# Petition for Writ of Certiorari — City of Austin v. Brownlee > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1559%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2004 - **Citation:** 543 U.S. 809 ## Text 08 Hitege® BPR TEE Supreme Court of the Anited States « CITY OF AUSTIN, MARIAN COLLINS, BARTON SPRINGS-EDWARDS AQUIFER CONSERVATION DISTRICT, and DAVID ROBERTSON, Petitioners, V. NORMAN MINETA, Secretary of Transportation, MIKE LEAVITT, Administrator of Environmental Protection Agency, LES BROWNLEE, Acting Secretary of the Army, THE UNITED STATES, and LONGHORN PARTNERS PIPELINE, L.P., Respondents. 2 On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit € PETITION FOR WRIT OF CERTIORARI » CONNIE ODE RENEA HICKs* P. O. Box 1574 LAW OFFICE OF MAX RENEA HICKS El Prado, New Mexico 800 Norwood Tower 87529 114 West 7th Street (505) 758-2203 Austin, Texas 78701 DAVID ALLAN SMITH (512) 480-8231 City Attorney, R. JAMES GEORGE, JR. City of Austin BEN J. CUNNINGHAM, 114 West 7th Street, Of Counsel Suite 500 GEORGE & BROTHERS, L.L.P. Austin, Texas 78701 1100 Norwood Tower (512) 974-2166 114 West 7th Street ioe Austin, Texas 78701 Attorneys for Petitioner (512) 495-1400 City of Austin Attorneys for Petitioners Marian Collins, Barton Springs-Edwards Aquifer Conservation District, and David Robertson *Counsel of Record for Petitioners COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342-2831 QUESTIONS PRESENTED FOR REVIEW Under governing regulations for the National Envi- ronmental Policy Act, 42 U.S.C. §§ 4321 et seg. (NEPA), promulgated by the Council on Environmental Quality (CEQ), the framework of the NEPA process is that a major federal action’s potential environmental impact is evalu- ated initially by an environmental assessment (EA), which results in either a finding of no significant impact (FONSI) — at which point the NEPA process stops — or a determina- tion that the action may significantly affect the environ- ment, in which case a full environmental study called an environmental impact statement (EIS) is conducted. i. May federal agencies evade the CEQ regulations, and still comply with NEPA’s statutory requirement that, “to the fullest extent possible,” they conduct an EJS whenever a major federal action may “significantly af- fect[] the quality of the human environment,” 42 U.S.C. § 4332(C), by the purely bureaucratic device of adding privately-negotiated mitigation measures to a project whose impact ctherwise rises to the level of “significance” that would trigger an EIS and, instead, issuing a “mitigated FONSI” based on policy-dictated estimations of acceptable societal risk rather than fact-based determinations about “significance”? In the absence of direction from statute or regulation, what are the legal standards governing Remey ap- proval of mitigated FONSIs? il LIST OF PARTIES Appellants below: CITY OF AUSTIN and MARIAN COLLINS; BARTON SPRINGS-EDWARDS AQUI- FER CONSERVATION DISTRICT; DAVID ROBERTSON. Appellees below: THOMAS E. WHITE, in his official capacity as Acting Secre- tary of the Department of Army; NORMAN Y. MINETA, Secretary, Department of Transportation; CHRISTINE T. WHITMAN, Administrator, United States Environmental Protection Agency; UNITED STATES OF AMERICA, and LONGHORN PARTNERS PIPELINE, L.P. ill TABLE OF CONTENTS Page QUESTIONS PRESENTED FOR REVIEW................. i ea se sednsnciuasentone il po ili pe ba gy iv SUEY MED OT 5 xcccsecsasscvrsescesseseccrsnctoesscosvenssvesvenens 1 ios cians cicsudalidndevnencssedeceaasesess 1 CONSTITUTIONAL PROVISIONS AND STATUTES EIN VOL Oe) EIN TEIES CASB..........cccccsssccescccsccocsrcceseees RARE EREEEIN © OF THIEL CABD........:00cercssccocsccsccssccconenses I. II. \ The extra-legal bureaucratic pressures for mitigated FONSIs have not so overwhelmed NEPA’s statutory and regulatory procedures that the policymaking weighing of risks and benefits that is reserved for the end of the EIS process may be substituted for fact-based de- terminations of “significance” at the EA phase. The court should act to resolve the conflict between the Second and Fifth Circuits on the standard to be used for evaluating significance determinations at the EA phase in the era of IE SPI cc onntnccnkesakcacessdenssgveccsscsacnactens SEE a OO 12 iV TABLE OF AUTHORITIES Page CASES Andrus v. Sierra Club, 442 U.S. 347 (1979).........ccc eee eee 10 Davis v. Mineta, 302 F.3d 1104 (10th Cir. 2002)............... 10 Deukmejian v. NRC, 751 F.2d 1287 (D.C. Cir. 1984)........ 10 Marsh v. Oregon Natural Resources Council, 490 Res Se IEEE insivcininionuipncnananciascendoumauiaibinmidatenians 9,14 National Audubon Soc’y v. Hoffman, 132 F.3d 7 (2d SUED: HEIPTED isidinsnansadatsskateissindiaddasiadavesabituecdakomaidcanaetains 18 Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726 SUUIUIE ssadatictucaniahiiesnacomsncadtncsdliasisaiadiiaabibinaansaiderticiadiia: 12 Robertson v. Methow Valley Citizens Council, 490 i EE TEE siervidilbucsh ac bnscsoaniéainitaeunbaccaskaauctecean 9, 12,13 Spiller v. White, 352 F.3d 235 (5th Cir. 2003).........0...0..... 1 STATUTES AND REGULATIONS er IE II se sacrsicinacibis iaeicecniansaniaieiiourcaamaitennenidnedes 2 ee ica néctsarcadansavinccsenrabccastcinraiuainiandamcbiimacdian 6 ee rs Se eh iidideieusnsvbnistvisnscdsntackéspiactiias wisaeobadobeudeds 1 Oe Me si ciccseiscnsuhiassaitecieidinevesssavdsasasesasneceares 13 ee EE Ss vesiirdccssssardatsicceisnntsniieermenaa 2 ee I SIE uss cniencpaccelssriatacesdvoncedbinsecsanmmaeaues 9 TABLE OF AUTHORITIES — Continued Page OTHER AUTHORITIES 46 Fed.Reg. 18,026 (March 23, 1981), “Forty Most Asked Questions Concerning CEQ’s National Environmental Policy Act Regulations”.................. 10, 51 Fed.Reg. 15,621 (April 25, 1986) ...............cccccccssssssseees Blumm, M., A Primer on Environmental Law and Some Directions for the Future, 11 VA. ENVTL. Bids Se AIMED chk ieiokscanovacesedssiicaeitinn caemanee Karkkainen, B., Toward a Smarter NEPA: Monitor- ing and Managing Government’s Environmental Performance, 102 COLUM. L. REV. 903 (2002) ................. Mandelker, D.R., NEPA LAW AND LITIGATION (2d ed. 1995) FGI OE settieriisstsisneriniiacilamadae ee ©} RAINE tixcnsiietisinincioiiualaamea enone Rogers, W., The Most Creative Moments in the History of Environmental Law: “The Whats,” eee WU. Tike Es TV. Bt issstsiseisdeseatcctietcs Modernizing NEPA Implementation, The NEPA Task Force Report to the Council on Environ- CREE IE iii aa ee ct i i i i i tl ri —_ —S~ he nt ot 1 PETITION FOR WRIT OF CERTIORARI The City of Austin (City), Marian Collins, the Barton Springs-Edwards Aquifer Conservation District, and David Robertson (collectively, the Collins petitioners) petition the Court to issue a writ of certiorari to review a judgment of the United States Court of Appeals for the Fifth Circuit. + OPINIONS BELOW The opinion of the court of appeals is published as Spiller v. White, 352 F.3d 235 (5th Cir. 2003), and re- printed at App. la-19a. The unpublished court of appeals order denying the petition for rehearing is at App. 97a- 98a. The final order of the United States District Court for the Western District of Texas :s not reported in the official reporters; it is reprinted at App. 20a-66a. The final deci- sion of the joint lead federal agencies — the United States Environmental Protection Agency (EPA) and the United States Department of Transportation (DOT) —- is not officially reported; it is reprinted at App. 67a-96a. ¢ JURISDICTION The court of appeals opinion and judgment issued on December 12, 2003. App. la-2la. The court of appeals denied the City and Collins petitioners’ joint motion for rehearing on January 12, 2004. App. 97a-98a. This Court’s jurisdiction is timely invoked under 28 U.S.C. § 1254(1). \ + Se 2 CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED IN THE CASE In pertinent part, 5 U.S.C. § 706(2) provides: The reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be — (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error. In pertinent part, 42 U.S.C. § 4332(C)(2) provides: The Congress authorizes and directs that, to the fullest extent possible . . . all agencies of the Fed- eral Government shall include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on — (i) the environmental impact of the proposed action, 3 (ii) any adverse environmental effects which cannot be avoided should the proposal be imple- mented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commit- ments of resources which would be involved in the proposed action should it be implemented. * STATEMENT OF THE CASE In 1997, Longhorn Partners Pipeline, L.P., a private, limited liability company, purchased an already half- century old, 450-mile mothballed pipeline that had experi- enced frequent spills and leaks — 173 according to the district court. App. 22a, 69a, 76a. Longhorn linked the old line with a new 250-mile segment and planned to convert it from shipping crude oil east to shipping gasoline, jet fuel, and other petroleum products from Texas Gulf Coast refineries west to El] Paso, at the western edge of Texas.’ The resulting pipeline — the Longhorn Pipeline — runs more than 700 miles across Texas, slicing through densely populated Austin neighborhoods and across vast, pristine ground and surface water sources that provide drinking ' More than half of the old segment of the Longhorn line is pre- 1970 electronic resistance welded pipe, an inferior type of pipe that is the subject of government advisories warning of its higher susceptibil- ity to certain failure mechanisms. 4 water for hundreds of thousands of Texans. Longhorn intends to ship 10 million gallons of pressurized gasoline and jet fuel a day through the old pipe, crossing city parks, residential backyards, rivers and streams, wetlands, recharge zones for sensitive aquifers, and working ranches. Local governments in Central Texas — the City of Austin, the Barton Springs-Edwards Aquifer Conservation District, and the Lower Colorado River Authority’ — joined with affected private landowners, including rancher Marian Collins and Law Professor David Robertson, who sued to stop the pipeline’s start-up until it had been evaluated under NEPA. The federal district court enjoined Longhorn’s operation until either DOT or EPA had com- pleted an environmental impact statement (EIS) under NEPA. App. 139a-140a.° Longhorn promptly sought, but was denied, an emer- gency stay from the Fifth Circuit. App. 155a. Lengthy negotiations ensued, resulting in a first-phase settlement agreement whereby the government and Longhorn dis- missed their appeals, and EPA and DOT were to jointly conduct an EA. App. 156a-184a. The EA, in turn, was to result in either a FONSI or a decision to conduct a more comprehensive EIS. App. 161a.‘ While the parties agreed that a mitigated FONSI was a possibility, any such result ? The Lower Colorado River Authority has resolved its dispute with Longhorn and is no longer in the case. * The district court permitted Longhorn to proceed with construc- tion, but at its own risk. * The settlement agreement also permitted the government to move to the EIS phase at any point during the EA phase. App. 161a. ap 05 tS Set bas ALD BO OOS Oe 5 had to comply with NEPA and CEQ regulations. App. 157a, 161a. The district court approved the settlement in early March of 1999 in an agreed order that prevented Long- horn’s operation until completion of the government environmental studies under the agreement. App. 185a- 188a. EPA and DOT issued a draft EA in the fall of 1999, preliminarily concluding that the pipeline’s operation was not likely to pose a significant threat to the environment and recommending a FONSI. Public meetings on the draft EA then were conducted in Houston, Austin, and El Paso, as well as two smaller Texas cities.” More than 6,000 written comments were submitted, overwhelmingly opposing the pipeline’s operation across its chosen route. App. 73a. Outside the public forums, the government engaged in private negotiations with Longhorn. As the ink dried on the first-phase settlement agreement, the chief NEPA policy arm for the White House, the Council on Environ- mental Quality (CEQ), began pressing the lead agencies and Longhorn to reach an accommodation. CEQ’s chief day-to-day official on the Longhorn matter worked to have them stop short of recommending a full EIS for the Long- horn line and, instead, issue a mitigated FONSI. Ray Clark Depo., p. 30; p. 150. EPA and DOT conducted extensive private negotia- tions with Longhorn to find a balance that let Longhorn ® Over 1,000 people attended the Austin meeting. App. 71a. 6 have its project along its chosen route while giving the government something — in the form of a list of mitigation measures — to tout as environmental improvement.’ By the time the NEPA process ended, these negotiations had yielded twenty-one distinct versions of mitigation plans proposed by Longhorn, the most significant of which were negotiated after the close of the public comment period. App. 75a n.4. Key to the private negotiations between Longhorn and the government was EPA's decision to enter into a consulta- tion agreement with the United States Fish and Wildlife Service under Section 7 of the Endangered Species Act, 16 U.S.C. § 1536(a), over the pipeline’s threat to endangered species in the Austin area, at Barton Springs. With EPA’s designation of Longhorn as its federal representative in the process, the endangered species consultation effectively excluded the public, the City of Austin, and the Collins petitioners, leaving only Longhorn and the federal agencies to hammer out the details of acceptable mitigation. Nonetheless, by the summer of 2000, DOT and EPA’ reached an impasse on whether to conduct an EIS or, instead, stop at an EA and issue a FONSI. In mid-July, they wrote CEQ, declared the impasse — with EPA favor- ing an EIS, and DOT opposed — and requested CEQ’s * The agencies repeatedly acceded to Longhorn rejections of agency-proposed mitigation measures based on the government's negotiating position that it could impose only the items that Longhorn agreed to. App. 75a. 7 BPA was the lead agency charged with “overseeing environmental impact analyses.” App. 157a. DOT was charged with “overseeing pipeline safety and technology.” Id. 7 assistance in resolving the “novel and difficult issues raised” by the Longhorn Pipeline dispute and the “policy choice” it had placed in the agencies’ laps. App. 189a-191a. CEQ’s response to the EPA/DOT impasse letter was to “recommend” issuance of a FONSI by mid-October, 2000. App. 192a-196a. The lead agencies complied, issuing the final EA and FONSI on November 3rd. The FONSI concluded that, without improvements, the impacts of the pipeline — which could be expected to experience a higher failure rate than an average pipeline, App. 7la — would be significant and an EIS required: “[Mlitigation measures are necessary reduce the poten- tial impacts of the proposed project to a level of insignifi- cance.” Final EA, ES-22 & 9-1 (emphasis added). The federal agencies concluded, however, that the long-running private negotiations between them and Longhorn, and the twenty-one mitigation plans that had passed back and forth, had yielded a pipeline mitigation plan they could live with: “The mitigation measures Longhorn will imple- ment if a FNSI is issued will minimize the potential risks of its project to an insignificant level.” App. 95a. The agencies’ decision to stop at a FONSI rested on highly uncertain estimated probabilities for particular environmental impacts during the pipeline’s anticipated 50-year operational life (at the end of which most of it would be more than a century old). App. 84a-92a (details of calculations of “residual risk”). Their estimate was that, during this time span, there is at least a 15.3% probability of stream, wetland, or public drinking water supply contamination, or death or injury to one or more persons. Id.* Due to the inadequacy of data necessary to make a reliable statistical prediction of this sort, the agencies hedged their bets by also adding “qualitative” judgment to the mitigated FONSI rationale.” The parties returned to district court as contemplated by the settlement agreement. Acting on cross-motions for summary judgment, the court upheld the FONSI. Detecting a “certain stench to the FONSI” from “White House influ- ence,” the court expressed “no doubt the White House’s policy goals affected the ultimate decision” to stop at a FONSI. App. 39a. It concluded on this point that “political policy goals” had been inserted into the final FONSI deci- sion, removing the usual cloak of deference. App. 40a. The district court was “extremely concerned” about the pipeline. App. 63a. Still, it upheld the mitigated FONSI decision, finding that a sufficiently “hard look” had been given and that the deferential “arbitrary and capricious” standard tied its hands. * The breakdown of the probabilities is: an 8% chance that a recreational stream will be contaminated at least once; a 5% chance that a wetland will be contaminated at least once; a .3% chance that a surface or subsurface public drinking water supply will be contaminated at least once; a .5% chance that one or more deaths will occur from a flash fire; and a 2.3% chance that injury will occur from a flash fire. The FONSI omitted the final EA’s calculation of the estimated threat of prime agricultural land contamination. Including that threat raises the statistical probability of a harmful environmental impact to 18.3%. * Final EA, Appendix 9B-1 (“[dJue to the uncertainties involved in such calculations, they are not the primary basis of the EA findings.”) 9 The Fifth Circuit used the same “arbitrary and capri- cious” standard to review issuance of a mitigated FONSI that this Court has used to review mitigated EISs in Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989), and Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989). App. 8a-9a. Based on this standard, the Fifth Circuit affirmed the district court. ¢ REASONS FOR GRANTING THE WRIT The questions presented here raise issues important to the administration of the nation’s environmental laws, including a conflict between at least the Second Circuit and Fifth Circuit on the question of the standard for approving a mitigated FONSI. This Court has never addressed the standards for mitigated FONSIs in the NEPA process. The last time the Court addressed the substantive rules of NEPA at all was fifteen years ago. Then, the Court did address mitigation measures, but in the EIS, not the EA, context. See Methow Valley, 490 U.S. at 351 (“important ingredient of an EIS is the discussion of steps that can be taken to mitigate adverse environmental consequences”); and Marsh, 490 U.S. at 363 (one issue is whether an EIS “must contain a complete mitigation plan”). Mitigated FONSIs — creatures of bureaucratic inven- tion — are not even mentioned in either the statute or CEQ’s NEPA regulations.” They are mentioned, however, * CEQ promulgated regulations to guide federal agencies in the administration of NEPA. See 40 C.F.R. Part 1500. These regulations are (Continued on following page) 10 in other extant CEQ guidance on NEPA, “Forty Most Asked Questions Concerning CEQ’s National Environ- mental Policy Act Regulations.” In its answer to Question No. 40, CEQ rejects the basic concept of mitigated FONSIs — at least insofar as they are used to avoid EISs by adding mitigation measures to bring a project’s impacts below the significance threshold: If a proposal appears to have adverse effects which would be significant, and certain mitiga- tion measures are then developed during the scop- ing or EA stages, the existence of such possible mitigation does not obviate the need for an EIS. Forty Most Asked Questions, 46 Fed.Reg. 18,038.” As Professor Mandelker points out in his NEPA treatise: “Council on Environmental Quality (CEQ) regulations contemplate mitigation measures in impact statements. They do not cover the role of mitigation when federal entitled to substantial deference by the courts. Andrus v. Sierra Club, 442 U.S. 347, 358 (1979). " 46 Fed.Reg. 18,026 (March 23, 1981). The lower courts have divided over the weight to give this guidance. Compare Davis v. Mineta, 302 F.3d 1104, 1125 n.17 (10th Cir. 2002) (Forty Questions are “persua- sive authority”), with Deukmejian v. NRC, 751 F.2d 1287, 1302 n.77 (D.C. Cir. 1984) (Forty Questions not persuasive authority, though significant for light cast on CEQ’s interpretation of its own regulations). “ This situation of using a mitigated FONSI to avoid an EIS must be distinguished from adding mitigation measures to a FONSI that otherwise concluded that the significance threshold would not be crossed by a project. See Forty Most Asked Questions, Answer 39, 46 Fed.Reg. 18,037. Such a situation does not describe the Longhorn Pipeline project. Even as agencies continue to use mitigated FONSIs to avoid EISs, CEQ does not know how to handle the matter under NEPA. See, e.g., The NEPA Task Force Report to the Council on Environmental Quality, Modernizing NEPA Implementation (Sept. 2003). 11 agencies decide not to prepare irapact statements.” Daniel R. Mandelker, NEPA LAW AND LITIGATION, § 8.08(10] (2d ed. 1995) Yet, federal agency administration of NEPA has evolved dramatically over the years, to the point where this “widely employed backdoor mechanism” threatens to overwhelm the commonly held view that NEPA’s procedures result in comprehensive EISs when a project involving major federal action — as the Longhorn Pipeline project concededly does” ~ threatens to significantly affect the quality of the human environment. See B. Karkkainen, Toward a Smarter NEPA: Monitoring and Managing Government’s Environmental Performance, 102 COLUM. L. REV. 903, 908, 919 & nn.73, 74 (2002) (noting that “the number of EISs produced annually has declined steadily over the years despite growth in both the scale and scope of federal activity, while the number of EAs and FONSIs has soared”). This quiet transformation of NEPA has major implica- tions for enforcement of the nation’s environmental laws. NEPA is widely regarded as the nation’s prime environ- mental statute, variously described as “the most admired” environmental statute’ and the “centerpiece of U.S. environmental! law.” But the only rights this bellwether % The agencies conceded what was at least implicit in the March 1999 settlement agreement: that the Longhorn Pipeline project triggered “major federal action” within the meaning of NEPA. “DOT is required to approve facilities response plans for such pipelines pursu- ant to the Oil Pollution Act, a mandatory approval that we agree constitutes an action under NEPA.” App. 190a. “ M. Blumm, A Primer on Environmental Law and Some Direc- tions for the Future, 1). VA. ENVTL. L.J. 381, 382 (1992). “ W. Rogers, The Most Creative Moments in the History of Envi- ronmental Law: “The Whats,” 2000 U. ILL. L. REv. 1, 31 (2000). 12 environmental law gives those in the shoes of Austin and the Collins petitioners are procedural ones: “NEPA itself does not mandate particular results, but simply prescribes the necessary process.” Methow Valley, 490 U.S. at 350; see also Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 737 (1998) (NEPA “simply guarantees a particular procedure, not a particular result”). Since private rights under perhaps the nation’s pre- miere environmental statute are only procedural, a deter- mination of the standards that are to govern a key bureaucratic mechanism in the NEPA machinery is vitally important to administration of the nation’s environmental laws. This case provides the Court an appropriate vehicle to provide such crucial guidance. Here, there is a project that concededly implicates major federal action. And the federal agencies agree it would have triggered an EIS but for one factor: the use of a mitigated FONSI dependent on pri- vately-negotiated agreements between the federal govern- ment and the very entity whose project is under scrutiny. I. The extra-legal bureaucratic pressures for mitigated FONSIs have not so overwhelmed NEPA’s statutory and regulatory procedures that the poiicymaking weighing of risks and benefits that is reserved for the end of the EIS process may be substituted for fact-based de- terminations of “significance” at the EA phase. The lead agencies were able to lower their estimations of the Longhorn project’s impacts to below the “signifi- cance” threshold through one key and overriding conclu- sion: that the pipeline’s projected future risks to the public and the environment were not so great as to be deemed NEPA-significant. However, this approach confuses the 13 policy decision that is to be made after a full EIS with the factual and technical decision that is to be made during the EA phase. NEPA is an accountability statute for environmental policy. The EIS phase of the NEPA process, which culmi- nates in an agency Record of Decision (ROD), arises directly from NEPA’s text: federal agencies “to the fullest extent possible ... shall” prepare an EIS for “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C) (emphasis added). Adhering to this statutory command, though, does not dictate an agency's choice about what will happen once the environmental study is completed. So long as the EIS fully and fairly evaluates the environmental impacts of a project, an agency “is not constrained by NEPA from deciding that other values outweigh the environmental costs.” Methow Valley, 490 U.S. at 350. That is, NEPA establishes a process that requires attention to environ- mental issues but leaves an agency free at the end to make a policy choice that reveals how it balances environmental issues with other concerns and values. That policy choice is made in the ROD, at the end of the statute-based EIS process. | The EA, on the other hand, is an invention embodied in the binding CEQ regulations that allows federal agen- cies the necessary breathing space to evaluate whether a given factual situation involving federal action actually triggers NEPA’s statutory requirement of full environ- mental study. In the NEPA order of things, first comes the EA, then comes either the FONSI or the EIS (which, in turn, is followed by a ROD). 14 The EA phase of the NEPA process is focused on the question of “significance.” A finding of “significance” triggers an EIS; a finding of no significance ends the NEPA inquiry. With narrow exceptions, the “significance” inquiry “involves primarily issues of fact.” Marsh, 490 U.S. at 377. It is this fact-based nature of significance that provides the rationale for the judicially deferential stan- dard that only “arbitrary and capricious” agency determi- nations are subject to invalidation. Id. In their below-the-judicial-radar-screen creation of the NEPA hybrid known as the “mitigated FONSI,” and use of it to avoid full EISs for projects that otherwise would require them, federal agencies have forced elements of the policy-based ROD into the fact-based “significance” deter- mination. Were this amalgamation accomplished under law, through statutory amendment or regulatory revision, the tensions created in the NEPA process might be ad- dressed and resolved. But, the “mitigated FONSI” move- ment has been extra-legal. That means that individual cases are the only way to relieve the unnecessary stresses caused by trying to force policy decisions into technical, fact-based pigeonholes. In the case of the Longhorn Pipeline project, the agencies only exacerbated those already unnecessary stresses, and, in doing so, violated NEPA. The NEPA decision on the pipeline project was treated all along by the government’s chief NEPA policy arm as a policy deci- sion. CEQ wanted a negotiated, mitigated FONSI. EPA and DOT fell into open disagreement in the latter stages of the EA process about whether to stop at a FONSI or move to an EIS. Knowing and acknowledging that they con- fronted an obvious policy decision, the lead agencies 15 turned to CEQ to tell them the executive branch's envi- ronmental policy as it affected the pipeline. In the end, the final Longhorn EA equates the “overall risk” from the pipeline to “societal risk.” Final EA, 9-34. Then, the FONSI, resting on the EA, confronts the “quali- tative decision” the agencies must make about the level of “risk” associated with the mitigated pipeline. App. 84a. Ultimately, the FONSI for the Longhorn Pipeline project rests on the agencies’ conclusion that the future risks to the public and the environment — greater than a 15% chance of something bad happening during the project's projected life — are outweighed by the projected benefits of Longhorn’s bringing gasoline to isolated markets. This conclusion flies in the face of CEQ guidance, not necessarily because it is factually wrong,” but because it occurs at the wrong time in the wrong place. CEQ already has assigned the weighing of risks and benefits to the EIS phase, not the EA phase: The [CEQ] believes that the weighing of risks and benefits for the particular federal proposal at hand is properly done after completion of the entire NEPA process, and is reflected in the Re- cord of Decision. 51 Fed.Reg. 15,621 (April 25, 1986) (emphasis added).” “ It is, though, and the projected environmental impacts of the pipeline are significant by any reasonable measure. See below at 19 (arguing that government’s own predicted level of residual risk rises to legal “significance”). This is not merely a wayward observation by CEQ. It came with the promulgation of a revision to CEQ Regulation § 1502.22(b), reconsidering the much-debated role of the “worst case scenario” in (Continued on following page) 16 The Fifth Circuit misunderstood this argument and relegated the discussion of it to a footnote. App. 17a n.5. Contrary to the suggestion there, Austin and the Collins petitioners do not argue that only cold, hard facts, un- touched by agency judgment calls of any sort, can inform the EA-phase significance decision. That is not what happened in the mitigated FONSI for the Longhorn pipeline. ‘e Instead, the agencies arrived at an uncertain estima- tion of risk — a greater than 15% threat of meaningful environmental and human harm - and concluded that such a level of risk was not sufficient to stop the Longhorn project from going forward as the owner desired. Austin and the Collins petitioners very well might be required to accept the accuracy of the estimated 15.3% risk under the arbitrary and capricious standard of judicial review, but that does not transform it into something other than an uncertain prediction about human and environmental impacts.” It does not follow, as the Fifth Circuit reasoned, that the conclusion the lead agencies drew from that estimation is nothing but a judgment call about signifi- cance. There is no special agency expertise involved in the decision about whether a 15% or greater risk of harmful impacts is enough to require more environmental study. It NEPA analysis and replacing it with a procedural mechanism designed to force uncertainty issues to the forefront of EISs. * Those challenging the pipeline vigorously contested the data and methodology leading to this estimate during the administrative proceedings. Issues from those disputes, however, are not being brought before the Court. ie 17 sets a dangerous precedent to allow uncertain statistical estimates based on inadequate data at the EA phase to be used to evade the full study procedurally mandated in an EIS. It is even more dangerous when, as here, the shaky estimates are undergirded by transparently flimsy data. Inadequate data at the EIS phase is sometimes unavoid- able. But, at the EA phase, inadequate data can only mean that an EIS is called for. Otherwise, NEPA’s EIS require- ment is threatened with obsolescence and the entire NEPA structure is called into question. Here, the decision is purely a policy call, separate from the NEPA concept of significance. Everything about the Longhorn NEPA process says this is so: the lead agencies’ cry for policy direction;-the front- and back-end policy direction given by CEQ; and the private negotia- tions between the agencies and Longhorn over how much the final mitigation plan would need to contain in order to let the project move into operation. In effect, the government treated the hybrid EA/ mitigated FONSI for Longhorn as the functional equiva- lent of an EIS/ROD. They even argued that is what hap- pened, convincing the Fifth Circuit on this point. App. 18a n.6. Generalizing from that point, though, reveals its legal flaw. If extra-legal hybrid mitigated FONSIs are accepted as the functional equivalents of statute- and regulation- based EISs and RODs, the only rights afforded NEPA plaintiffs - which are purely procedural — are effectively obliterated. NEPA procedure would become whatever the . bureaucratic “flavor of the month” says it is, not what the statute and regulations establish. The Court should act in this case to correct this bureaucratic drift away from the law of NEPA. 18 II. The Court should act to resolve the conflict between the Second and Fifth Circuits on the standard to be used for evaluating significance determinations at the EA phase in the era of mitigated FONSIs. The NEPA statute and the CEQ regulations do not recognize the concept of mitigated FONSIs that drove the Longhorn process, and which increasingly drives all the government’s NEPA machinery. In fact, the only extant guidance, found in CEQ’s 1986 Forty Questions, rejects the concept. At the same time, “[t]he courts usually decide these cases on an ad hoc basis with no attempt to provide criteria under which the environmental significance of a federal action can be measured.”' D. Mandelker, NEPA LAW AND LITIGATION § 8.08[3] (2d ed. 1995). In other words, the government is using a legally rudderless approach to enforcement of what many consider its pre- miere environmental law. The lower courts have divided on the standard agen- cies are to follow in deciding whether to stop at a FONSI or move to the EIS phase. In this case, the Fifth Circuit determined to evaluate mitigated FONSIs under the arbitrary and capricious standard. App. 17a. It expressly rejected the Second Circuit’s “close call” standard de- scribed in another mitigated FONSI case, National Audu- bon Soc’y v. Hoffman, 132 F.3d 7, 13 (2d Cir. 1997) (“[w]hen the determination that a significant impact will or will not result from the proposed action is a close call, an EIS should be prepared”). See App. 17a n.4. The Fifth Circuit described the Second Circuit’s rule as in “seeming conflict” with the arbitrary and capricious standard holding sway in the Fifth Circuit. Id. eS eee eee 19 This actual conflict between the Fifth and Second Circuits is of critical importance in interpreting NEPA law, and guidance from the Court on this important issue is sorely needed, not simply to aid the lower courts in their review of NEPA decisions coming up from the agencies. It also is needed to aid the agencies themselves. The Long- horn dispute highlights that need. The two lead agencies themselves could not agree on how to evaluate the facts and resorted to policy guidance from CEQ. CEQ could only direct the outcome; it could not provide legal advice on the standard to be applied by the agencies. The reason, of course, is that the only existing legal guidance says that mitigated FONSIs are not accept- able substitutes for EJSs and RODs when a project’s impacts otherwise cross the significance threshold — as the Longhorn project is conceded by EPA and DOT to have done. By any common sense measure, the admission of a 15% to 20% estimate of “residual” risk from the Longhorn line’s operation crosses the significance barrier. The reality in this case is that the agencies had to have actually viewed the level of mitigation attached to the Longhorn line as insufficient to lower the threat to insignificance. Several times, they proposed additional mitigation meas- ures to Longhorn but were rebuffed. That can only mean that: (i) given the predetermined result that there would be no EIS, the lead agencies took what they could get; and (ii) the agencies really viewed the additional proposed measures that Longhorn rejected as necessary to the achievement of “insignificance.” 20 The legally uncertain state of the role to be played by mitigated FONSIs in the NEPA process needs the Court’s - attention. This case provides the appropriate vehicle. a CONCLUSION The petition for writ of certiorari should be granted. Respectfully submitted, CONNIE ODE RENEA HIckKs* P. O. Box 1574 LAW OFFICE OF El] Prado, New Mexico 87529 MAX RENEA HICKS (505) 758-2203 800 Norwood Tower 114 West 7th Street Austin, Texas 78701 (512) 480-8231 DAVID ALLAN SMITH City Attorney, City of Austin 114 West 7th Street, Suite 500 R. JAMES GEORGE, JR. Austin, Texas 78701 BEN J. CUNNINGHAM, (512) 974-2166 Of Counsel GEORGE & BROTHERS, L.L.P. Attorneys for Petitioner City of Auctin 1100 Norwood Tower 114 West 7th Street Austin, Texas 78701 (512) 495-1400 Attorneys for Petitioners Marian Collins, Barton Springs-Edwards Aquifer Conservation District, and David Robertson *Counsel of Record for Petitioners sie. a 2 2 btm ime STN wt PsN aad co s é Pe eat ee Pere = F 4 | g la IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 02-50956 ETHEL SPILLER; ET AL., Plaintiffs, MARIAN COLLINS; BARTON SPRINGS/EDWARDS AQUIFER CONSERVATION DISTRICT; DAVID ROBERTSON, Plaintiffs-Appellants, CITY OF AUSTIN, Intervenor Plaintiff-Appellant, versus THOMAS E. WHITE, Etc.; ET AL., Defendants, THOMAS E. WHITE, in his official capacity as Acting Secretary of the Department of the Army; NORMAN Y. MINETA, SECRETARY, DEPARTMENT OF TRANSPORTATION; CHRISTINE T. WHITMAN, ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; UNITED STATES OF AMERICA, Defendants-Appellees, LONGHORN PARTNERS PIPELINE LP, Defendant-Appellee. 2a Appeal from the United States District Court for the Western District of Texas (Filed December 12, 2003) — Before JOLLY, SMITH and EMILIO M. GARZA, Circuit Judges. E. GRADY JOLLY, Circuit Judge: Before this court is the joint decision of two govern- ment agencies not to conduct a full-scale environmental impact study of the environmental effects of a proposal to use a pre-existing pipeline to transport gasoline and other petroleum products across the state of Texas. The govern- ment agencies did perform an initial environmental assessment but declined to engage in any furtaer studies after concluding that the environmental impact of the proposed use of the pipeline would not be signi“icant. The petitioners consist of a variety of Texas cities and govern- mental entities strongly opposed to the proposed use of this particular pipeline. They urged the district court — and they now urge this court — to order the government agencies to proceed with a full-fledged environmental impact study, contending that the agencies’ finding of no significant environmental impact was arbitrary and capricious and contrary to law. The district court upheld the conclusion of the government agencies. We affirm. 3a I. Background A. Statutory Background This case arises under the network of the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321-4370d, “a statute drafted to ensure that federal agencies ‘carefully consider detailed information concern- ing significant environmental impacts,’ and at the same time ‘guarantee that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision.’” Sabine River Authority v. U.S. Dept. of Interior, 951 F.2d 669, 676 (5th Cir. 1993) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989)). In essence, the NEPA framework re- quires federal agencies to prepare a detailed Environ- mental Impact Statement (“EIS”) for all “major federal actions significantly [affecting] the quality of the human environment.” 42 U.S.C. § 4332(C). The threshold determination of whether the effect of the proposed action is sufficiently “significant” to necessi- tate the production of an EIS is made by the preparation of an Environmental Assessment (“EA”). Sabine River, 951 F.2d at 677. The EA is a “concise” document that “briefly” discusses the relevant issues and either reaches a conclu- sion that preparation of an EIS is necessary or concludes with a “Finding of No Significant Impact” (“FONSI”). Id. An EA is conducted to “provide sufficient evidence and analysis for determining whether to prepare an [EIS].” 40 C.F.R. § 1508.9(a)(1). “The EA is a rough-cut, low-budget environmental impact statement designed to show whether a full-fledged environmental impact statement — which is very costly and time-consuming to prepare and has been the kiss of death to many a federal project — is 4a necessary.” Sabine River, 951 F.2d at 677 (internal quota- tions and citations removed). Thus, the ultimate purpose of the EA is to lead to one of two findings: “either that the project requires the preparation of an EIS to detail its environmental impact, or that the project will have no significant impact .. . necessitating no further study of the environmental consequences which would ordinarily be explored through an EIS.” Jd. If the former is found, then the agency must proceed with a full blown EIS; if the latter is found, the agency issues a FONSI and has no further obligations under NEPA. Jd. Notably, the NEPA statutory framework provides no substantive guarantees; it prescribes adherence to a particular process, not the production of a particular result. Robertson, 490 U.S. at 350. NEPA “is a procedural statute that demands that the decision to go forward with a federal project which significantly affects the environ- ment be an environmentally conscious one.” Sabine River, 951 F.2d at 676. The statute “does not command the agency to favor an environmentally preferable course of action, only that it make its decision to proceed with the action after taking a ‘hard look at environmental conse- quences.’” Jd. (quoting Robertson, 490 U.S. at 350). In- deed, “NEPA does not prohibit the undertaking of federal projects patently destructive of the environment; it simply mandates that the agency gather, study, and disseminate information concerning the projects’ environmental conse- quences.” Jd. Thus, while “[o]ther statutes may impose substantive environmental obligations on federal agencies, . NEPA merely prohibits uninformed — rather than unwise — agency action.” Jd. " ees ee Se es Pa ee Te es 5a B. Factual and Procedural History This case concerns a pipeline that runs across the state of Texas between Houston and El Paso. Along its way, the pipeline passes through the City of Austin and across several rivers, streams and wetlands. In addition, it lies atop several aquifers and aquifer recharge zones. Exxon Pipeline Company originally constructed the pipeline between 1949 and 1950 and used it to transport crude oil until 1995. In 1997, Exxon sold the pipeline to Longhorn Partners Pipeline, L.P. (“Longhorn”), a Delaware limited liability partnership headquartered in Dallas, Texas. Longhorn purchased the pipeline intending to use it to transport gasoline and other petroleum products from Gulf Coast refineries to E] Paso and then, perhaps, on to other states. The pipeline will eventually move approxi- mately 225,000 barrels of gasoline per day across its lines. On April 22, 1998, Mariane [sic] Collins, the Barton Springs-Edwards Aquifer Conservation District, and David Robertson filed a challenge to the proposed pipeline under NEPA.’ In their original complaint, the plaintiffs sought injunctive relief, claiming that NEPA obligated the federal government to perform a full-fledged review of the environmental impact of the proposed use of the Longhorn ' The Collins plaintiffs all claim to be potentially affected by the proposed use of the pipeline. Marian Collins is a rancher in Kimble County, Texas and claims she is totally dependent on water drawn from the Edwards-Trinity Plateau Aquifer which is allegedly threatened by this pipeline. David Robertson lives in Hayes County and claims to rely on well-water drawn from this same aquifer. The Barton Springs- Edwards Aquifer Conservation District is a political subdivision charged with the protection of the Barton Springs segment of the Edwards Aquifer. 6a Pipeline. The suit was brought against Longhorn, the United States, the United States Department of Transpor- tation (“DOT”), the Department of the Army, and the Environmental Protection Agency (“EPA”). Shortly there- after, the City of Austin was allowed to intervene as the pipeline itself runs through the city. After some initial negotiations, Longhorn and the government defendants entered into a settlement stipula- tion with the Collins plaintiffs and the City of Austin (collectively referred to hereafter as “the Collins plain- tiffs”). Under this settlement, the EPA and the DOT (hereafter referred to as the “Lead Agencies”) agreed to prepare an EA of the pipeline. The parties agreed that this EA would culminate in a FONSI or a notice of intent to prepare an EIS. Upon acceptance of the settlement stipu- lation, the district court issued an Agreed Order enjoining Longhorn from placing petroleum products in the pipeline until thirty days after the EA had been completed. The Agreed Order also specified that if the Lead Agencies issued a FONSI, the Collins plaintiffs could apply to the court to extend the injunction on the basis that the FONSI was arbitrary and capricious or otherwise in violation of the law under the Administrative Procedures Act (“APA”), 5 U.S.C. § 706. In accordance with the settlement stipulation, the Lead Agencies prepared an EA. On October 28, 1999, the Lead Agencies issued the draft EA and a preliminary FONSI for public review and comment (in accordance with 40 C.F.R. § 1506.6). The preliminary FONSI was a so-called “mitigated FONSI” which means that its issuance was predicated on Longhorn’s engaging or agreeing to engage in certain mitigation measures. These measures were de- signed to address the potentially significant environmental a | —— a 7a impacts of the pipeline and reduce the risks of them occurring to a level where they were deemed insignificant by the Lead Agencies. The Lead Agencies then held public hearings on the draft EA and the preliminary FONSI in Austin, Houston, Fredricksburg, Bastrop and El Paso and distributed hundreds of copies of the EA and FONSI in counties along the pipeline. Following these hearings, the submission of several thousand written comments on them, and after further deliberation, on November 3, 2000, the EPA and DOT issued a FONSI along with the final EA. On February 5, 2001, the District Court granted the Collins plaintiffs leave to amend their initial complaints. In their amended complaint, the Collins plaintiffs con- tended that (1) the Lead Agencies’ decision to issue a FONSI instead of preparing an EIS was contrary to NEPA and was arbitrary and capricious in violation of the APA, and (2) the Lead Agencies and Longhorn breached the settlement agreement. In response, Longhorn and the Lead Agencies claimed that the decision to issue a FONSI was not arbitrary and capricious and that they had com- plied with the settlement agreement. All parties filed summary judgment motions on June 10, 2002. On July 19, 2002, the district court granted summary judgment in favor of Longhorn and the Lead Agencies. It found that the Lead Agencies’ decision to issue a FONSI and not prepare an EIS was not arbitrary and capricious nor was it in any other way unlawful or in violation of NEPA. Specifically, it found that the Lead Agencies had taken the requisite “hard look” at the environmental impact of the Longhorn Pipeline and had reasonably determined that the impact would not be significant. In addition, it found that Longhorn had not breached the settlement agreement. 8a On August 20, 2002, the Collins plaintiffs filed a timely notice of appeal to this Court. In this appeal, the Collins plaintiffs take issue with the district court’s finding that the Lead Agencies’ decision to issue a FONSI and not to prepare an EIS was not arbitrary and capri- cious or otherwise in violation of the law. They urge this Court to reverse this finding, remanding with instructions that the district court remand the proceeding to the Lead Agencies for preparation of an EIS, or alternatively, for reconsideration of the FONSI in response to a judicial determination that it was issued in violation of NEPA.” II. Standard of Review Because NEPA dictates no particular substantive result, an agency decision not to conduct_an EIS based on a FONSI is reviewable only on procedural grounds. A party objecting to such a decision brings such a challenge under the APA, 5 U.S.C. § 706(2)(A). Such parties face a high bar to success, however, as NEPA-related decisions are accorded a considerable degree of deference. The Supreme Court has held that in reviewing agency deci- sions involving alleged NEPA violations, courts are to uphold the agency’s decision unless the decision is “arbi- trary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 375 n.21 (1989) (quoting 5 U.S.C. § 706(2)(A)). Under this “highly deferential” standard, a * The Collins plaintiffs do not appeal the district court’s grant of summary judgment on their claim that Longhorn breached its settle- ment agreement. Thus, the sole issue before us on appe. ‘* the validity of the Lead Agencies’ decision not to conduct an EIS. 9a reviewing court has the “least latitude in finding grounds for reversal” of an agency decision and “may not substitute its judgment for that of the agency.” Sabine River, 951 F.2d at 676 (internal quotations and citations omitted). Thus, with respect to this case, our deferential role as a review- ing court is limited to ensuring that the Lead Agencies took a “hard look” at the environmental consequences; we cannot interject ourselves within the area of discretion of the agencies as to the ultimate choice of the action to be taken. Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21 (1976). In doing so, we evaluate the record de novo. We undertake the same task as the district court, reviewing the materials submitted there and determining whether the agency’s conclusions were arbitrary and capricious or contrary to law. Sabine River, 951 F.2d at 679. III. Discussion Before examining the Collins plaintiffs’ arguments in detail, we should first note how exceedingly thorough and comprehensive the instant environmental assessment prepared by the Lead Agencies appears to be. The law only requires that an EA be a “rough-cut,” “low-budget,” pre- liminary look at the environmental impact of a proposed project. Sabine River, 951 F.2d at 677. This EA, however, is anything but rough-cut or low-budget. One and a half years in the making, it consists of four lengthy volumes numbering over 2,400 pages. It incorporates not only the analysis of agency personnel but also studies from inde- pendent experts in pipeline operations and safety, endan- gered species, hydrology, geology, lake and stream modeling, chemistry, risk analysis, and emergency re- sponse planning and implementation. It also incorporates the Lead Agencies’ review of over 6,000 written comments 10a and numerous oral comments from six separate public meetings held throughout potentially affected areas in the state of Texas. Its issuance was predicated on Longhorn’s agreeing to employ and maintain a variety of mitigation measures designed to lower the degree of identified risk of impact to acceptable levels. Indeed, in many ways, this EA is more akin to a full-blown EIS; it is unclear exactly what more the Lead Agencies could have done to evaluate the significance of this pipeline’s impact. We should also note that we find nothing objectionable about the fact that the issuance of the FONSI was predi- cated on Longhorn agreeing to certain mitigation meas- ures. This Court has never explicitly upheld the issuance of a so-called “mitigated FONSI.” This situation occurs when an agency or an involved third party agrees to employ certain mitigation measures that will lower the otherwise significant impacts of an activity on the envi- ronment to a level of insignificance. In this way, a FONSI could be issued for an activity that otherwise would require the preparation of a full-blown EIS. Other circuits have endorsed such a practice. For example, in Cabinet Mountains Wilderness v. Peterson, 685 F.2d 678 (D.C. Cir. 1982), the District of Columbia Circuit Court of Appeals held that “if, however, a proposal is modified prior to implementation by adding specific mitigation measures which completely compensate for any possible adverse environmental impacts stemming from the original pro- posal, the statutory threshold of significant environmental effects is not crossed and an EIS is not required.” Other circuits have concurred with this result. See, e.g., CA.R.E. Now, Inc. v. FAA, 844 F.2d 1569 (11th Cir. 1988); Green- peace Action v. Franklin, 14 F.3d 1324 (9th Cir. 1992); Roanoke River Basin Ass’n v. Hudson, 940 F.2d 58 (4th Cir. lla 1991); Audubon Soc’y of Cent. Arkansas v. Dailey, 977 F.2d 428 (8th Cir. 1992). While we have never explicitly upheld the use of a mitigated FONSI, we have implicitly endorsed their use in Sierra Club v. Espy, 38 F.3d 792, 803 (5th Cir. 1994) (holding that EAs satisfied NEPA where they considered appropriate alternatives, including mitigation measures), and Louisiana v. Lee, 758 F.2d 1081, 1083 (5th Cir. 1985) (holding that it was proper to consider restric- tions placed on dredging permits in reviewing the agency’s decision not to file an EIS and citing Cabinet Mountains, 685 F.2d at 682). Accordingly, we find no basis for objecting to the mitigated nature of FONSI issued here. This is particularly true given the fact that the original settle- ment agreement between the parties specifically endorsed the use of a mitigated FONSI. Despite its comprehensive nature, the Collins plain- tiffs take issue with the conducted EA and issued FONSI on three basic grounds. First, they contend that the Lead Agencies’ assessment of the environmental impact of the pipeline was conducted in bad faith — that a political decision to issue a FONSI had been made beforehand and the entire process was specifically tailored to produce this result. Second, they assert that the Lead Agencies did not follow the guidelines set out by relevant NEPA regula- tions; specifically, they argue that the Lead Agencies failed to consider and evaluate all the requisite factors stipulated by these regulations. Finally, the Collins plaintiffs assert that even assuming a sufficiently comprehensive “hard look” was taken, the Lead Agencies’ findings were arbi- trary and capricious since a clear and rational examina- tion of the record indicates that the Longhorn Pipeline would have a significant effect on the environment. The a 12a Collins plaintiffs made all three of these arguments to the district court, which rejected them. We do so as well. As to their first contention, the Collins plaintiffs essentially assert that the EA prepared here was a sham — contrived reports specifically tailored to rationalize a result that had already been predetermined. They assert that the decision to not prepare an EIS was a political decision made in advance by the Council on Environ- mental Quality (“CEQ”) — an executive branch political organization — and forced on the Lead Agencies. Conse- quently, they argue that there was never any good faith attempt to take the required “hard look” at any potentially significant environmental effects the proposed action would have. Instead, the EA that ultimately issued was a foregone conclusion, whatever may have been the actual level of the significance of the pipeline’s impacts. We find no merit to -his argument. Although it is true that agencies are expected to engage in good faith fact- finding, when their findings are challenged as arbitrary and capricious, the agencies’ actions are judged in accor- dance with their stated reasons. See, e.g., In re: Comptrol- ler of the Currency, 156 F.3d 1279 (D.C. Cir. 1998). Thus, the “actual subjective motivation of agency decisionmakers is immaterial as a matter of law — unless there is a show- ing of bad faith or improper behavior.” Id. at 1279-80. There is no evidence here that the Lead Agencies acted improperly or in bad faith. The assessment they prepared was noteworthy for its exhaustive and extensive nature. Even more detrimental to the Collins plaintiffs’ argument is that there is no evidence of a causal link between the Lead Agencies’ decision to issue a FONSI and the alleged political machinations; the record suggests that the CEQ’s involvement did not come until after the Lead Agencies 13a had made the initial decision not to prepare an EIS. Accordingly, there is no reason to overturn the Lead Agencies’ decision on these grounds. As to the second contention, the Collins plaintiffs accurately note that in taking a “hard look” at whether a proposed activity’s impact will be significant, the relevant regulations instruct the Lead Agencies to consider both the “context” and the “intensity” of the impacts. 40 C.F.R. § 1508.27. According to these regulations, consideratica of context means that “the significance of an action must be analyzed in several contexts such as society as a whole (human, national), the affected region, the affected inter- ests, and the locality.” 40 C.F.R. § 1508.27(a). Intensity is defined as “the severity of impact.” 40 C.F.R. § 1508(b). The regulation then goes on to provide ten areas agencies should consider in evaluating “intensity.” See id.’ The * The ten listed factors are: (1) Impacts that may be both beneficial and adverse. A significant effect may exist even if the Federal agency be- lieves that on balance the effect will be beneficial. (2) The degree to which the proposed action affects public health or safety. (3) Unique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecol- ogically critical areas. (4) The degree to which the effects on the quality of the human environment are likely to be highly controversial. (5) The degree to which the possible effects on the human environment are highly uncertain or involve unique or un- known risks. (6) The degree to which the action may establish a preee- dent for future actions with significant effects or represents a decision in principle about a future consideration. (Continued on following page) l4a Collins plaintiffs contend that while the Lead Agencies’ EA report accurately lists all ten factors as being components of their assessment, their failure to specifically address each of them separately and directly in this report requires reversal. We do not think, however, that the Lead Agencies’ decision should be overturned on such formalistic grounds. Notably, the factors listed in the regulation do not appear to be categorical rules that determine by themselves whether an impact is significant. Instead, they are simply a list of relevant factors that should be considered in gauging whether an impact is “intense” and, therefore, significant. As such, all that would have to be shown is that all the factors were in some way addressed and evaluated; whether this was done in factor-by-factor fashion is irrelevant. We think that the record clearly indicates that each of these factors received adequate attention and evaluation in the (7) Whether the action is related to other actions with in- dividually insignificant but cumulatively significant im- pacts. Significance exists if it is reasonable to anticipate a cumulatively significant impac: on the environment. Sig- nificance cannot be avoided by terming an action temporary or by breaking it down into small component parts. (8) The degree to which the action may adversely affect districts, sites, highways, structures, or objects listed in or eligible for listing in the National Register of Historic Places or may cause loss or destruction of significant scientific, cul- tural, or historical resources. (9) The degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Spe- cies Act of 1973. (10) Whether the action threatens a violation of Federal, State, or local law or requirements imposed for the protec- tion of the environment. 154 Lead Agencies’ decision-making process. Accordingly, we find no merit to this argument. The Collins plaintiffs finally assert that, even assum- ing a comprehensive “hard look” was taken, the conclusion that the impact of the Longhorn Pipeline was not signifi- cant was still arbitrary and capricious since the Lead Agencies’ conclusion was both grossly unsupported by the facts found and premised on bad science and/or inaccurate information. They argue that any reasonable consideration of the ten requisite factors would have led a rational decision-maker to conclude that the environmental impact of the Longhorn Pipeline would be significant. According to them, the EA report, the FONSI, and its underlying studies and findings are “unduly optimistic,” “confusing,” “unreasonable” and “defy common sense.” To substantiate these allegetions, they offer the detailed testimony of five expert witnesses retained by them. We find no merit to this contention. The fact that the Collins plaintiffs or their experts take great issue with the factual findings and ultimate conclusions of the Lead Agencies does not render those findings and conclusions “arbitrary and capricious.” As we noted earlier, govern- ment agencies — and not the federal courts — are the entities NEPA entrusts with weighing evidence and reaching factual conclusions: Where conflicting evidence is before the agency, the agency and not the reviewing court has the discre- tion to accept or reject from the several sources of evidence. The agency may even rely on the opin- ions of its own experts, so long as the experts are qualified and express a reasonable opinion. Sabine River, 951 F.2d at 678. 16a Indeed, even if we were convinced that the Collins plaintiffs’ experts were more persuasive than those relied upon by the Lead Agencies, we would still be compelled to uphold the Lead Agencies’ finding so long as their experts were qualified and their opinions reasonable. Id.; Marsh, 490 U.S. at 378 (“[w]hen specialists express conflicting views, an agency must have the discretion to rely on the reasonable opinions of its own qualified experts, even ‘f, as an original matter, a court might find contrary views more persuasive.”). There is no evidence here that the Lead Agencies’ experts are unqualified, nor do their opinions seem unreasonable to us. The Collins plaintiffs’ experts point to a number of specific flaws they claim exist in the Lead Agencies’ fact-finding or conclusions. These include allegations that the Lead Agencies should have conducted more comprehensive studies than they chose to do, that they utilized inaccurate and misleading statistical meth- odology in analyzing the risks of pipeline leakage, that they ignored or finessed the implications of key findings by the Lead .igencies’ own experts in many instances, and that they inappropriately deferred to Longhorn for data and then relied uncritically upon it. Unsurprisingly, the Lead Agencies and Longhorn take issue with each of these assertions, answering each point-by-point in their briefs. After analyzing this back-and-.>rth between the parties, it _ seems clear that whatever the -erits of the Collins plain- tiffs’ arguments that the Lead Agencies’ decision-making process was less than perfect, it was not unreasonable. Instead, the dispute between the Ccllins plaintiffs and the defendants here is best classified as a classic battle of the experts, with each party asserting that their analysis is more reasonable than the other’s. Under the highly 17a deferential standard efforded to agencies pursuant to NEPA, however, it is not the job of the federal courts to intervene in this fight.‘ The agencies have made their decision. It was not arbitrary and capricious. We are thus obliged to defer to their expert judgment.” ‘ The Collins plaintiffs advance the argument that even if the environmental impact of the Longhorn Pipeline is not clearly signifi- cant, it is at least a close call and, as they claim, close calis are sup- posed to lead to an EIS. For this proposition of law, they rely on National Audubon Soc’y v. Hoffman, 132 F.3d 7, 13 (2d Cir. 1997) (“[wJhen the determination that a significant impact will or will not result from the proposed action is a close call, an EIS should be prepared.”). This Court, however, has never announced such a rule. Indeed, it would be difficult to do so, given the seeming conflict between such a rule and the highly deferential “arbitrary and capricious” standard set out in Sabine River. * We should note that our deference to the Lead Agencies fact- finding and conclusions includes deference to their judgment as to whether any particular environmental impact of the proposed pipeline rises to the level of significance. The Collins plaintiffs argue that under the NEPA framework, the determination of whether an impact is significant must be objective, factual and quantitative in nature and should not involve any subjective, qualitative “judgment calls.” They argue that the final EA issued here is inappropriately “larded” with such judgement calls, particularly on the subject of how much risk constitutes significant risk; it should therefore be overturned. The problem with this contention is that, as a practical matter, a determina- tion of significance cannot be a completely objective inquiry because the meaning of the term “significance” fer purposes of the NEPA statute is not clear on its face. Vieux Carre Property Owners Residents and Assoc’s, Inc. v. Pierce, 719 F.2d 1272, 1279 (5th Cir. 1983) (“There is no hard and fast definition of ‘significant’ effect.”). As such, determining whether significance exists inherently involves some sort of a subjective judgment call. Save Our Ten Acres v. Kreger, 472 F.2d 463, 467 n.7 (5th Cir. 1973) (significance is “in large part a judgment based on the circumstances of the proposed action.”). This must include judgment calls about how much risk equals significant risk, i.e., judgment calls about “acceptable risk.” This observation has been made by the Second (Continued on following page) 18a IV. Conclusion As we noted earlier, NEPA does not guarantee any substantive results; all it ensures is that a particular process will be followed. Herein lies the problem for the Collins plaintiffs. They really don’t want more process. Indeed, considering the extensive and comprehensive nature of the EA conducted here, it is unclear exactly what more process would invelve.° What they really desire is a Circuit in City of New York v. U.S. Dep't of Transp., 715 F.2d 732 (2d Cir. 1983). There, the court explicitly held that agencies have “latitude in determining whether the risk is sufficient to require the preparation of an EIS.” Jd. at 746 n.14. This holding is sound because the “concept of overall risk incorporates the significance of possible adverse conse- quences discounted by the improbability of their occurrence.” Id. at 738. That is not to say that any such judgment calls must be rubber- stamped by a reviewing court; they are still subject to the arbitrary and capricious standard of review. However, we do say that the simple fact that a judgment call was made is not enough to render the determina- tion of significance (or non-significance) invalid under NEPA. * The Lead Agencies and Longhorn have argued that requiring the preparation of an EIS here would be a waste of time and resources, given the fact that the EA prepared here contains all the functional elements of an EIS. We find this argument persuasive. In Vieux Carre Property Owners Residents and Assoc’s, Inc. v. Pierce, 719 F.2d 1272, 1282 (5th Cir. 1983), this court upheld the decision of an agency not to conduct an EIS where the “objectives reflected in the [f]inal [EA] and the procedures followed in its preparation were extremely thorough and resulted in a document much akin to a detailed environmental impact statement.” But see State of Louisiana v. Lee, 758 F.2d 1081 (5th Cir. 1985) (holding that an EA prepared by an agency in that case was not the functional equivalent of an EIS). Like the EA in Vieux Carre, the EA here has all the hallmarks of an EIS: there were public hearings and costly, extensive, and comprehensive environmental studies which produced reams of material data and resulted in 2,400 pages of analysis. Accordingly, it is unclear whether the time and expense required to prepare an EIS after an EA will result in any incremental benefits. Forcing the Lead Agencies to prepare an EIS would likely be unnecessarily duplicative and a waste of resources. 19a substantive result: convinced that it poses a great threat to the health and safety of its citizens and the environ- ment in general, the Collins plaintiffs want this pipeline project killed. Unfortunately for their case, and whatever of the merits of that position, this outcome cannot be secured in this federal court proceeding. The Lead Agen- cies here have complied with the NEPA statute and its accompanying regulations in every way. They have con- ducted an exhaustive assessment of the environmental effects of this proposed pipeline and, after consideration, concluded that those effects were not significant. Whether we agree or disagree with that conclusion, we cannot call it arbitrary and capricious. Accordingly, we have no ability to disturb it. Therefore, the district court’s grant of sum- mary judgment in favor of the defendants is AFFIRMED in all respects. AFFIRMED. 20a IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION ETHEL SPILLER,' MARIAN COLLINS, BARTON SPRINGS- EDWARDS AQUIFER CONSERVATION DISTRICT, DAVID ROBERTSON, Plaintiffs, CITY OF AUSTIN, Plaintiff-Intervenor -VSs- Case No. ROBERT M. WALKER, in his A-98-CA-255-SS official capacity as Acting Secretary of the Department of the Army; et al., RODNEY SLATER, in his official capacity as Secretary of Transportation, CAROL A. BROWNER, in her official capacity as Administrator of the Environmental Protection Agency, UNITED STATES OF AMERICA, and LONGHORN PARTNERS PIPELINE, L.P., Defendants * Although Ethel Spiller has withdrawn as the plaintiff in this case, her name is listed in the caption to avoid confusion. 2la ORDER (Filed Jul. 19, 2002) BE IT REMEMBERED on the 12th day of July 2002 the Court called the above-styled cause for hearing on all pending matters, and the parties appeared by attorney of record. Before the Court are the Plaintiffs’ Motion for Summary Judgment [#295] and supplements thereto [# 307; 339], City of Austin’s Motion for Summary Judgment (# 299], Defendant Longhorn Partners Pipeline, L.P.’s Motion for Summary Judgment [#300], and Federal Defendants’ Motion for Summary Judgment [# 297]; Plaintiffs’ response [# 325], City of Austin’s response [# 317], Longhorn Partners Pipeline, L.P.’s response [# 319], and Federal Defendants’ response [# 314]. Also before the Court are the Plaintiffs’ Request for Preliminary Injunc- tion [# 323], City of Austin’s Request for Preliminary Injunctive Relief [# 308), Longhorn Partners Pipeline, L.P’s memoranda in opposition thereto [# 321, 335], Federal Defendants’ opposition thereto [# 340], and Plain- , tiffs’ reply [# 337]. Finally, the Court considers the Defen- dants’ motions to strike declarations filed by the Plaintiffs and the City of Austin in their summary judgment motions (# 311, 312, 315] and the Plaintiffs’ and City of Austin’s response thereto [# 331, 333]; as well as Longhorn Part- ners Pipeline, L.P.’s motion to strike documents filed by the City of Austin [# 320] and exhibits filed by the Plain- tiffs in their response to the summary judgment motions [(# 334]. Having considered the voluminous motions and responses, the case file as a whole, the four-volume Environmental Assessment, and the applicable law, the Court enters the following opinion and orders. 22a Factual and Procedural Background This case concerns a pipeline that runs across the state of Texas, cutting a jagged path through the 731 miles of cities, towns, farms and ranches between Houston and El Paso, crossing rivers, streams and wetlands in ten major river basins, and lying atop several aquifers and aquifer recharge zones. Exxon Pipeline Company (“Exxon”) con- structed the 18-to 20-inch diameter pipeline in 1949 and 1950 and transported crude oil through it from Crane to Houston until around 1995. During that time, the pipeline experienced approximately 173 spills and leaks. In 1997, Exxon sold the pipeline to Longhorn Partners Pipeline, L.P. (“Longhorn”), a Delaware limited liability partnership headquartered in Dallas. Longhorn purchased the pipeline in order to transport gasoline and other petroleum prod- ucts from Gulf Coast refineries to El Paso and on to Arizona, New Mexico and California. The pipeline will eventually move 225,000 barrels per day of gasoline from Houston to El] Paso and Odessa. On April 22, 1998, the Plaintiffs filed a challenge to the proposed Longhorn Pipeline Project (“the Pipeline”) in this Court under the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321-4370d. Plaintiffs Marian Collins and David Robertson own land along the Pipeline in Kimble County and Hays County. Plaintiff Barton Springs ~ Edwards Aquifer Conservation District is a political subdivision of the state of Texas that conserves and protects groundwater within Travis, Hays, Caldwell and Bastrop counties. In their original complaint, the Plaintiffs sought injunctive relief requiring the federal government to perform a full-fledged review under NEPA of the environmental consequences of the Pipeline. The plaintiffs sued Longhorn, the United States, the United States Department of \ 23a Transportation (“DOT”), the Department of the Army (‘Army”), and the Environmental Protection Agency (“EPA”)? The Court allowed the City of Austin (“City”) and Lower Colorado River Authority (“LCRA”) to intervene as plaintiffs because the Pipeline runs through the City and the LCRA manages a large portion of the water supply over which the Pipeline travels.’ NEPA requires federal agencies to analyze, “to the fullest extent possible,” the potential environmental impact of “major federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). When this case was young, Longhorn and the Federal Defendants argued the Pipeline is not a “major federal action” under NEPA because the Pipeline is pri- vately owned and operated. Five federal agencies — FERC, DOT, EPA, the Army, and the Army Corps of Engineers — therefore ‘refused to assume responsibility for conducting an environmental review under NEPA of the Pipeline. The parties clung to this position despite Longhorn’s plans to use the Pipeline to transport petroleum products to other states and perhaps Mexico; despite Longhorn’s need to obtain an easement over Army-owned Fort Bliss in El Paso County to complete the Pipeline; despite the Army Corps of Engineers’ authority over pipeline construction and modification affecting navigable waterways; and despite * The plaintiffs also originally named the Federal Energy Regula- tory Commission (“FERC”) as a defendant, but the Court dismissed FERC because it was only involved in ratemaking. * The Court dismissed the LCRA with prejudice pursuant to Rule 41 of the Federal Rules of Civil Procedure on March 5, 2002 after the LCRA entered into a settlement with the EPA, DOT, United States, and the Army (collectively, the “Federal Defendants”) in May 2001. - 24a the location of the Office of Pipeline Safety (“OPS”), which is charged with administering DOT regulations to ensure pipeline safety, within the DOT. Needless to say, this Court found the federal agencies’ conclusion that the Pipeline did not constitute a “major federal action” under NEPA not only arbitrary and capricious, but ridiculous, and on August 25, 1998, ordered the DOT and/or the EPA to conduct an environmental impact stetement concerning the Pipeline in accordance with NEPA. See Order of Aug. 25, 1998, at 33-34. The Court also enjoined Longhorn from placing petroleum products into the Pipeline until this Court, the Fifth Circuit, or the United States Supreme Court orders otherwise. See id., at 32. On March 1, 1999, the parties entered into a Settle- ment Stipulation, under which the EPA and DOT agreed to prepare an environmental assessment (“EA”) of the Pipeline. The EA would culminate in a Finding of No Significant Impact (““FONSI”)-or a notice of intent to prepare an Environmental Impact Statement (“EIS”). On March 5, 1999, the Court signed an Agreed Order vacating its previous injunction and enjoining Longhorn from placing petroleum products in the Pipeline until thirty (30) days after the agencies issued an EA decision, but not pri-r to Longhorn’s implementation of mitigation meas- ures upon which a FONSI might be conditioned and that are required to be implemented prior to or upon startup and the lead federal agency’s approval of those measures. See Agreed Order of Mar. 5, 1999. The Agreed Order stated if the agencies issued a FONSI, the Plaintiffs could apply to the Court within 30 days to extend the injunction on the basis that the FONSI is arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law 25a under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. See id. In accordence with the Settlement Stipulation, the EPA and DOT prepared an EA along with their third-party contractor URS Corporation (formerly Radian Interna- tional) (“Radian”). On Oc.ober 29, 1999, the agencies released the draft EA and preliminary FONSI for public review and comment. See 64 Fed. Reg. 58404. The agen- cies held public hearings on the draft EA and FONSI in Austin, Houston, Fredericksburg, Bastrop and El Paso, and distributed hundreds of copies of the EA and FONSI in counties along the pipeline. Id. In addition to oral comments at the hearing, the agencies received over 6,000 written comments, which they responded to as described in Volume 4 of the final EA. On July 17, 2000, the agencies wrote a letter to George T. Frampton, Jr., the Acting Chair of the White House Council on Environmental Quality (“CEQ”)’ informing Frampton they “have reached an impasse on how to conclude the NEPA process” due to a “difference of view” and asking for the CEQ’s recommenda- tion on whether to complete an EIS or issue a FONSI. Plaintiffs’ Motion for Summary Judgment, Ex. 10 (“Joint Letter”), at 1, 2. In the letter, the agencies disclosed the “Department of Justice has advised us that, on the present state of the record, it could defend either a FONSI or an EIS, and that the choice is a policy choice for our two agencies.” Id. at 2. The record strongly supports the * The CEQ promulgates regulations under NEPA that “tell federal agencies what they must do to comply with the procedures and achieve the goals of [NEPA].” 40 C.F.R. § 1500.1. The regulations are binding on federal agencies. ~ °6a ‘nference that the EPA supported preparation of an EIS, while the DOT preferred to issue a FONSI. On September 7, 2000, the CEQ handed down a response to the agencies’ request, recommending the agencies “now promptly finalize the EA and prepare a Finding of No Significant Impact.” Plaintiffs’ Motion for Summary Judgment, Ex. 14 (“Frampton Letter”), at 1. The CEQ concluded “virtually nothing could be gained in terms of useful environmental inforiation or analysis by ‘redo- ing’ this extensive document as an EIS, other than sheer delay.” Id at 3. On November 3, 2000, the EPA and DOT :ssued a FONSI along with the final EA. See Federal Defendants’ Notice of Filing Finding of No Significant Impact and Final Environmental Assessment [# 159], Att. A (“FONE”). On February 5, 2001, the Court entered an Order allowing Plaintiffs to amend their complaints and setting deadlines for Plaintiffs to file objections to Defendants’ privilege logs and to file motions to include additional documents in the administrative record. See Order of Feb. 5, 2001. In their secor.d amended complaint, Plaintiffs contend (1) the Federai Defendants’s decision to issue a FONSI instead of preparing an EIS was contrary to NEPA and its corresponding regulations and was arbitrary and capricious in violation of the APA; and (2) the Defendants breached the Settlement Agreement. See Second Amended Complaint [# 201], at {J 51-53. The City and LCRA also filed amended complaints. On March 25, 2002, after conducting an in camera review of nine volumes of documents the Federal Defen- dants withheld as privileged, the Court ordered the Federal Defendants to produce certain non-privileged 27a documents to the Plaintiffs and ordered the parties to file summary judgment motions. All parties filed summary judgment motions on June 10, 2002. The Plaintiffs and City argue the agencies’ decision to issue a FONSI instead of prepare an EIS was arbitrary and capricious and urge the Court to vacate the FONSI, require the EPA and DOT to prepare an EIS and issue a Record of Decision concern- ing the Pipeline, and enjoin Longhorn from placing refined petroleum products into the Pipeline until thirty days after the issuance of the Record of Decision or until further order of this Court, the Fifth Circuit, or the United States Supreme Court. Additionally, the Plaintiffs and City seek summary judgment on their claim that the Defendants breached the Settlement Agreement. The Federal Defen- dants and Longhorn contend the decision to issue a FONSI was not arbitrary and capricious, the agencies followed the NEPA process, and the Defendants complied with the Settlement Agreement. Over four years after the Plaintiffs originally filed their NEPA challenge to the Pipeline, the process has finally come to a conclusion. Analysis 3. Standard of Review under NEPA The Plaintiffs and City contend the agencies should have prepared an EIS discussing the significant environ- mental impacts of the Pipeline. Under NEPA, agencies must prepare a detailed EIS for “major Federal actions significantly affecting the quality of the human environ- ment.” 42 U.S.C. § 4332(C). Preparation of an EIS “en- sures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts, it also guarantees that the relevant information will be made 28a available to the larger audience that may also play a role in both the decisionmaking process and the implementa- tion of that decision.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 1845 (1989). Agencies are not required to prepare an EIS “for a non- major action or a major action which does not have a significant impact on the environment.” Sierra Club v. Hassell, 636 F.2d 1095, 1097 (5th Cir. Unit B 1981). Agen- cies may first prepare an EA to determine whether a _ project’s potential impacts on the environment are signifi- cant. 40 C.FR. § 1508.9 (EA serves to “provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact.”). After preparing an EA, an agency may issue a FONSI “if the agency determines on the basis of the environmental assessment not to prepare [an EIS].” 40 C.FR. § 1501.4(e). All parties agree NEPA provides a process only; it does not guarantee a result. Robertson, 490 U.S. at 350, 109 S.Ct. at 1846 (1989) (NEPA “does not mandate particular results, but simply prescribes the necessary process.”). Because NEPA offers only procedural requirements, not substantive environmental requirements, it “only prohib- its uninformed — rather than unwise — agency action.” Robertson, 490 U.S. at 351, 109 S.Ct. at 1846. Given the absence of substantive rights within the statute, the “only role for a court is to insure that the agency has taken a ‘hard look’ at environmental consequences, it cannot ‘ (1) Impacts that may be both beneficial and adverse. (2) The degree to which the proposed action affects public health or safety. (3) Unique characteristics of the geographic area such as proximity. to historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas. (4) The degree to which the effects on the quality of the human environment are likely to be highly controver- sial. (5) The degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks. (6) The degree to which the action may establish a precedent for future actions with significant effects or a decision in principle about a future considera- represents tion. (7) Whether the action is related to other actions with individually insignificant but cumulatively signifi- cant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the envi- ronment. (8) The degree to which the action may adversely affect districts, sites, highways, structures or objects listed in or eligible for listing in the National Register of Historic 3la Places or may cause loss or destruction of significant scientific, cultural, or historical resources. (9) The degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the Endan- _ gered Species Act of 1973. (10) Whether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment. 40 C.FR. § 1508.27. The agencies must consider the above factors when determining whether a project may have a significant impact on the environment. A court may set a FONSI aside if the agency fails to consider the above factors or if the record shows the project may have a significant impact on the environment or the agency’s review process was so flawed the court cannot determine whether the project may have a significant impact. Fritiof- son v. Alexander, 772 F.2d 1125, 1238 (5th Cir. 1985), overruled on other grounds by Sabine River, 951 F.2d at 677. The agencies need not demonstrate the project will have absolutely no adverse effects on the environment. E.g., Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 987 (9th Cir. 1985) (“[S]o long as significant measures are undertaken to ‘mitigate the project's effects,’ they need not completely compensate for adverse environ- mental impacts.” (citation omitied)). Il. Summary Judgment Standard All parties move for summary judgment in this case. A court may grant summary judgment if the moving party shows there is no genuine issue of material fact, and it is 32a entitled to judgment as a matter of law. See FED. R. Civ. P. 56(c). In deciding whether to grant summary judgment, the Court construes all facts and inferences in the light most favorable to the nonmoving party. Hart v. O’Brien, 127 F.3d 424, 435 (5th Cir. 1997), cert. denied, 119 S.Ct. 868 (1999). The standard for determining whether to grant summary judgment “ig not merely whether there is & | sufficient factual dispute to permit the case to go forward, , but whether a rational trier of fact could find for the nonmoving party based upon the record evidence before the court.” James v. Sadler, 909 F.2d 834, 837 (5th Cir. 1990). Both parties bear burdens of producing evidence in the summary judgment process. See Celotex Corp. v. Catrett, 106 S.Ct. 2548 (1986). The moving party must first show “if the evidentiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the nonmoving party to carry its burden of proof.” Hart, 127 F.3d at 435. The nonmoving party must then provide “specific facts showing that there is a genuine issue for trial,” and “(njeither ‘conclusory allegations’ nor “onsubstantiated assertions’ will satisfy the non-movant’s burden.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.; 475 U.S. 574, 588 (1986); Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996). In a case like this one, where the Court is reviewing an agency decision under the APA, summary judgment is the appropriate means for resolving claims because the Court is reviewing the legality of the agency action, not acting as the initial factfinder. In an APA case, the Court addresses the legal question of whether the agency action was arbitrary and capricious, SO “the district court’s review pursuant to a summary judgment motion cannot turn on ——— OG Seaiegtag in ar 87a Even with insurance, Longhorn’s resources might well prove inadequate should a spill from the pipeline substan- tially contaminate Lake Travis, the drinking water supply for the City of Austin and smaller communities such as Lago Vista and Lakeway.” Longhorn will thus limit the amount of product which could be released to waters in the Pedernales River basin through installation of strategi- cally placed valves. Except in exceptional flood events, gasoline from a “worst case” spill would volatilize before it reached Lake Travis. To guard against mishaps during those rare flood events, Longhorn will shut its pipeline down whenever flow in the Pedernales is 100,000 cubic feet per second or greater. The estimated probability for contaminating any Lake Travis water supply is 0.02% and much lower for contaminating Austin’s drinking water. Barton Springs Contamination. Numerous commen- tors expressed concern over the potential effects of spills and leaks in the Barton Springs recharge and contributing zone, an area which is unusually sensitive to contamina- tion and on which the fate of the endangered Barton Springs salamander depends. One commentor at the Austin public meeting even submitted a rock from his backyard for the record, providing graphic evidence of the highly porous nature of the limestone in the recharge zone (which could enable rapid transport of a spill through this portion of the Edwards Aquifer, rendering ° Longhorn engaged in extensive discussions and negotiation with LCRA on mitigation in the Pedernales River watershed, an effort the Lead Agencies and their contractor su pported with objective modeling efforts and technical advice. Although those negotiation ended in impasse, Longhorn’s mitigation plan nevertheless includes some features suggested by its discussions with LCRA. 88a effective response and remediation efforts difficult). As an outgrowth of consultation with the U.S. Fish & Wildlife Service, Longhorn now proposes very extensive mitigation for pipeline traversing the Barton Springs recharge and contributing zones (approximately 18 miles). It includes installation of higher strength pipe, installation of a concrete cap above the pipeline, installation of an 8 miles subsurface hydrocarbon sensing cable, and a sealed trench design providing secondary containment of potential spills or leaks. Given that extraordinary commitment, the chance of a release which might contaminate the aquifer is an estimated 0.02%. Death or Injury. Another frequently expressed public concern is the risk of personal or injury or death associ- ated with a flash fire (frequently, but generally incorrectly, termed an “explosion”) fueled by a ruptured pipeline. Fires are associated with only 6% of gasoline pipeline spills and the mitigated pipeline poses an estimated chance of only 0.5% (13.1% without mitigation) that one or more deaths (including deaths of pipeline workers and response team members) will occur in connection with a release over the 50 year project life. At an estimated 2.3% (46.9%, without mitigation), the risk of injury is somewhat higher. The risk of death or injury to any specific individual, home, school, health care facility, or other sensitive human resource along the pipeline route is much lower. There is only an estimated 0.00036% (less than 1 in 250,000) chance that one or more deaths will occur in any given 2500-foot segment of the pipeline and the chance that it will occur in a specific location that would lethally affect some specific resource is presumably smaller. 89a Area Risk. These numerical estimates do not reflect incidental reductions in risks that other pipelines pose to the same environmental amenities. The Longhorn pipeline is located in a corridor it shares with 14 other hazardous liquids pipelines in the Houston area and two others closely parallel most of its remaining route. The Longhorn pipeline will thus pose only incremental spill/leak risks along its route, but some of its mitigation measures will likely reduce the risk of releases and consequential dam- age from the other pipelines. The public education efforts Longhorn will undertake to avoid third party damage, for instance, should also reduce the risk of third party damage to other nearby pipelines. Similarly, frequent patrols of the Longhorn right of way may reasonably be expected to result in detection of third party activity which might damage those other pipelines and result in earlier detec- tion of leaks or spills from those other pipelines. This incidental risk reduction is qualitative as well as quantitative because those other pipelines carry products other than gasoline (crude oil and natural gas liquids) and the environmental risks they pose thus differ from risks associated with the Longhorn pipeline. If Longhorn’s efforts result in avoidance of third party damage to the adjacent crude oil pipeline, the resulting reduction in the risk of long term surface water contamination might even be greater than the residual risk Longhorn’s own highly mitigated gasoline pipeline poses to the same resource. From the standpoint of potential death or injury to people, this area risk reduction may be particularly important in the case of adjacent pipelines carrying commodities more flammable than gasoline, i.e. natural gas liquids and, in the Houston area, propane. The Lead Agencies have not 90a assessed specific risks posed by adjacent pipelines quanti- tatively. It is nevertheless reasonable to conclude that risks associated with those other pipelines will in fact be diminished by operation of Longhorn’s pipeline, offsetting its residual risk to some degree and possibly negating it altogether. Environmental Justice. The Lead Agericies performed an Environmental Justice analysis under Presidential Executive Order 12898 and its accompanying presidential memorandum. A major focus of the analysis was whether the risks of the pipeline would have a disproportionately high and adverse effect on minority or low-income popula- tions. Ultimately, this evaluation addressed both whether the proposed project poses risks to the minority or low- income populations that are disproportionately high and whether the risks to minority or low-income populations are adverse. Because the risks to minority or low-income populations are not significant (as employed by NEPA) and do not appreciably exceed the risks to other popula- tions, for these two reasons, there are no disproportion- ately high and adverse risks. The Lead Agencies focused their analysis on two popula- tions of potential environmental justice concern, those in Harris County and those in Travis County. The Lead Agencies’ pre-mitigation relative risk assessment indi- cated the pipeline had a greater POF in a one low income and minority community in Harris County than in wealth- ier non-minority communities in Harris County. That disparate risk was partly attributable to historical defi- ciencies in EPC’s maintenance activities in the low income and minority community and partly to a higher population density (resulting in a greater POF due to outside force) in that community. Longhorn’s mitigation plan eliminates peat ee: 9la that disparity and, in fact, the pipeline in that area now has a lower POF (and a higher relative risk score) than in non-minority areas in Harris County. As a result of mitigation measures Longhorn proposes to protect Barton Springs and its endangered salamanders, however, potential environmental justice concerns arise in Travis County. The extraordinary measures Longhorn developed during consultation with the U.S. Fish and Wildlife Service reduce relative POF in the recharge and contributing zones so much that it creates a relative disparity between the POF residents of that area face and the POF faced by low income and minority residents living near an adjacent portion of the pipeline. However, the level of risk faced by these low-income and minority residents is not appreciably different from the level of risk faced by the average populated segment of the pipeline. Thus, the population of potential environmental justice concern in Travis County turns out to receive a level of protection comparable to the higher income, non-minority populations in Harris County and elsewhere along the pipeline. Taking all available information into account, these is no disproportionate impact here. Moreover, the estimated probability of a pipeline failure in that low income/minority area during the 50-year project life is still very low and not significant. In sum, the residual environmental risks of Longhorn’s mitigated proposal will have no significant impacts. They are not only minimal in an absolute sense, but are far lower than risks normally associated with operation of similar pipelines and far lower than similar risks much of the same environment faced over the fifty years EPC operated the Houston to Crane segment. They add no large incremental risk to the overall risks of pipeline 92a failure along most of the pipeline’s route and Longhorn’s mitigation measures may even substantially reduce some pre-existing risks. NEP4<’s Goals and Purposes NEPA’s goals and purposes provide further support for finding the minimal residual risks associated with Long- horn’s proposal do not merit preparation of an EIS. NEPA §102(2)(C) requires preparation of an EIS on federal actions which ‘significantly affect the quality of the human environment,” a process which can take several years to complete. After a public scoping process to iden- tify issues for analysis in the EIS, the action agency generally prepares a draft EIS and circulates it to the public as well as to potentially interested federal, state, and local agencies for written comment. Frequently, one or more public hearings are also conducted to obtain com- ments from the public. Following consideration of com- ments, the action agency circulates a final EIS responding to substantive comments and prepares a Record of Deci- sion (ROD) explaining how it resolved issues and balanced environmental effects, the agency’s mission, and other relevant factors. Among other things, a ROD must “state whether all practicable means to avoid or reduce environ- mental harm from the alternative selected have been adopted and, if not, why they were not.” 40 C.F.R. §1505.2(c). Although action agencies using the EIS process must thus consider mitigation measures, neither NEPA nor implementing federal regulations require that such - measures be adopted, even if significant adverse envi- ronmental effects are likely. Moreover, an agency’s authority to require mitigation is generally limited by the scope of its organic statutory authority, a constraint 93a which sometimes renders it impracticable to avoid envi- ronmental harm. Faced with such choices, action agencies sometimes proceed with projects that are likely to have significant adverse effects after completing the EIS proc- ess. EA review is normally a shorter NEPA process. An EA must take a “hard look” at the potential effects of an action so the action agency may decide whether they are “signifi- cant” and thus warrant an EIS. A brief (generally 10 to 15 pages) EA and FNSI are prepared and circulated for comment by other federal, state, and local agencies with regulatory authority over or expertise in the action at issue and/or its effects. Public participation, if any, is sometimes limited to receipt of written comments from individuals on a project mailing list. In contrast to an EIS, an EA provides an action agency no record basis for accepting “significant” environmental effects. To avoid the time and effort associated with EIS prepara- tion, federal agencies and the project proponents they regulate have over time developed a “mitigated FNSI” concept. In CEQ, “The National Environmental Policy Act - A Study of Its Effectiveness After Twenty-five Years,” pp. 19-20 (January 1997), CEQ described the potential benefits and detriments of reliance on that concept: [A] ... significant trend is that of agencies in- creasingly identifying and proposing measures to mitigate adverse effects of proposed actions dur- ing the preparation of EAs. While preparing EAs, agencies often discover impacts that are “signifi- cant,” which would require preparation of an EIS. Agencies may then propose measures to mitigate those environmental effects. If an agency finds that such mitigation will prevent a 94a project from having significant impacts on the environment, the agency can then conclude the NEPA process by issuing a FONSI, rather than preparing an EIS. The result is a “mitigated FONSI.” The 1992 CEQ survey and informal opinions of U.S. EPA officials responsible for re- viewing NEPA analyses indicate an increase in the number of mitigated FONSIs. While mitigated FONSIs are a good way to inte- grate NEPA into planning, some Study partici- pants felt that not all EAs resulting in mitigated FONSIs are meeting the spirit and intent of NEPA. When the EIS process is viewed -as merely a compliance requirement rather than a tool to improve decision-making, mitigated FONSIs may be used simply to prevent the time and expense of the more in-depth analysis re- quired by an EIS. The result is likely to be less rigorous scientific analysis, little or no public in- volvement, and consideration of fewer alterna- tives, all of which are at the very core of NEPA’s strengths. Moreover, not all agencies that com- mit to mitigation monitor to determine whether the mitigation was actually implemented or whether it was effective. An environment benefit associated with “mitigated FNSIs” is the degree of mitigation they encourage in licensing and approval situations. To avoid the expense and delay associated with EISs, applicants may often voluntarily proffer more mitigation than an action agency would or could require after preparation and consideration of an EIS, even though an action agency cannot directly compel an applicant to adopt mitigation in the EA process. The action agency may generally enforce the mitigation com- mitment because the commitment has been incorporated ieee wun at ay Setanta eN ie cla ad, Zh ae ee RE OL NS eT 95a in some otherwise enforceable document or because the agency determines that the failure to adhere to the mitiga- tion commitment is a basis for exercising its authority to revoke or suspend its license or approval.” The benefits of mitigated FNSIs are present here with none of the drawbacks CEQ noted in its 1997 report. In the unique circumstances underlying the Longhorn FA process, preparation of an EIS would be unlikely to yield appreciable benefits or provide additional useful informa- tion for OPS to consider in reviewing J.enghorn’s spill response plan. The EA is atypical in that it mimics an EIS in form, content, and preparation process. The scientific rigor and conservatism with which it analyzes the risks of a proposed pipeline operation is, in the opinion of the Lead Agencies, unprecedented in NEPA review. An EIS would take no harder look at the potential consequences of spills or leaks from Longhorn’s proposal. Nor is it likely the EIS process would result in discovery and consideration of additional reasonable alternatives or in more robust public participation. Furthermore, EIS preparation would be unlikely to result in a safer pipeline. The mitigation measures Longhorn will implement if a FNSI is issued will minimize the potential risks of its project to an insignificant level. Because of its — " Both mechanisms are available here because Longhorn has incorporated mitigation commitments in its Operations and Mainte- nance Manual, a document OPS may enforce pursuant to 49 C.F.R. §195.401(a). Interested citizens may also have enforcement rights pursuant to 49 U.S.C. §60121. Also, OPS may exercise its authority to require changes to the response plan as a condition of its continued approval pursuant to 49 C.F.R. Part 194. 96a thorough nature and the process under which it was prepared, the Longhorn EA has resulted in greater mitiga- tion than would likely result from the EIS process. “NEPA’s purpose is not to generate paperwork — even excellent paperwork — but to foster excellent action.” 40 C.F.R. §1500.1(c). Here, that purpose is best served by issuance of this FNSI. DECISION OPS approval of the Spill Response Plan submitted by Longhorn Partners Pipeline, L.P. will not significantly affect the quality of the human environment. Accordingly, no EIS need be prepared on that action. /s/ Gregg A. Cooke Gregg A. Cooke Regional Administrator EPA Region 6 /s/ Kelley S. Coyner Kelley S. Coyner Administrator Research and Special Programs Administration ee EE 97a IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 02-50956 ETHEL SPILLER; ET AL Plaintiffs MARIAN COLLINS; BARTON SPRINGS/ EDWARDS AQUIFER CONSERVATION DISTRICT; DAVID ROBERTSON; Plaintiffs — Appellants CITY OF AUSTIN Intervenor Plaintiff — Appellant v. THOMAS E WHITE, Etc; ET AL Defendants THOMAS E WHITE, in his official capacity as Acting Secretary of the Department of the Army; NORMAN Y MINETA, SECRETARY, DEPARTMENT OF TRANSPOR- TATION; CHRISTINE T WHITMAN » ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; UNITED STATES OF AMERICA; Defendants — Appellees LONGHORN PARTNERS PIPELINE LP Defendant — Appellee Appeal from the United States District Court for the Western District of Texas, Austin 98a ON PETITION FOR REHEARING (Filed Jan. 12, 2004) Before JOLLY, SMITH, and EMILIO M. GARZA, Circuit Judges. PER CURIAM: IT IS ORDERED that the petition for rehearing is DENIED. ENTERED FOR THE COURT: /s/ E. Grady Jolly United States Circuit Judge 99a IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION ETHEL SPILLER,’ MARIAN COLLINS. BARTON SPRINGS- EDWAR US AQUIFER CONSER- VATION DISTRICT, DAVID ROBERTSON, Plaintiffs, CITY OF AUSTIN, Plaintiff-Intervenor -vs- ROBERT M. WALKER, in his official capacity as Acting Secretary of the Department of the Army, et al., RODNEY SLA; TER, in his official capacity as Secretary of Transportation, CAROL A. BROWNER, in her official capacity as Administra- tor of the Environmental Pro- tection Agency, UNITED STATES OF AMERICA, and LONGHORN PARTNERS PIPE- LINE, L.P., Defendants Case No. A-98-CA-255-SS * Although Ethel Spiller has withdrawn as the plaintiff in this case, her name is listed in the caption to avoid confusion. 100a SECOND AMENDED JUDGMENT (Filed Aug. 15, 2002) BE IT REMEMBERED on the 19th day of July 2002 the Court entered its order granting Defendant Longhorn Pipeline Partners, L.P. and the Federal Defendants’ Motions for Summary Judgment and thereafter enters the following judgment: IT IS ORDERED, ADJUDGED, and DECREED that Plaintiffs Marian Collins, David Robertson and the Barton Springs — Edwards Aquifer Conservation District and Plaintiff-Intervenor City of Austin TAKE NOTHING from the Defendants Robert M. Walker, in his official capacity as Acting Secret of the Department of the Army; Rodney Slater, in his official capacity as Secretary of Transportation; Carol A. Browner, in her official capacity as Administrator of the Environmental Protection Agercy; the United States of America; and Longhorn Partners Pipeline, L.P., and that the Defendants go hence withcut delay. All costs shall be taxed to the Defendants, for which execution shall issue; IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Plaintiff Longhorn Partners Pipeline, L.P.’s causes of action against Defendants City of Austin; Jesus Garza, in his official capacity as City Manager of Austin; and Charles Lesniak, in his official capacity as Senior Environmental Compliance Officer of Austin, originally filed in Civil Action No. A-02-CA-001-SS and consolidated with this action by Order dated January 11, 2002, are DISMISSED WITHOUT PREJUDICE to refil- ing. Each party shall bear its own costs. 10la SIGNED this the 15th day of August 2002. /s/ Sam Sparks SAM SPARKS UNITED STATES DISTRICT JUDGE 102a UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION ETHEL SPILLER, JOHN § MOLESWORTH, LUCIEN § COLLINS, MARIAN COLLINS, § ROB ROY SPILLER, § BARBARA SPILLER, HUGH § SPILLER, and MARY SPILLER, § Plaintiffs VS. ROBERT M. WALKER, FEDERAL ENERGY REGULATORY COMMISSION, RODNEY SLATER, CAROL - BROWNER, UNITED STATES, LONGHORN PARTNERS PIPELINE, L.P., and EXXON PIPELINE COMPANY, Defendants. NO. A 98 CA 255 SS COP (OP? (OP OP (OP? 60? CO? 60? CO? OR? CO? SO? ORDER BE IT REMEMBERED that on the 25th day of August 1998, the Court reviewed the file in the above-styled cause, particularly the applications for preliminary injunc- tion and the motions to dismiss.’ The Court has held ' Before the Court are the plaintiffs’ First Amended Complaint and Application for Preliminary Injunction [#12] and the federal defendants’ answer thereto [#22]; and the motions to dismiss filed by Rodney Slater [#13-2], the Federal Energy Regulatory Commission [#43], and Long- horn Partners Pipeline, L.P. [#28], and the plaintiffs’ responses thereto [#30, #35, and #51, respectively]. The intervenor the City of Austin has (Continued on following page) SS se eae 103a hearings in this case on April 30, 1998 and July 30, 1998 and made various rulings, as memorialized in prior orders. The Court has carried the applications for preliminary injunction to this point. The Court has granted the Fed- eral Energy Regulatory Commission’s (“FERC”) motion to dismiss, but it has carried all other motions to dismiss. This is a case in which a partnership of several oil companies and four government agencies take the position that there is no “major Federal action” involved in the federal regulation of the transport of refined gasoline over 700 miles through Texas cities, farms, and ranches through a forty-eight year old pipe with a past history of leaks when carrying unrefined crude oil. Worse, each _ federal agency refuses to take responsibility for conducting an environmental impact statement or even a less onerous environmental assessment to analyze the environmental dangers involved in such a pipeline and apparently prefers to allow the pipeline to run without any overall evaluation of the effect such a pipeline could have on the human environment. In accordance with the following opinion, the Court now grants the motions for preliminary injunction and enjoins the transportation of refined petroleum products in the Longhorn Pipeline and orders the federal agencies to complete an Environmental Impact Statement on the pipeline project at issue in this case. also filed a Complaint and Application for Preliminary Injunction [#55], which is substantially similar to the plaintiffs’ First Amended Com- plaint and Application for Preliminary Injunction and seeks the same remedies. * For citation purposes, the April 30, 1998 hearing will be referred to as “Hearing I,” and the July 30, 1998 hearing will be referred to as “Hearing II.” 104a I. Background The plaintiffs have filed suit for injunctive relief to enforce the National Environmental Policy Act (“NEPA”). Specifically, [t]he plaintiffs seek to have the federal govern- ment perform a full-fledged review, as required by [the NEPA], of the environmental conse- quences of federal action that would allow a 48year-old pipeline originally built to carry crude oil from Crane in West Texas to Baytown to be converted to a gasoline pipeline carrying as much as 250,000 barrels a day across [various aquifers] and other environmentally-sensitive areas, then patched onto a new segment to complete the transportation of the gasoline products from Crane to El Paso and points further west to Al- buquerque, New Mexico, and Phoenix, Arizona {and possibly Mexico]. First Amended Complaint and Application for Preliminary Injunction [#12] at 2. The individual plaintiffs in the First Amended Complaint, Ethel Spiller, John Molesworth, Lucien Collins, Marian Collins, Rob Roy Spiller, Barbara Spiller, and David Robertson, are landowners in Kimble and Hays Counties’ whose land and water supplies would be traversed and arguably threatened by the proposed Longhorn Pipeline. The final plaintiff in the First Amended Complaint, the Barton Springs-Edwards Aquifer Conservation District, is a political subdivision of the State of Texas charged with the conservation and protection of * Robertson is the only plaintiff whose land is in Hays County. The rest are Kimble County landowners. 105a groundwater in a four-county district,* through which the proposed pipeline would flow. Plaintiffs Hugh Bob Spiller, Mary Lee Spiller, Rob Roy Spiller, Ethel Spiller, Bea Ann Spiller, and John Molesworth filed notices of voluntary dismissal before any answer or motions for summary judgment were filed.’ Additionally, the City of Austin has been granted leave to intervene as a plaintiff because the proposed pipeline would traverse the City and potentially threaten its water supply. The Lower Colorado River Authority (“LCRA”) has also filed a Motion to Intervene as Plaintiff [#56], which the Court hereby grants in this opinion and order because of the LCRA’s interest in * Those four counties are Hays, Travis, Bastrop, and Caldwell. * Defendant Longhorn Pipeline Company argues this lawsuit was orchestrated and is being financed by Navajo Refining Company. Navajo currently supplies refined petroleum to the markets to which Longhorn plans to deliver the same products after completing the pipeline. Indeed, on May 8, 1998, counsel for the plaintiffs stated in a letter to the plaintiffs: Navajo Refining and its parent corporation, Holly Cor- poration, which are billion dollar a year corpcrations with all the assets necessary to handle any potential liability, have agreed and are in agreement with paying all of the ex- penses, costs, liability and any other category of money that might be associated with this litigation. . . . Longhorn Pipeline, L.P.’s Rule 12(b)(6) Motion to Dismiss [#28], exh. 2 (Deposition of Mary Lee Spiller, dep. exh. 9). Furthermore, at least two of the original plaintiffs did not understand the litigation counsel would be initiating on their behalf, see id., exh. 2 (Deposition of Mary Lee Spiller at 17-19) & exh. 3 (Deposition of Hugh B. Spiller at 7-8), and six plaintiffs have filed notices of voluntary dismissal. As unsettling as these issues may be, however, they are irrelevant to the Court’s analysis of the merits of the plaintiffs’ case as stated in the First Amended Complaint. 106a managing the water supply over which a large portion of the proposed pipeline would traverse’ Longhorn Partners Pipeline, L.P. (“Longhorn”) is a Delaware partnership’ headquartered in Dallas, Texas. Longhorn intends to operate a pipeline project, hereinafter referred to as the “Longhorn Pipeline,” which will be capable of transporting refined petroleum products from the Gulf Coast of Texas, across the entire state for ap- proximately 700 miles, to El Paso and points beyond. Longhorn has acquired a 450-mile segment of pipeline from Exxon that was built in 1950 and was used until 1995 to transport crude oil from Crane, Texas to a refinery in Baytown, Texas. Longhorn plans to convert this pipeline to transport refined petroleum products between the Gulf of Mexico and Crane and to construct a new 250-mile pipeline segment from Crane to El Paso to complete the petroleum transportation project. Longhorn plans to fill the pipeline with refined petroleum products beginning on October 19, 1998 and to begin actively transporting the petroleum products in December 1998." The plaintiffs argue Longhorn must comply with several federal regula- tions, receive government authority, and secure right-of- ways from various federal agencies, which amounts to * The LCRA’s complaint and application for preliminary injunction, which the Court orders filed in this opinion and order, are substantially similar to those filed by the other plaintiffs, including the City of Austin. " The partnership’s general partner is Longhorn ~ :rtners GP, L.L.C., and its limited partners include Exxon Pipe’. e Company, Amoco Pipeline Company, Williams Pipeline Company, the Beacon Group Energy Investment Fund, L.P., and Chisholm Holdings. * See Hearing II, at 13. 107a “major Federal action” by the federal government in the pipeline project. The plaintiffs have sued a number of defendants. Defendant Rodney Slater is the Secretary of the United States Department of Transportation (“DOT”). DOT has the duty to enforce the HLPSA and is the federal agency that has been the most intimately involved with safety issues surrounding the Longhorn Pipeline. The Federal Energy Regulatory Commission (“FERC”) was originally a defendant, but it has been dismissed because its only function has been in ratemaking. Defendant Robert M. Walker is the Acting Secretary of the Department of the Army (the “Army”). Longhorn has requested that the Army grant it right-of-way permits to cross federal public lands, particularly Fort Bliss in El Paso County, in carrying out the pipeline project. The Army Corps of Engineers (“Army Corps”) must approve pipeline construction and modifica- tions crossing navigable waterways such as the Pecos River and the James River. The Army Corps must also issue a permit before Longhorn may tunnel across or under Greens Bayou, pursuant to the Rivers and Harbors Act. Defendant Carol Br [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1559%3A1. Public record. Not legal advice.