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

1 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,

(D.C. Cir. 2015) (citing

1 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. 2 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.

2 Dep’t of Transp. v. Pub. Citizen,

, 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.”

at 36–37 (citing Pub. Citizen,

). 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.”

at 37 (citing Robertson v. Methow

Valley Citizens Council,

, 350–51 (1989). NEPA “does not mandate particular

results,” but prohibits “uninformed—rather than unwise—agency action.” Robertson, 490 U.S. at

350–51. “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,

(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,

, 146 (D.C. Cir. 1985) (quoting

(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,

(citing

(C);

)). “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

3 Canyon Trust v. FAA,

(D.C. Cir. 2002) (quoting Sierra Club v. Peterson,

(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,

(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,

(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.”

(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.

; 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.”

§

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 ---,

, at *10 (D.C. Cir. Jan. 26, 2021) (quoting City of

Shoreacres v. Waterworth,

(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.”

(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

4 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.”

(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,

. Section 404 of the CWA assigns the Corps jurisdiction to issue

permits authorizing the discharge of fill material into “navigable waters.”

(a)(1), (4), 1344(a); see Sierra Club,

. The Corps’ permitting authority also

extends to “wetlands adjacent to navigable waters.” Nat’l Ass’n of Mfrs. v. Dep’t of Defense,

(2018) (citing United States v. Riverside Bayview Homes, Inc.,

(1985)); see also

(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.”

(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.”

§ 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

5 activity and will grant the permit “unless the district engineer determines that [the activity]

would be contrary to the public interest.”

(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[.]”

. 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.

;

(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

6 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.

7 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.

8 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,

(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.

10 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,

(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.

. The court, therefore, remanded to the MPUC for further proceedings.

. 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

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.

. Enbridge first applied for

11 an individual CWA permit in 2015 and submitted a revised application on September 21, 2018.

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

12 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

13 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,

(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.

; 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.

14 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,

(D.C. Cir. 2011) (quoting Winter v. Nat. Res. Def. Council, Inc.,

(2008)); see also

Mazurek v. Armstrong,

(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,

(D.C. Cir. 2014) (quoting

Sherley,

) (internal quotation marks omitted). When seeking such relief, “the

15 movant has the burden to show that all four factors, taken together, weigh in favor of the

injunction.” Abdullah v. Obama,

(D.C. Cir. 2014) (quoting Davis v. Pension

Benefit Guar. Corp.,

(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.”

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.,

(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,

(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,

.

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,

(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.

16 § 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.,

(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,

(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,

(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.,

(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.

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.

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,

(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,

(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,

(quoting Sierra Club v. U.S. Dep’t of Transp.,

(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,

(citing Kleppe v. Sierra

Club,

, 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,

(D.C. Cir. 2011) (quoting TOMAC v. Norton,

(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,

(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.,

(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,

(M.D. La.), rev’d on other grounds,

(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.

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

(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

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,

, 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,

(9th Cir. 1986)); Stop the

Pipeline v. White,

(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,

(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.,

(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 ---,

(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.

, 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.

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,

(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.”

(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.”

§ 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.

(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.

(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,

(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.”

(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,

(quoting Theodore Roosevelt Conserv.

P’ship,

). “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,

(citing Citizens Against Burlington, Inc. v. Busey,

(D.C. Cir.),

cert. denied

(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,

(internal citations omitted). An agency's “specification of

28 the range of reasonable alternatives is entitled to deference.” Myersville,

(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.

(citing Del. Riverkeeper Network v. Sec’y of

Penn. Dep’t of Env. Prot.,

(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

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,

(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.,

(D.C. Cir. 1994) (internal citation and quotation marks omitted).

For example, in Friends of Capital Crescent Trail v. Fed. Transit Admin.,

(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.

. The court observed that the state had “initially considered

numerous alternatives,” and “eliminated from further consideration” alternatives not considered

reasonable.

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.”

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,

. 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,

; see also Envtl. Prot. Info Ctr. v. U.S. Forest Serv.,

(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.

(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.,

(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,

(internal citations omitted). “[P]ossibility of

irreparable harm” is not enough.

“[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,

(D.D.C. 2005) (quoting Wis. Gas Co.

v. FERC,

, 674 (D.C. Cir. 1985)).

33 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,

.

34 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,

(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

35 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,

.

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,

; Power Mobility Coal,

.

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,

.

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,

. “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.”

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,

.

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

37 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,

, 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,

; see also

Serono Labs., Inc. v. Shalala,

(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,

, 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).

39 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,

(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

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.

40 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

41