Judge rules that separate spill plans not needed for onshore waters
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December 18, 2017
Judge rules that separate spill plans not needed for onshore waters

A U.S. district court judge in Michigan denied a request to find that the Department of Transportation (DOT) violated the Clean Water Act (CWA) by failing for nearly 2 decades to determine if pipeline oil spill response plans that traverse inland water bodies required both onshore and offshore components.

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The case revolves around the standing of the plaintiff, the National Wildlife Federation (NWF). According to Judge Mark A. Goldsmith, while the NWF met most of the requirements to establish standing, it failed to demonstrate how any alleged procedural error by the DOT affected agency action.

Goldsmith reduced the complex discussion of standing to one main point—whether the DOT violated the CWA as amended by the 1989 Oil Pollution Act (OPA) because the department reviewed response plans based on regulations rather than on language in the CWA itself. The judge concluded that there is no substantial difference between the language of the CWA and the language of DOT’s implementing regulations. Thus, the judge denied NWF’s request to declare that the DOT failed to meet its CWA obligations.

Spill response plans

Under the OPA, a 1989 amendment to the CWA, operators must develop spill response plans for both offshore facilities and certain onshore facilities. While all offshore facilities must have plans, plans must be developed for only those onshore facilities that can “reasonably be expected to cause substantial harm to the environment by discharging into or on the navigable waters.” Pipelines are included in the definition of a facility.

The OPA does not expressly address whether interconnected pipelines over both land and water should be viewed as embracing a single facility—and characterized as solely offshore or onshore—or whether they should be viewed as a compendium of different facilities with separate land and water segments. According to the NWF, interconnected pipelines consist of two kinds of facilities; the land portion is an onshore facility, while the portion in or over water is an offshore facility. The DOT contends that the entire network of pipelines is an onshore facility—both the portion that traverses land and the portion that traverses water.

Standing

For the case to have proceeded on the merits, the NWF had to demonstrate standing in three ways; specifically that:

  • It or its members suffered an injury in fact that is (1) concrete and particularized and (2) actual or imminent, not conjectural or hypothetical.
  • The injury is fairly traceable to the challenged action of the defendant.
  • It is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

While NWF satisfied the harm requirement, Goldsmith said it did not satisfy the special causation and redressability requirements applicable to challenges to an agency action based on alleged procedural errors. In other words, the NWF made no plausible case that a review by the DOT without the claimed errors—i.e., absence of reviews applicable to offshore facilities—might have led to a different result in the approval process.

Regulations vs. CWA

As noted, one basis of NWF’s suit is that the DOT failed to meet its obligations because it considered how the plans conformed to regulations rather than to the CWA itself.

“That is entirely without significance,” stated Goldsmith. “The regulations faithfully track the statute. All of the requirements for spill response plans contained in the CWA are present in the regulations. Both the CWA and onshore regulations require the following for approval of a spill response plan:

  • The plan must be consistent with the National Contingency Plan and Area Contingency Plans.
  • It must identify the qualified individual having full authority to implement removal actions and how that person will communicate with federal officials.
  • The plan must identify private personnel and equipment necessary to remove or mitigate a worst case discharge.
  • It must describe the necessary training and testing to be done by operators.
  • Finally, the plan must be updated periodically and be resubmitted for approval of each significant change.”

The judge then provides a table showing a provision-by-provision comparison of OPA language and language in DOT’s matching regulations. He concluded that the NWF offers no rebuttal to what cannot be reasonably disputed—the regulations are congruent with the CWA.

“This means that DOT’s finding that plans complied with the regulations is the equivalent of a finding that they complied with the statute,” Goldsmith writes. “Thus, any ‘error’ in the review process could hardly have had any impact on the decision to approve.”

No CWA distinction

Equally unconvincing to the judge was NWF’s other argument—that DOT’s reviews and approvals were made pursuant to regulations that, by their terms, apply to onshore facilities rather than to offshore facilities.

“The CWA makes no distinction between the requirements for spill response plans for onshore and offshore facilities,” states the judge. “Further, the onshore regulations that were utilized expressly cover navigable waters. For example, the regulations expressly account for worst-case discharges that occur from segments of a facility that cross navigable waters.”

Based on the above findings, Goldsmith denied NWF’s request for a summary judgment against the DOT and granted DOT’s request for a cross-motion summary judgment.

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