of harms and the public interest. Sierra Club, 990 F. Supp.
2d at 41. “Although allowing challenged conduct to persist certainly may be harmful to a
plaintiff and the public, harm can also flow from enjoining an activity, and the public may
benefit most from permitting it to continue.” Id. When “balanc[ing] the competing claims of
injury,” the Court must “consider the effect on each party of the granting or withholding of the
requested relief.” Winter, 555 U.S. at 24.
Plaintiffs argue that the balance of harms weighs in favor of granting an injunction, citing
the “irreparable harm to the environment and irreversible injury to Plaintiffs’ members,”
presented in their argument of “irreparable harm.” Pls.’ Mot at 25. In Plaintiffs’ view, the Corps
“has no stake in the Project” and any financial harm suffered by Enbridge from a “limited delay”
would be “self-inflicted” (because Enbridge has already begun construction, despite pending
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legal challenges) and therefore “cannot tip the balance of equities.” Pls.’ Mot. at 25; Pls.’ Reply
at 21-22. In addition, Plaintiffs argue that the public has an interest in preserving the
environment, which outweighs financial harms that Enbridge may incur. See Pls.’ Reply at
22–23.
Enbridge argues that a preliminary injunction is not in the public interest because it
would prolong the operation of Existing Line 3, which Enbridge is required to decommission,
and which is “deteriorating at an accelerating rate, and its continued operation poses a far greater
risk of accidental release and resulting environmental damage than the Replacement Project.”
Enbridge’s Opp’n at 36 (citing Joint Ex. 2, EA-SOF at 23). Enbridge notes that the continued use
of Existing Line 3 during a delay caused by an injunction would require Enbridge to undertake
intrusive integrity digs, including at sites in the Chippewa National Forest and on the Leech Lake
and Fond du Lac Reservation. Joint Ex. 2, EA-SOF at 22; Joint Ex. 32, Simonson Decl. ¶ 71.
Enbridge also identifies economic harms that would flow from an injunction, estimating that the
cost of a six-month delay would be $332 million. Joint Ex. 32, Simonson Decl. ¶ 75. Enbridge
also cites its directs employment of 5,222 workers, who would be without wages during a period
of delay, as well as the Project’s reliance on 1,600 suppliers and creation of 2,800 “indirect
jobs.” Enbridge’s Opp’n at 39–40; see also Joint Ex. 35, Decl. of Nancy Norr ¶ 11 (“[T]he
Project would create over 4,000 construction jobs, 1,600 local supplier and service spin-off jobs
and another 2,800 indirect jobs in the hospitality sector.”).
Although Plaintiffs correctly note that economic harm does not alone suffice to show
“irreparable injury,” see Pls.’ Mot. at 25 (citing Wisc. Gas Co. v. Fed. Reg. Comm’n, 758 F.2d
669, 674 (D.C. Cir. 1985)), the Court may nonetheless consider the economic effects of an
injunction in its balancing of harms and public interest review. In Sierra Club v. U.S. Army
38
Corps of Engineers, for example, the court considered “additional construction costs” of $262
million associated with a delay in construction of a pipeline and the “major resources” the
company had already committed to the pipeline project, including “intensive efforts to comply
with the myriad state and federal environmental regulations that the pipeline project implicates.”
Id. at 42-43. In that case, the court reasoned that “[t]he evidence of 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.” Id. at 43. As did the court in Sierra Club, the Court finds
compelling Enbridge’s argument that an injunction would cause financial losses to the company
and the workers directly and indirectly associated with the Project. Id.
Plaintiffs also argue that an injunction is in the public interest because the public has an
interest in “having governmental agencies abide by the federal laws that govern their existence
and operations.” Pls.’ Reply at 22 (internal citations and quotation marks omitted). But because
the Court has already found that Plaintiffs have not established a likelihood of success on the
merits of their NEPA and the CWA claims, the public interest in the Corps’ compliance with its
statutory duties “must be weighted accordingly.” Sierra Club, 990 F. Supp. 2d at 43; see also
Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1326 (D.C. Cir. 1998) (“The final preliminary
injunction factor, the public interest, also offers [plaintiff] no support because it is inextricably
linked with the merits of the case. If, as we have held, [plaintiff] is not likely to establish [a
likelihood of success in the merits], then public interest considerations weigh against an
injunction.”); ViroPharma, Inc. v. Hamburg, 898 F. Supp. 2d 1, 29–30 (D.D.C. 2012) (where
plaintiff was unlikely to establish that agency action did not comply with the law, the public
interest factor weighed against granting an injunction).
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Because the Corps is a government entity and party to the suit, the harm to the Corps and
the public interest “are one and the same, because the government's interest is the public
interest.” Pursuing America's Greatness v. FEC, 831 F.3d 500, 511 (D.C. Cir. 2016). The Corps
argues that its decision to grant Enbridge the Section 404 permit is based on its conclusion that
the Project is in the public interest. Corps’ Opp’n at 37. The Corps notes, for example, the public
safety and environmental benefits of replacing Line 3, as compared to the continued use of
Existing Line 3. See id. at 37–38. It also reiterates that the Project’s route avoids a national forest
and two Reservations. Id. at 40. In sum, the Corps contends that Plaintiffs ignore significant
benefits of the Project and fail to establish that “the permanent loss of less than ten acres of
wetland outweighs the benefit of reducing spill risk along the current pipeline route and
throughout the region.” Id. at 41.
Overall, the Court finds the balance of harms and public interest considerations to be a
close call. Plaintiffs offer numerous examples of potential environmental harms stemming from
the Project’s construction. But the Corps presents persuasive evidence that delaying
construction—and in doing so, continuing to rely on Existing Line 3 which Enbridge is required
to decommission pursuant to its Consent Decree—also causes ongoing environmental harm and
safety risks. And, as noted above, the Court cannot ignore the potential financial losses and
harmful economic effects on the local community if construction on the Project were to be
delayed. Taking into account all these considerations, the Court finds that Plaintiffs have not
definitely tipped the scale in their favor.
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IV. CONCLUSION
For the foregoing reasons, the Court concludes that Plaintiffs have failed to satisfy their
burden of demonstrating that they are entitled to preliminary injunctive relief. Accordingly,
based on the current record, the Court shall DENY Plaintiffs’ Motion for a Preliminary
Injunction. An appropriate Order accompanies this Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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