Case 1:20-cv-03817 Document 1 Filed 12/24/20 Page 1 of 49
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`Case No.
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`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF
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`RED LAKE BAND OF CHIPPEWA INDIANS
`15484 Migizi Dr.
`Red Lake, MN 56671
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`WHITE EARTH BAND OF OJIBWE
`35500 Eagle View Rd.
`Ogema, MN 56569
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`HONOR THE EARTH
`607 Main Ave.
`Callaway, MN 56521
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`SIERRA CLUB
`2101 Webster St.
`Ste. 1300
`Oakland, CA 94612
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`Plaintiffs,
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`v.
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`UNITED STATES ARMY CORPS OF
`ENGINEERS,
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`
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`Defendant.
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`
`
`INTRODUCTION
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`1.
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`This complaint challenges authorizations by the United States Army Corps of
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`Engineers (“Corps”) in connection with a so-called pipeline “replacement” project in Minnesota
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`(“Project”) proposed by Enbridge Energy, Limited Partnership (“Enbridge”).
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`2.
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`Enbridge currently operates a 34-inch diameter pipeline (“Existing Line 3”) with
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`an average annual capacity of 430,000 barrels per day (“bpd”) and a design capacity of
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`approximately 478,000 bpd or 332 barrels per minute. Enbridge currently uses Existing Line 3
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`to carry mostly lighter grades of oil, not the heavier “diluted bitumen” or “dilbit” extracted in the
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`Alberta tar sands region. Existing Line 3 crosses from Canada into the U.S. border near Neche,
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`North Dakota, and then travels across the northeastern corner of North Dakota and northwestern
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`Case 1:20-cv-03817 Document 1 Filed 12/24/20 Page 2 of 49
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`Minnesota to Enbridge’s Clearbrook Terminal in northcentral Minnesota, and from there across
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`northern Minnesota, including the Leech Lake and Fond du Lac Indian Reservations, to
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`Enbridge’s Superior Terminal in Superior, Wisconsin. The Superior Terminal is located on the
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`banks of the Nemadji River approximately 3.5 miles upriver from Lake Superior.
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`3.
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`Enbridge would construct a new pipeline to “replace” Existing Line 3. The new
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`pipeline is also called “Line 3,” but it would transport heavy sour “dilbit” from the tar sands
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`region in Alberta, Canada to the Clearbrook and Superior Terminals. The Project consists of the
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`portion of Line 3 that would travel across approximately 338 miles in Minnesota and about
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`three-quarters of a mile in North Dakota. The Project would cross 227 waterbodies and more
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`than 800 protected wetlands. The Project also would cross ceded lands in Minnesota where
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`Plaintiffs Red Lake Band of Chippewa Indians and White Earth Band of Ojibwe (collectively,
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`“Tribes”) exercise claimed hunting, fishing, and gathering rights.
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`4.
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`On November 23, 2020, the Corps granted Enbridge’s request for a Clean Water
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`Act (“CWA”) Section 404 permit to discharge dredged and fill material into waters of the United
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`States. 33 U.S.C. § 1344. The Corps also authorized the alteration of Rivers and Harbors Act
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`navigable waters, pursuant to Section 10 of the Rivers and Harbors Act of 1899 (“RHA”),
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`33 U.S.C. § 403. At the same time, the Corps issued a letter authorizing work altering the Lost
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`River, Minnesota Flood Control Project under Section 14 of the RHA, 33 U.S.C. § 408, which is
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`commonly referred to as a “Section 408 Permit.” These authorizations are referred to collectively
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`in this complaint as the “Permit” and are required for Enbridge to construct the proposed
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`pipeline.
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`5.
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`Although promoted as a replacement, significant portions of the Project would
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`travel along a new route. Moreover, the initial average annual capacity of the new Line 3, of
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`which the Project is an integral part, would almost double to approximately 760,000 bpd, as
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`would its initial design capacity, which would increase to 844,000 bpd, or 586 barrels per
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`minute. Line 3, including the Project, would be constructed with pipe and other fittings that
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`would allow Line 3 ultimately to have an average annual capacity of 915,000 bpd and a design
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`capacity of 1,016,000 bpd, or 705 barrels per minute, by the inclusion of additional pumping
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`horsepower.
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`6.
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`Spills of tar sands oil can devastate entire ecosystems and are deleterious to
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`human health. The increased extraction and use of Canadian tar sands oil that the Project will
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`facilitate also will cause significant damage, estimated in the hundreds of billions of dollars, due
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`to its contribution to climate change.
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`7.
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`Plaintiffs Red Lake Band of Chippewa Indians, White Earth Band of Ojibwe,
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`Honor the Earth, and Sierra Club bring this case because the Corps’ issuance of the Permit
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`authorizing the pipeline violates multiple federal laws and treaties, harming Plaintiffs and their
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`members.
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`8.
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`Although the Corps purports to find that the Project will have no significant
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`impact on the environment, both construction and operation of the Project would have significant
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`impacts.
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`9.
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`Construction would require clearcutting vegetation from a 50 foot-wide
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`permanent right-of-way and a 95- to 125-foot temporary construction right-of-way for the entire
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`route of the Project; excavation of a minimum 7 foot-deep trench; stockpiling of removed soils;
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`transportation of approximately 60 foot-long, 36-inch diameter pipe segments to the trench;
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`welding the pipe segments into a continuous pipeline; re-filling of the trench; and construction of
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`ancillary facilities, including pump stations, valves, electrical substations, access roads,
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`horizontal directional drilled waterbody crossings, cathodic protection equipment, and
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`communications facilities. These activities also would utilize a substantial amount of heavy
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`equipment that will produce noise and air emissions, damage roads, and compact soils. These
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`construction-related activities alone make the Corps’ finding of no significant impact
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`indefensible.
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`10.
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`In addition, the Corps ignored significant operational impacts the Permit would
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`authorize, including impacts to water quality and drinking water; impacts to hunting, fishing, and
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`gathering; oil spill risks; indirect air quality impacts resulting from the significant amounts of
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`electrical power needed for the additional pumps; environmental justice concerns; and climate
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`impacts.
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`11.
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`By ignoring these impacts, the Corps improperly decided not to prepare an
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`Environmental Impact Statement.
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`12.
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`The construction and operation of the Project, as authorized by the Corps, will
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`harm the environment, including resources supporting the Tribes’ hunting, fishing, and gathering
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`activities on and off their Reservations. The environmental harm brought about by the project
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`will also harm the interests of members of Honor the Earth, the Sierra Club, and all Minnesotans
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`who hunt, fish, and recreate in Northern Minnesota. The Project will, among other things,
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`damage or destroy a significant amount of wetlands and uplands within federal jurisdiction,
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`damage or destroy important waters and culturally significant resources, likely result in spills of
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`harmful tar sands oil, and increase greenhouse gas emissions. The Corps’ failure to take a hard
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`look at these impacts under the National Environmental Policy Act (“NEPA”) renders the
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`approvals unlawful.
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`13. Moreover, the Corps failed to fully evaluate whether construction of the pipeline
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`meets the requirements of a CWA § 404 permit, including whether the pipeline is the least
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`environmentally damaging practicable alternative.
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`14.
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`The Corps failed to comply with its own regulations for CWA § 404 permits and
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`RHA Section 14 authorizations when it improperly concluded that the pipeline is in the public
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`interest.
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`15.
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`Plaintiffs seek a declaration that the Corps’ issuance of the Permit authorizing
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`construction and operation of the Project was arbitrary, capricious, an abuse of discretion, or
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`otherwise not in accordance with law; in excess of statutory jurisdiction, authority, or limitations,
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`or short of statutory right; and without observance of procedure required by law in violation of
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`the Administrative Procedure Act (“APA”), NEPA, the CWA, and the Corps’ own permit
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`regulations. Plaintiffs ask that the Permit authorizing the Project be vacated and that construction
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`of the Project be enjoined.
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`JURISDICTION AND VENUE
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`16.
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`This Court has jurisdiction over the claims set forth in this complaint pursuant to
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`28 U.S.C. §§ 1331 (federal question), 1346 (United States as defendant), and 1362 (civil actions
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`brought by federally recognized tribes when the matter in controversy arises under the
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`Constitution, laws, or treaties of the United States). The relief sought is authorized by 28 U.S.C.
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`§§ 2201(a) and 2202, and 5 U.S.C. § 706.
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`17.
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`Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e) because it is the
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`district in which the defendant resides.
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`PARTIES
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`18.
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`The Red Lake Band of Chippewa Indians is a federally recognized Indian tribe
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`with a government-to-government relationship with the United States. The Band originates from
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`the Anishinaabe, who have always held the land and water sacred. The Red Lake Band and its
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`people are inextricably bound to the cultural landscape and tied to the ecosystem and broader
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`environment. Prior to treaties, forced land cessions, congressional proceedings, and other United
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`States government actions, the Red Lake Band held over 15 million acres of land in what is now
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`north central Minnesota and in the Red River Valley of Minnesota and North Dakota.
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`19.
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`The Band has historically been a party to major treaties that impact Anishinaabe
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`Territory, beginning with the 1825 Treaty of Prairie du Chien, that acknowledged the
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`Chippewa’s sovereignty over the entire territory of northern Minnesota and that no other tribe
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`could hunt within that territory without the Chippewa’s permission. Treaty with the Sioux, Etc.,
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`Aug. 19, 1825, 7 Stat. 272, arts. 5, 13. The Band also participated in the 1837 Treaty with the
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`Chippewa.
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`20.
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`The Band now occupies the Red Lake Reservation in Northwest Minnesota,
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`which was established by the 1863 Treaty at the Old Crossing of the Red Lake River, in which
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`the Band ceded nearly 11 million acres of land. In 1889, 1902, and 1904, the Band was forced to
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`cede over 3 million additional acres of land reserved under the 1863 Treaty. Approximately
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`250,000 acres of lands that were ceded to the United States through the Treaties of 1889 and
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`1904 were restored to the Red Lake Band through the Red Lake Reservation, Minnesota Order of
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`Restoration, 10 Fed. Reg. 2,448-03 (Mar. 2, 1945). The restored ceded lands are scattered
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`throughout the 1889 and 1904 Treaty ceded territory, and the Line 3 corridor is in close
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`proximity to several of the Red Lake Band’s restored ceded parcels.
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`21.
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`The Project’s proposed route travels through Red Lake lands ceded to the United
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`States in 1863 and 1889. The Project’s proposed route also travels within 10 miles of the Red
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`Lake Reservation boundaries.
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`22.
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`Since time immemorial, Red Lake members have depended on the natural
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`freshwaters of Red Lake itself—which lies both within the formal reservation and on ceded lands
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`adjacent to it—for their sustenance and economic livelihood. The Red Lake Tribal Council, the
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`governing body of the Red Lake Band, currently issues permits to Band members to hunt, fish
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`and gather on the Red Lake Reservation and on the lands that were ceded to the United States
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`through the 1863 Treaty. Red Lake tribal members currently hunt large and small game, fish for
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`many species of fish, and gather wild rice, edible plants, medicinal plants and other plant and
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`animal species throughout the Red Lake Reservation, and on the lands that were ceded to the
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`United States through the 1863 Treaty.
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`23.
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`The White Earth Band of Ojibwe is one of the six Chippewa bands comprising the
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`Minnesota Chippewa Tribe. The Minnesota Chippewa Tribe is a federally recognized Indian
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`tribe organized under the Indian Reorganization Act of 1934, 25 U.S.C. § 5101-5129.
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`24.
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`The White Earth Band occupies the White Earth Reservation in Northwest
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`Minnesota, which was a relocation reservation established by the 1867 Treaty between the
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`United States and the 1855 Mississippi Bands of Chippewa Indians. Treaty with the Chippewa of
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`the Mississippi, Mar. 19, 1867, 16 Stat. 719.
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`25.
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`The White Earth Band is comprised mostly of the Chippewas of the Mississippi
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`and has historically been a party to most major treaties that impact Anishinaabe Territory,
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`beginning with the 1825 Treaty of Prairie du Chien, that acknowledged the Chippewa’s
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`sovereignty over the entire territory of northern Minnesota and that no other tribe could hunt
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`within that territory without the Chippewa’s permission. Treaty with the Sioux, Etc., Aug. 19,
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`1825, 7 Stat. 272, arts. 5, 13; 1826 Treaty of Fond du Lac, 7 Stat. 290, art. 1.
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`26.
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`The Chippewas of the Mississippi also participated in the 1837 Treaty, the 1842
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`Treaty, and the 1854 and 1855 Treaty land cessions, which cover most of the lands, rivers and
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`cultural places crossed and impacted by the Project.
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`27.
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`The White Earth Band is a successor-in-interest tribal government to the
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`Chippewas of the Mississippi signatories of the 1855 Treaty of Washington between the United
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`States and the Mississippi, Pillager, and Winnibigoshish Bands of Chippewa Indians. Treaty with
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`the Chippewa, Feb. 22, 1855, 10 Stat. 1165.
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`28.
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`Since time immemorial, the Chippewas of the Mississippi have depended on the
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`natural freshwaters of the Mississippi itself for their sustenance and economic livelihood. White
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`Earth tribal members currently hunt large and small game, fish for many species of fish, and
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`gather wild rice, edible plants, medicinal plants, and other plant and animal species throughout
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`the White Earth Reservation, and on the lands that were ceded to the United States.
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`29.
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`The White Earth tribal members attach religious and cultural significance to the
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`land ceded in the1855 Treaty as the traditional homelands of the Chippewas of the Mississippi.
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`The Project’s proposed route travels primarily through the ceded territories adjacent to the White
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`Earth Reservation boundaries and the Headwaters of the Mississippi River. The Project path
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`crosses hundreds of streams, rivers, wetlands and aquifers, risking the freshwater resources that
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`are essential to sustain treaty-reserved foods of wild rice, fish, and maple syrup, which all require
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`abundant, high quality freshwater resources.
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`30. Wild Rice is the central, most important part of the Chippewa traditions,
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`spirituality, and cultural practices. The White Earth Band of Ojibwe has adopted resolutions
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`providing for the Rights of Manoomin (wild rice) to provide additional environmental
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`protections for this essential resource.
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`31.
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`Fig. 1, Map of Minnesota with Reservations and Ceded Territory by Treaty Year1
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`Fig. 2, Map of Proposed Pipeline Route2
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` Minnesota Territory 1849-1858, Minn. Hist. Soc’y,
`https://www.mnhs.org/talesoftheterritory/territory/treaty/treaty13.php.
`2 Line 3 Replacement Project, Enbridge, https://www.enbridge.com/projects-and-
`infrastructure/public-awareness/minnesota-projects/line-3-replacement-project.
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`32.
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`Honor the Earth is an Indigenous-led organization working primarily on issues of
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`advocacy and support for Native communities. The organization works nationally and
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`internationally with Indigenous peoples, many of whom are impacted by pipeline projects,
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`including the Enbridge Line 3 pipeline. Honor the Earth has also been involved in protecting and
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`acknowledging the sacredness of water. The organization is headquartered on the White Earth
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`Reservation and its leadership is comprised of tribal members from the Anishinaabe of Northern
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`Minnesota (which include the Ojibwe, or Chippewa). The organization is committed to a
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`sustainable economy predicated on ecological and cultural vitality. Many of Honor the Earth’s
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`members continue the way of life of their ancestors by hunting, fishing, and gathering in the
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`territory ceded in the 1855 Treaty.
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`33.
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`Sierra Club is one of the oldest environmental organizations in the United States.
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`Sierra Club is incorporated in the State of California as a Nonprofit Public Benefit Corporation
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`with headquarters in Oakland, California. The organization has over 3.8 million members and
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`supporters nationwide, of whom approximately 20,680 are in Minnesota. Sierra Club is
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`dedicated to protecting and preserving the natural and human environment, and its purposes are
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`to explore, enjoy, and protect the wild places of the earth; to practice and promote the
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`responsible use of the earth’s ecosystems and resources; and to educate and enlist humanity to
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`protect and restore the quality of the natural and human environments. In support of this mission,
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`Sierra Club has taken extensive actions on climate change, including participating in state and
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`federal rulemaking, opposing further buildout of fossil fuel infrastructure, and working to reduce
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`greenhouse gas emissions from existing facilities.
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`34.
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`Sierra Club members and staff live, work, and recreate in places threatened by the
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`Line 3 Project, and use, study, and cherish the land, water, wildlife, and other resources that may
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`be irrevocably damaged by the project. Sierra Club members own property on and/or near the
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`proposed pipeline route, and some of those properties are located downstream of and/or near
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`waterways that the pipeline would cross. The project threatens members’ use and enjoyment, and
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`the economic value, of their property, as well as the waters that members use and enjoy both as a
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`resource and for the habitat they provide for plants and animals. Sierra Club members also enjoy
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`hiking, picnicking, fishing, and/or observing wildlife in parks and along rivers and streams near
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`and on the proposed pipeline route, and plan to return to those areas to pursue such activities in
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`the future.
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`35.
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`By refusing to prepare and publish an adequate and complete environmental
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`review of Line 3, the Corps failed to analyze and address the project’s negative impacts on and
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`threats to the interests of Plaintiffs. The declaratory and injunctive relief Plaintiffs seek in this
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`lawsuit will redress their injuries by setting aside the Corps’ approvals and requiring the Corps to
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`comply with NEPA, the CWA, and the APA.
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`36.
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`Defendant is the U.S. Army Corps of Engineers, an agency within the executive
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`branch of the federal government. The Corps is the lead agency for permitting the discharge of
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`dredged or fill material into navigable waters of the United States under CWA § 404, 33 U.S.C.
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`§ 1344, and granting authorizations under RHA §§ 10 and 14, 33 U.S.C. §§ 403, 408. The Corps
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`is responsible for NEPA compliance for its permitting and authorization decisions.
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`STATUTORY AND REGULATORY BACKGROUND
`THE NATIONAL ENVIRONMENTAL POLICY ACT
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`I.
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`37.
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`NEPA, 42 U.S.C. §§ 4321–4370m, is our “basic national charter for protection of
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`the environment.” 40 C.F.R. § 1500.1(a) (2019).3 It makes environmental protection part of the
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`mandate of every federal agency, 42 U.S.C. § 4331, and requires federal agencies to take
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`environmental considerations and “any irreversible and irretrievable commitments of resources”
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`into account in their decisionmaking “to the fullest extent possible,” id. § 4332; 40 C.F.R.
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`§ 1500.2 (2019).
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`38.
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`NEPA seeks to ensure that federal agencies take a “hard look” at environmental
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`consequences before taking a major action. Friends of the Boundary Waters Wilderness v.
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`Dombeck, 164 F.3d 1115, 1128 (8th Cir. 1999). One of NEPA’s primary purposes is to ensure
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`that an agency, “in reaching its decision, will have available, and will carefully consider, detailed
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`information concerning significant environmental impacts.” Robertson v. Methow Valley
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`Citizens Council, 490 U.S. 332, 349 (1989). NEPA also “guarantees that the relevant information
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`[concerning environmental impacts] will be made available to the larger audience,” including the
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`
`
` 3
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` After the Permit application was submitted, the Council on Environmental Quality (CEQ)
`revised its regulations implementing NEPA. See Update to the Regulations Implementing the
`Procedural Provisions of the National Environmental Policy Act, 85 Fed. Reg. 43,304 (July 16,
`2020). This Complaint cites to the prior regulations, which were in effect during most of the
`environmental review process for Line 3, including both of the Corps’ public comment periods,
`and therefore apply here. The new regulations are also already subject to four lawsuits. See
`Compl. for Declaratory and Injunctive Relief, California v. Council on Env’t Quality, No. 3:20-
`cv-06057 (N.D. Cal. Aug. 28, 2020); Compl., Env’t Just. Health All. v. Council on Env’t Quality,
`No. 1:20-cv-06143 (S.D.N.Y. Aug. 6, 2020); Compl., Wild Va. v. Council on Env’t Quality, No.
`3:20-cv-00045 (W.D. Va. July 29, 2020); Compl. for Declaratory and Injunctive Relief, Alaska
`Cmty. Action on Toxics v. Council on Env’t Quality, No. 3:20-cv-05199 (N.D. Cal. July 29,
`2020). Moreover, without express statutory authority to the contrary, rules do not apply
`retroactively. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988).
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`general public, “that may also play a role in both the decisionmaking process and the
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`implementation of that decision.” Id.
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`39.
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`NEPA requires federal agencies to fully disclose in “every recommendation or
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`report on proposals for . . . major Federal actions significantly affecting the quality of the human
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`environment, a detailed statement” on, among other things, “the environmental impact of the
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`proposed action” and “any adverse environmental effects which cannot be avoided should the
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`proposal be implemented.” 42 U.S.C. § 4332(C). This statement is referred to as an
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`Environmental Impact Statement (“EIS”).
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`40.
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`NEPA also requires agencies to use high quality, accurate scientific information
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`and to ensure the scientific integrity of the analysis. 40 C.F.R. §§ 1500.1(b) (2019), 1502.24
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`(2019).
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`41. Major federal actions include “new and continuing activities, including projects
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`and programs entirely or partly financed, assisted, conducted, regulated, or approved by federal
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`agencies,” 40 C.F.R. § 1508.18(a) (2019), and “[a]pproval of specific projects, such as
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`construction or management activities located in a defined geographic area. Projects include
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`actions approved by permit or other regulatory decision as well as federal and federally assisted
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`activities.” Id. § 1508.18(b)(4) (2019). The word “major” “reinforces but does not have a
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`meaning independent of significantly.” Id. § 1508.18 (2019).
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`42.
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`If it is unclear whether impacts are significant enough to warrant an EIS, a federal
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`agency may prepare an “environmental assessment” (“EA”) to assist in making that
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`determination. Id. §§ 1501.3 (2019), 1508.9 (2019). If the agency determines that no EIS is
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`required, it must document that finding in a “finding of no significant impact” (“FONSI”). Id.
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`§ 1508.13 (2019).
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`43. When a project cannot go forward without a permit, then the environmental
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`impacts of the entire project must be reviewed under NEPA. White Tanks Concerned Citizens,
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`Inc. v. Strock, 563 F.3d 1033, 1039–40 (9th Cir. 2009); see also 33 C.F.R. Pt. 325, App. B
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`§§ 7(b)(1), 7(b)(2)(A).
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`44.
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`If the agency concludes in an EA that a project may have significant impacts on
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`the environment, then an EIS must be prepared. 40 C.F.R. § 1501.4 (2019).
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`45.
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`To determine whether a proposed action may significantly affect the environment,
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`the agency must consider both the context (i.e., the import of the action on society, the regions or
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`localities affected, and the interests affected by the action) and intensity (i.e., the “severity of
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`impact”) of the proposed action, including whether the project will take place in “ecologically
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`critical areas” and whether the project will affect endangered species. Id. § 1508.27 (2019).
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`46. With respect to the latter, the regulations lay out ten factors that are to be
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`considered. Examples of these criteria include the degree to which: the proposed action affects
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`public health or safety; the possible effects on the human environment are likely to be highly
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`controversial; the possible effects on the human environment are highly uncertain or involve
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`unique or unknown risks; the action may establish a precedent for future actions with significant
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`effects or represents a decision in principle about a future consideration; the action is related to
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`other actions with individually insignificant but cumulatively significant impacts; and the action
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`may adversely affect an endangered or threatened species or its habitat. Id.
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`47.
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`An EIS must include a “range of actions, alternatives, and impacts.” 40 C.F.R.
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`§ 1508.25 (2019). For example, an agency must consider direct and indirect impacts, or effects,
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`of an action when determining the scope of an EIS. Id. § 1508.25(c)(1)–(2) (2019). The direct
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`effects of an action are those effects “which are caused by the action and occur at the same time
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`Case 1:20-cv-03817 Document 1 Filed 12/24/20 Page 15 of 49
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`and place.” Id. § 1508.8(a) (2019). The indirect effects of an action are those effects “which are
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`caused by the action and are later in time or farther removed in distance, but are still reasonably
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`foreseeable.” Id. § 1508.8(b) (2019).
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`48.
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`An agency also must analyze and address the cumulative impacts of a proposed
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`project. Kleppe v. Sierra Club, 427 U.S. 390, 410 (1976); 40 C.F.R. §§ 1508.7 (2019),
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`1508.25(c)(3) (2019). Cumulative impacts are the result of any past, present, or reasonably
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`foreseeable future actions, regardless of who takes them. Such effects “can result from
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`individually minor but collectively significant actions taking place over a period of time.” Id.
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`§ 1508.7 (2019).
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`49.
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`“[A] meaningful cumulative impact analysis must identify (1) the area in which
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`the effects of the proposed project will be felt; (2) the impacts that are expected in that area from
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`the proposed project; (3) other actions—past, present, and proposed, and reasonably
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`foreseeable—that have had or are expected to have impacts in the same area; (4) the impacts or
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`expected impacts from these other actions; and (5) the overall impact that can be expected if the
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`individual impacts are allowed to accumulate.” Del. Riverkeeper Network v. Fed. Energy Regul.
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`Comm’n, 753 F.3d 1304, 1319 (D.C. Cir. 2014) (quoting Grand Canyon Trust v. F.A.A.,
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`290 F.3d 339, 345 (D.C. Cir. 2002)).
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`50.
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`Cumulative impact analyses are insufficient when they discuss only the direct
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`effects of the project at issue on a small area and merely contemplate other projects but have no
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`quantified assessment of their combined impacts. Bark v. U.S. Forest Serv., 958 F.3d 865, 872
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`(9th Cir. 2020).
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`51.
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`“The impact of greenhouse gas emissions on climate change is precisely the kind
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`of cumulative impacts analysis that NEPA requires agencies to conduct.” Ctr. for Biological
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`Diversity v. Nat’l Highway Traffic Safety Admin., 508 F.3d 508, 550 (9th Cir. 2007).
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`52.
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`NEPA calls for a quantification of the incremental impacts that the proposed
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`project’s emissions will have on climate change or on the environment more generally in light of
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`other past, present, and reasonably foreseeable actions. See Ctr. for Biological Diversity v. Nat’l
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`Highway Traffic Safety Admin., 538 F.3d 1172, 1216 (9th Cir. 2008). NEPA requires analysis of
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`the “actual environmental effects resulting from those emissions.” Id.
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`53.
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`NEPA requires consideration of separate components of a single project in a
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`single NEPA review. 40 C.F.R. § 1508.25 (2019). NEPA regulations state that connected actions
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`should be considered in a single EIS, defining them as actions that “cannot or will not proceed
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`unless other actions are taken previously or simultaneously,” and “are interdependent parts of a
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`larger action and depend on the larger action for their justification.” Id.
`
`54.
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`NEPA requires federal agencies to analyze “both the probability of a given harm
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`occurring and the consequences of that harm if it does occur.” New York v. Nuclear Regul.
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`Comm’n, 681 F.3d 471, 482 (D.C. Cir. 2012).
`
`55.
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`Agencies cannot avoid their responsibility to consider future effects by claiming
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`they are uncertain, because NEPA requires some element of predictive behavior. N. Plains Res.
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`Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1078–79 (9th Cir. 2011); see also 40 C.F.R.
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`§ 1502.22 (2019).
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`56.
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`Federal courts have found that NEPA requires analysis of the risk that an oil spill
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`will occur and an assessment of the potential impacts of a spill on particular resources and into
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`Corps jurisdictional waterways. See, e.g., Ocean Advocates v. U.S. Army Corps of Eng’rs,
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`Case 1:20-cv-03817 Document 1 Filed 12/24/20 Page 17 of 49
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`402 F.3d 846, 867–68 (9th Cir. 2005) (Corps was required to analyze effects of increased tanker
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`traffic, and attendant risks of oil spills, before issuing Section 404 permit for dock extension);
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`Sierra Club v. Sigler, 695 F.2d 957, 968–75 (5th Cir. 1983) (Corps violated NEPA in issuing a
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`permit for a dredging project by failing to analyze worst-case scenario of oil tanker spill);
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`Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 255 F. Supp. 3d 101, 133–34 (D.D.C.
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`2017) (EA inadequate because it did not describe the potential impacts of an oil spill on specific
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`tribal hunting and fishing rights).
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`57.
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`In addition, NEPA mandates that agencies analyze cultural resource impacts in
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`environmental impact statements. 40 C.F.R. §§ 1502.16(g) (2019), 1508.8 (2019).
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`58.
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`“NEPA procedures must insure that environmental information is available to
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`public officials and citizens before decisions are made and before actions are taken.” Id.
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`§ 1500.1(b) (2019). Agencies are required to make environmental documents, including
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`environmental assessments and findings of no significant impact, available to the public. Id.
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`§§ 1501.4(e)(1) (2019), 1506.6(b) (2019), 1508.10 (2019).
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`59.
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`An agency’s failure to include and analyze information that is important,
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`significant, or essential renders an EA and FONSI inadequate. See id. § 1500.1 (2019).
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`60.
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`The Corps’ regulations incorporate these requirements by reference. 33 C.F.R.
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`Pt. 325, App. B § 2.
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`61.
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`The Corps’ regulations explain that the scope of a NEPA analysis includes the
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`impacts of the specific activity requiring a Corps permit and “those portions of the entire project
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`over which the district engineer has sufficient control and responsibility to warrant Federal
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`review.” Id., App. B § 7(b)(1).
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`62.
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`The Corps’ regulations provide that the NEPA analysis should include direct,
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`indirect and cumulative impacts. Id, App. B § 7(b)(3).
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`63.
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`The Corps’ regulations further state: “In all cases, the scope of analysis used for
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`analyzing both impacts and alternatives should be the same scope of analysis used for analyzing
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`the benefits of a proposal.” Id.
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`II.
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`THE CLEAN WATER ACT
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`64.
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`Congress enacted the Clean Water Act “to restore and maintain the chemical,
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`physical, and biological integrity of the Nation’s waters.” CWA § 101(a), 33 U.S.C. § 1251(a).
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`65.
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`The Clean Water Act also established, as part of the Corps’ water resources
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`d