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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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`FRIENDS OF THE HEADWATERS,
`17456 Half Moon Rd
`Park Rapids, MN 56470
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`Plaintiff,
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`v.
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`UNITED STATES ARMY CORPS OF
`ENGINEERS; COL. KARL JANSEN,
`District Engineer, St. Paul District,
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`__________________________________
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`Defendant.
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`Plaintiff FRIENDS OF THE HEADWATERS for its Complaint alleges and states as
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`follows:
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`INTRODUCTION
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`1.
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`This is a civil action alleging violations of the National Environmental Policy Act
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`(“NEPA”), 42 U.S.C. § 4331 et seq., and the Clean Water Act (“CWA”), 33 U.S.C. § 1344.
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`2.
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`Friends of the Headwaters seeks declaratory and injunctive relief under the judicial
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`review provisions of the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–706.
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`3.
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`This complaint challenges permits issued by Defendants United States Army Corps of
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`Engineers (“Corps”) and its St. Paul District Engineer Col. Karl Jansen in late 2020 allowing
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`Enbridge Energy, Limited Partnership (“Enbridge”) to construct a new crude oil pipeline running
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`across northern Minnesota (“the Line 3 oil pipeline”) for 338 miles to Superior, Wisconsin.
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`4.
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`On November 23rd, 2020, the Corps issued its “Decision Document.” The document
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`includes the environmental assessment (EA) undertaken by the Corps evaluating the impacts of
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`1
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`Case 1:21-cv-00189 Document 1 Filed 01/21/21 Page 2 of 23
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`those portions of the Line 3 oil pipeline project the Corps chose to consider, its finding of no
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`significant impact (FONSI), that there are no significant environmental impacts from those
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`portions of the project, its public interest review, and its reasons for issuing the permits Enbridge
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`requested. This Decision Document is attached as Exhibit A to this Complaint. Exhibit A,
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`Decision Document, Nov. 23, 2020.
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`5.
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`The decision document was not made available until December 9, 2020 when the
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`Corps responded to a Freedom of Information Act request.
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`6.
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`The construction of the Line 3 oil pipeline will have significant adverse
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`environmental impacts on rivers, lakes, streams, and wetlands in the Headwaters of the
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`Mississippi River region and along its route.
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`7.
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`The construction of the Line 3 oil pipeline will have significant adverse
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`environmental impacts on Lake Superior and its watershed.
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`8.
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`The construction of the Line 3 oil pipeline will require trenching through or tunneling
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`under 227 waterbodies and over 800 protected wetlands along its route in Minnesota.
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`9.
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`The Defendant Corps nonetheless issued permits for the Line 3 oil pipeline without
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`conducting an Environmental Impact Statement (“EIS”) as required by NEPA.
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`10.
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`The Defendant Corps found in its decisional documents that the portions of the Line 3
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`oil pipeline project the Corps chose to consider would have no significant environmental
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`impacts.
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`11.
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`The Defendant Corps’ permits failed to comply with the CWA “404(b)(1)
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`Guidelines,” 40 C.F.R. pt. 230.
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`12.
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`The Corps improperly deferred to decisions made by state utility regulators instead of
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`doing its own environmental analysis under the NEPA and the CWA.
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`2
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`Case 1:21-cv-00189 Document 1 Filed 01/21/21 Page 3 of 23
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`13.
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`Enbridge was responsible for the massive spill of more than 1 million gallons of
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`Canadian “tar sands” oil from its “Line 6B” oil pipeline into the Kalamazoo River near Marshall,
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`Michigan on July 25, 2010, which created extensive ecological, wildlife, environmental and
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`property damage, and kept the River closed for two years.
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`14.
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`Enbridge’s Line 6B oil spill required a cleanup effort over many years that cost
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`billions of dollars.
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`15.
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` In 2016, Enbridge was fined $61 million as part of an overall $177 million settlement
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`with the U.S. Environmental Protection Agency and U.S. Department of Justice for Enbridge’s
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`massive 2010 oil spill into the Kalamazoo River.
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`16.
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`The Corps did not consider less environmentally damaging practicable alternatives in
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`approving permits for the Line 3 oil pipeline across Minnesota.
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`17.
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`The Corps did not consider the risks of a catastrophic Line 3 oil spill like Enbridge’s
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`massive 2010 Line 6B oil spill into the Kalamazoo River in Michigan.
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`18.
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`The Corps did not consider the potential lifecycle climate impacts from putting the
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`Line 3 oil pipeline into service.
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`19.
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`These Corps permits fail to comply with the requirements of both NEPA and the
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`CWA.
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`20.
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`The Corps’ decision to issue the permits was thus arbitrary and capricious, and
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`contrary to law.
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`21.
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`Therefore, the Court must vacate the Corps permits, and must enjoin Enbridge from
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`proceeding further with construction of its Line 3 oil pipeline.
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`3
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`Case 1:21-cv-00189 Document 1 Filed 01/21/21 Page 4 of 23
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`JURISDICTION AND VENUE
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`22.
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` This Court has federal question jurisdiction under 28 U.S.C. § 1331, as this action
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`presents a controversy under federal laws including NEPA and the CWA, and their
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`implementing regulations, and the APA.
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`23.
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`The court also has jurisdiction under 28 U.S.C. § 1346 because the United States is
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`the Defendant.
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`24.
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`The relief requested is authorized by 28 U.S.C. §§ 2201(a) (declaratory) and 2202
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`(injunctive), and by the APA, 5 U.S.C. § 706.
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`25.
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`Venue is appropriate in this district under 28 U.S.C. § 1391(e) because the Defendant
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`Corps’ headquarters is located in this district.
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`PARTIES
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`26.
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`Plaintiff Friends of the Headwaters is a not-for-profit membership-based organization
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`under section 501(c)(3) of the Internal Revenue Code dedicated to informing and educating
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`citizens about the environmental risks of Enbridge’s proposed oil pipelines, and the threats posed
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`by the Line 3 oil pipeline in the Headwaters of the Mississippi River region.
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`27.
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`The Line 3 oil pipeline creates risks and threats of environmental harm to lakes,
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`streams, wetlands, wild rice (zizania palustris; z. aquatica) stands, drinking water supplies, and
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`wildlife in northern Minnesota’s “Land of 10,000 Lakes.”
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`28.
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`Friends of the Headwaters’ organizational mission has been impaired by Defendant
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`Corps’ failure to conduct and complete an EIS under NEPA and a permitting review that fully
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`and fairly assesses potential environmental impacts, evaluates less environmentally damaging
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`alternatives, considers potential mitigation measures, and addresses whether the project is in the
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`public interest.
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`4
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`Case 1:21-cv-00189 Document 1 Filed 01/21/21 Page 5 of 23
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`29.
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`Friends of the Headwaters’ members live, work, and enjoy recreational activities near
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`the Line 3 oil pipeline’s proposed route, and they are and will be suffering loss of property
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`values and loss of recreational opportunities from both construction and operation of the Line 3
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`oil pipeline if it is built.
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`30.
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`Construction and operation of the Line 3 oil pipeline would permanently alter the
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`hydrology of numerous wetlands and change the character of the natural environment in the
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`Headwaters of the Mississippi River region.
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`31. Many Friends of the Headwaters members are avid hikers, hunters, anglers, skiers,
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`bird watchers, and naturalists who use the outdoors for recreational activities and enjoy the
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`aesthetics of the environment of the Headwaters of the Mississippi River region through which
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`the Line 3 oil pipeline is planned to be sited.
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`32.
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`The trenching, tunneling, and clear-cutting required to construct the Line 3 oil
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`pipeline, and the presence of the oil pipeline, once built, will irreparably alter the natural
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`environment of rivers, streams, wetlands, and wildlife habitats that Friends of the Headwaters
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`members use and enjoy for recreational activities.
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`33.
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`These areas will also be at greater risk of contamination from an oil spill or leak if the
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`Line 3 oil pipeline is built.
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`34. Many Friends of the Headwaters members draw their drinking water supplies from
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`aquifers, lakes, and rivers that the Line 3 oil pipeline will cross, trench through, or bore under.
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`These drinking water resources will be at greater risk of contamination, both from construction
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`and from potential oil spills and leaks if the Line 3 oil pipeline is built.
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`35. Many Friends of the Headwaters members have spent their lives in Northern
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`Minnesota, raised their families there, and intend to keep living there.
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`5
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`Case 1:21-cv-00189 Document 1 Filed 01/21/21 Page 6 of 23
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`36.
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`The following Declarations of Friends of the Headwaters’ members are incorporated
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`by reference and attached as exhibits pursuant to Fed. R. Civ. P. 10(c): Exhibit B Decl. of Lowell
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`Schellack, December 19, 2020; Exhibit C, Decl. of Elizabeth Baker Knutilla, December 19,
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`2020; Exhibit D, Decl. of Maurice Spangler, December 21, 2020; Exhibit E, Decl. of Douglas
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`Rasch, January 5, 2021; and Exhibit F, Decl. of Richard Smith, January 14, 2021.
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`37.
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`Friends of the Headwaters members’ recreational and aesthetic interests in
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`Headwaters of the Mississippi River region, and their interest in safe clean drinking water,
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`cannot be adequately protected in the Corps permitting process for the Line 3 oil pipeline
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`without a thorough independent scientific review of the potential environmental and
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`socioeconomic risks, consideration of less environmentally damaging practicable alternatives,
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`evaluation of potential mitigation measures, and the required public interest review.
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`38.
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`Defendant United States Army Corps of Engineers is an agency within the executive
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`branch of the federal government. Defendant Col. Karl Jansen is the district engineer for the
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`Corps’ St. Paul District, which processed the permits at issue in this case.
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`39.
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`Defendant Corps is authorized by section 404 of the CWA to grant permits allowing
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`discharges of dredged or fill material into waters of the United States, and under section 10 of the
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`Rivers and Harbors Act of 1899 for work in navigable waters.
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`40.
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`Defendant Corps must comply with the environmental review provisions of NEPA
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`and all applicable NEPA regulations before making any permitting decisions for the Line 3 oil
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`pipeline.
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`6
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`Case 1:21-cv-00189 Document 1 Filed 01/21/21 Page 7 of 23
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`FACTUAL AND PROCEDURAL BACKGROUND
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`41.
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`In 2010, Enbridge was responsible for the largest inland oil spill in United States
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`history when its Line 6B oil pipeline burst open and spilled into the Kalamazoo River near
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`Marshall, Michigan, causing substantial environmental, ecological harms, and property damage.
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`42.
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`Enbridge’s Line 6B oil pipeline spill cost more than $1 billion to clean up, and that
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`environmental remediation took many years.
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`43.
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`Enbridge is now proposing to build a new 36-inch-diameter crude oil pipeline over
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`338 miles from the northwest corner of Minnesota to a terminal in Clearbrook, Minnesota, then
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`south past Itasca State Park where the Headwaters of the Mississippi River are located, then to
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`Park Rapids, Minnesota, and then east on a new route to Enbridge’s oil terminal in Superior,
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`Wisconsin just across the state border and near the shore of Lake Superior.
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`44.
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` This map shows the proposed route of the Line 3 oil pipeline in Minnesota:
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`Case 1:21-cv-00189 Document 1 Filed 01/21/21 Page 8 of 23
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`MINN. PUB. UTIL. COMM’N., ENBRIDGE LINE 3 REPLACEMENT PROJECT: PROJECT SUMMARY
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`INTERACTIVE MAP, https://mn.gov/puc/line3/summary/.
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`45.
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`About half of the Line 3 oil pipeline in Minnesota will be routed on a new corridor
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`away from Enbridge’s existing Mainline pipelines.
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`46.
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`The Line 3 oil pipeline will mostly carry heavy, high-sulfur “diluted bitumen”
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`(“dilbit”) from the “tar sands” area in northern Alberta, Canada.
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`47.
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`The Line 3 oil pipeline’s capacity will initially be approximately 760,000 barrels per
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`day (“bpd’), with an ultimate “nameplate” design capacity of 1,016,000 bpd.
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`48.
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`Almost all of the oil through the Line 3 oil pipeline will go to refineries and export
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`terminals outside of Minnesota. From the Superior, Wisconsin oil terminal, almost all of the
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`heavier dilbit oil will then be moved through other Enbridge pipelines south through Wisconsin
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`into Illinois. Then, some of the dilbit will go to refineries east of Chicago or in Ontario, while
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`most of the dilbit will go to refineries and export terminals along the U.S. Gulf Coast and
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`shipped to global markets.
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`49.
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`Construction of the Line 3 oil pipeline will require trenching through or tunneling
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`under 227 waterbodies and more than 800 protected wetlands in Minnesota. Those construction
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`activities will cause additional suspension of solids, sedimentation, altered hydrology, and
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`erosion.
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`50. Where Enbridge proposes to use “horizontal directional drilling” to tunnel under
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`waterbodies or wetlands, there is also the risk that materials used to keep the tunnel open will
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`“frac out” and be released into and contaminate the environment, as has happened in previous
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`Minnesota pipeline projects.
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`8
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`Case 1:21-cv-00189 Document 1 Filed 01/21/21 Page 9 of 23
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`51.
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`Contamination from construction activities on the Line 3 oil pipeline will likely
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`impair fish, wildlife, and plant habitats along the proposed oil pipeline route.
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`52.
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`Construction activities and resulting contamination also threaten surface and
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`groundwater resources used for drinking water, particularly in the sandy shallow aquifer region
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`in Minnesota.
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`53.
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`In addition, the Line 3 oil pipeline will require: clear-cutting trees along a 95 to 125-
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`foot wide right-of-way; stockpiling of pipe segments in sensitive habitats; heavy equipment on
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`narrow rural roads; construction of ancillary and temporary facilities; road construction; and
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`permanent cutting and control of vegetation along a 50-foot right-of-way along the Line 3 oil
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`pipeline’s entire route.
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`54.
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`Once operation commences, any resulting crude oil spill—and particularly spills of
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`diluted bitumen—could devastate entire ecosystems, cost billions of dollars to remediate, and
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`pose a significant threat to human health.
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`55.
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`A spill from the Line 3 oil pipeline at any of the waterbody or wetland crossings
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`could cause serious and irreparable environmental and wildlife damages.
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`56.
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`A spill from the Line 3 oil pipeline that reaches the Mississippi River or Lake
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`Superior could cause catastrophic and irreparable ecological, economic, and environmental
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`damages.
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`57.
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` Diluted bitumen is heavier than many other crude oils and more likely to sink to the
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`bottom of waterbodies, adhere to suspended particulates, stick to lakebed and lakeshore surfaces,
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`and harm fish, wildlife, and plants.
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`58.
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`Remediation of diluted bitumen oil spills is very difficult and very costly.
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`Case 1:21-cv-00189 Document 1 Filed 01/21/21 Page 10 of 23
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`59.
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` If built and put into operation, the Line 3 oil pipeline will also facilitate increased
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`extraction and consumption of Canadian tar sands oil, which will increase greenhouse gas
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`emissions.
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`60. Minnesota and its citizens are currently harmed by the impacts of global climate
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`change, including increased severe flooding, increased risk of severe drought, habitat loss for
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`native plants and animals, and agricultural yield reductions.
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`61.
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`These potential adverse environmental impacts attributable to the Line 3 oil pipeline
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`threaten members of Friends of the Headwaters with imminent and irreparable injury to their
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`aesthetic, recreational, ecological, and property interests.
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`62.
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`The potential adverse environmental impacts from construction and operation of the
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`pipeline will change the natural environment in which Friends of the Headwaters members
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`recreate and diminish the value of their property due to the risk of an oil spill.
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`63.
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`The potential adverse environmental and climatic impacts will negatively affect the
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`fish that members catch and eat, the water they drink, and the value of their property along the
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`proposed Line 3 oil pipeline route.
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`64.
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`On September 21, 2018, Enbridge applied to the Corps for permits under section 404
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`of the Clean Water Act and section 10 of the Rivers and Harbors Act to allow construction of the
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`Line 3 oil pipeline through Minnesota.
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`65.
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`66.
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`In January 2020, Enbridge submitted additional application materials to the Corps.
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`Enbridge’s application materials contained almost no information about potential
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`alternatives including repair and enhancement of Enbridge’s existing “Mainline” pipeline
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`system, or less environmentally damaging alternative routes that would pose much less harms,
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`risks, and threats to lakes, wetlands, rivers, and other fragile freshwater resources.
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`10
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`Case 1:21-cv-00189 Document 1 Filed 01/21/21 Page 11 of 23
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`67.
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`Enbridge’s application materials did not explain its choices of methods for each water
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`crossing.
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`68.
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`Enbridge’s application materials did not establish that the methods chosen were the
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`least environmentally damaging options and alternatives available.
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`69.
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`70.
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`The Corps acknowledged that it relied on the information provided by Enbridge.
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`The Corps did not do any independent evaluation of reasonable alternatives or of
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`Enbridge’s construction choices.
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`71.
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`The Corps did not do any independent evaluation of less environmentally damaging
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`alternatives to Enbridge’s construction choices.
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`72.
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`The Corps did not prepare an Environmental Impact Statement for the Line 3 oil
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`pipeline or any part of it.
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`73.
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`On November 23rd, 2020, however, the Corps announced that it was granting
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`Enbridge its requested section 404 and section 10 permits.
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`74.
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`The Corps prepared a document it called an “Environmental Assessment, Section
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`404(b)(1) Guidelines Evaluation, Public Interest Review, and Statement of Findings” for the
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`Line 3 oil pipeline (the “Decision Document”).
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`75.
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`The Corps did not make this Decision Document available until December 9, 2020,
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`when it responded to a Freedom of Information Act request.
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`76.
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`The Corps conceded that its review did “not extend to the entire pipeline construction,
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`or operation” because it claimed it did “not have sufficient control and responsibility over the
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`entire project.” Decision Document at 13-14.
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`Case 1:21-cv-00189 Document 1 Filed 01/21/21 Page 12 of 23
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`77.
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`The Corps stated that its “public interest” review contained in the EA was sufficient
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`to satisfy the requirements of NEPA but the Corps relied on data that Enbridge provided rather
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`than conduct its own public interest analysis. Decision Document, Appx. A, at 6.
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`78.
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`The Corps’ review was limited to only certain water crossing segments of the Line 3
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`oil pipeline.
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`79.
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`The Corps did not fully and fairly analyze all direct and indirect impacts of the Line 3
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`oil pipeline.
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`80.
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`The Corps did not fully and fairly analyze the cumulative environmental impacts of
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`the Line 3 oil pipeline when added to all other past, present, and reasonably foreseeable future
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`actions.
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`81.
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`The Corps’ review of wetland impacts was limited to the acreage to be directly
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`trenched or excavated.
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`82.
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`The Corps did not review direct or indirect impacts on hydrologically connected trout
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`streams, wild rice, lakes, wetlands, or waters of high or outstanding biological significance,
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`beyond those in the acreage to be directly trenched or excavated.
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`83.
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`The Corps did not consider the potential of oil spills from the Line 3 oil pipeline,
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`alternatives to limit the risk of oil spills, or potential mitigation of oil spill risks, other than to
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`note that oil spills from railcars or trucks occur more often but at considerably lower volumes
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`than pipeline spills. Decision Document at 20, 25-26.
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`84.
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`The Corps stated that consideration of potential oil spills was beyond the scope of its
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`regulatory authority. Decision Document, Appx. A, at 3.
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`Case 1:21-cv-00189 Document 1 Filed 01/21/21 Page 13 of 23
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`85.
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`The Corps stated that it “does not regulate the overall construction or operation of
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`pipelines, nor does it regulate the siting of any type of pipeline/utility line, or any substance
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`within a pipeline.” Decision Document, Appx. A, at 4.
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`86.
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`The Corps claims the “social costs of carbon pollution are not within the Corps’
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`regulatory authority.” Decision Document, Appx A, at 4.
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`87.
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`88.
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`FIRST CAUSE OF ACTION:
`NATIONAL ENVIRONMENTAL POLICY ACT (“NEPA”)
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`Plaintiff realleges each of the allegations in the preceding paragraphs.
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`The National Environmental Policy Act, 42 U.S.C. § 4331 et seq., requires that all
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`federal agencies, including the Corps, take a “hard look” at environmental consequences before
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`taking a major federal action.
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`89.
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`90.
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`The Corps’ approval of a permit for the Line 3 oil pipeline is a major federal action.
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`The NEPA “hard look” requires that federal agencies “have available, and carefully
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`consider, detailed information concerning significant environmental impacts” before approving a
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`project. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989).
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`91.
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` NEPA requires that federal agencies “guarantee [] that the relevant information [on
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`environmental impacts] will be made available to the larger audience,” including the general
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`public and organizations such as Friends of the Headwaters, so they may play a meaningful “role
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`in the decision-making process and the implementation of the decision.” Id.
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`92.
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`Before taking any “major Federal actions significantly affecting the quality of the
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`human environment,” federal agencies, including the Corps, must prepare a “detailed statement”
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`on “the environmental impact of the proposed action” and “any adverse environmental effects
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`which cannot be avoided should the proposal be implemented.” 42 U.S.C. § 4332(2)(C).
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`93.
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`To determine whether a permit or other federal action may significantly affect the
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`environment, and therefore require that a full EIS be conducted, a federal agency must consider
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`ten factors. 40 C.F.R. § 1508.27 (2019).1 These factors include the degree to which:
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`a.
`b.
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`c.
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`d.
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`e.
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`f.
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`94.
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`The proposed action affects public health or safety;
`The possible effects on the human environment are likely to be highly
`controversial;
`The possible effects on the human environment are likely highly uncertain or
`involve unique or unknown risks;
`The action may establish a precedent for future actions with significant effects or
`represents a decision in principle about a future consideration;
`The action is related to other actions with individually insignificant but
`cumulatively significant impacts; and
`The action may adversely affect an endangered or threatened species or its
`habitat.
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`In Environmental Impact Statements, agencies including the Corps must consider all
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`direct, indirect, and cumulative impacts, and a “range of actions, alternatives, and impacts.” 40
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`C.F.R. § 1508.25 (2019); 33 C.F.R. § 325, App. B(7)(b)(2)(iv)(C)(3).
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`1 The Council on Environmental Quality (CEQ) revised its NEPA regulations after Enbridge
`submitted its application in this case. 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 rules that were in effect during most of the Corps’ environmental review in
`this case. Without express statutory authority to the contrary, rules do not apply retroactively.
`Bower v. Georgetown Univ. Hosp., 488 U.S. 204 (1988). The Corps has incorporated the CEQ
`requirements by reference in its own regulations. 33 C.F.R. § 325, App. B (2). Notwithstanding
`the fact the Corps must apply the rules in effect when its decision was made, President Biden
`recently ordered the CEQ to update its guidance on consideration of greenhouse gas emissions
`from federal actions within the purview of NEPA. EXECUTIVE ORDER ON PROTECTING PUBLIC
`HEALTH AND THE ENVIRONMENT AND RESTORING SCIENCE TO TACKLE THE CLIMATE CRISIS,
`Executive Office of the President, https://www.whitehouse.gov/briefing-room/presidential-
`actions/2021/01/20/executive-order-protecting-public-health-and-environment-and-restoring-
`science-to-tackle-climate-crisis/, (Jan. 20, 2021). There is indication that more changes to the
`regulatory structure requiring deeper consideration of environmental impacts are forthcoming.
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`14
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`Case 1:21-cv-00189 Document 1 Filed 01/21/21 Page 15 of 23
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`95.
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`“Direct” impacts are effects “caused by the action and occur[ring] at the same time
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`and place.” 40 C.F.R. § 1508.8(a) (2019).
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`96.
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` “Indirect” impacts are effects “which are caused by the action and are later in time or
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`farther removed in distance, but are still reasonably foreseeable.” 40 C.F.R. § 1508.8(b).
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`97.
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`“Cumulative” impacts “result from the incremental impact of the action when added
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`to other past, present, and reasonably foreseeable future actions regardless of what agency
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`(Federal or non-Federal) or person undertakes such other actions.” 40 C.F.R. § 1508.7.
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`98.
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`The agency’s cumulative impact analysis serves to assess impacts that might be
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`“individually minor, but collectively significant” over a period of time. 40 C.F.R. § 1508.7.
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`99.
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`“A meaningful cumulative impacts analysis must identify (1) the area in which the
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`effects of the proposed project will be felt; (2) the impacts that are expected in that area from the
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`proposed project; (3) other actions—past, present, and proposed, and reasonably foreseeable—
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`that have had or are expected to have impacts in the same area; (4) the impacts or expected
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`impacts from those other actions; and (5) the overall impact that can be expected if the individual
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`impacts are allowed to accumulate.” Delaware Riverkeeper Network v. FERC, 753 F.3d 1304,
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`1319 (D.C. Cir. 2014).
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`100. NEPA also requires consideration of “connected” actions in a single NEPA review.
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`These are actions that “cannot or will not proceed unless other actions are taken previously or
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`simultaneously” and “are interdependent parts of a larger action and depend on larger action for
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`their justification.” 40 C.F.R. § 1508.25 (2019).
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`101. The Defendant Corps’ regulations require that the NEPA analysis must “address 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.” 33 C.F.R. § 325, App. B(7)(b)(1).
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`102. The Corps must analyze oil spill risks from pipelines as part of its permitting process.
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`E.g. Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 255 F.Supp.3d 101, 133-34
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`(D.D.C. 2017).
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`103. The Line 3 oil pipeline could not go forward in Minnesota unless and until the Corps
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`approved Enbridge’s requested permits.
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`104. The Corps’ analysis of direct impacts foresees that all impacts on wetlands will be
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`temporary and reparable. The Corps reached these conclusions, not based on its own expertly
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`collected data and analysis, but by deferring to state utilities regulators’ analysis.
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`105. There are numerous direct impacts that may go unconsidered if the Corps is permitted
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`to delegate its duty to analyze the environmental impacts of the project to state agencies with less
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`specific expertise in water regulation.
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`106. The Corps unlawfully segmented its NEPA review by separately considering various
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`parts of the Line 3 oil pipeline.
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`107. The Corps did not assess the indirect impacts of the Line 3 oil pipeline, including but
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`not limited to the indirect impacts on waterbodies and wetlands beyond the specific areas being
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`trenched or tunneled under.
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`108. The Corps’ cumulative impacts analysis focused solely on environmental impacts
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`from construction at individual crossings.
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`109. The Corps thus did not conduct a legally sufficient cumulative impacts analysis.
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`110. The Corps failed to fully and fairly evaluate the risks and impacts of oil spills along
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`the Line 3 oil pipeline route, especially at waterbody and wetland crossing points.
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`111. The Corps failed to quantify or adequately evaluate the cumulative impacts on
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`climate change, including the likelihood of increased lifecycle greenhouse gas emissions and
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`their social costs from increased extraction and consumption of Canadian oil likely to result from
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`approval of the Line 3 oil pipeline and connected actions.
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`112. The social costs of climate change include increased flooding in Minnesota causing
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`damage to property owned by members of Friends of the Headwaters and many other people,
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`agencies and organizations, and the diminishment of habitat for animals that the members of
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`Friends of the Headwaters and many other people hunt, fish, and watch for recreational and
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`aesthetic purposes.
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`113. The Corps did not prepare an Environmental Impact Statement for the Line 3 oil
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`pipeline permits in Minnesota.
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`114. The Corps’ decision to not prepare an Environmental Impact Statement, but instead
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`make a “finding of no significant impact,” or “FONSI” (Decision Document at 128), violated
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`NEPA because the Corps failed to fully and fairly consider all direct, indirect, and cumulative
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`impacts from construction and operation of the Line 3 oil pipeline in reaching its decision.
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`115. The Corps violated NEPA by failing to analyze all reasonable alternatives to
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`accomplish the purpose and need of the proposed agency action, as required by 40 C.F.R. §
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`1502.14.
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`116. The Corps did not consider alternatives such as expanding the capacity of Enbridge’s
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`existing Mainline pipelines, alternative routes that would avoid putting important and fragile
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`freshwater resources at risk, or other pipeline projects underway or under consideration to
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`transport crude oil from Alberta to global markets with fewer environmental risks.
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`117. The Corps did not evaluate the “purpose and need” for the Line 3 oil pipeline project
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`in light of current and projected reduced consumer demand for refined petroleum products, or in
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`light of anticipated public policies to reduce reliance on fossil fuels.
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`118. The Corps unlawfully concluded that it could defer to Minnesota state utility
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`regulators to avoid having to independently consider need or any alternatives to the proposed
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`route.
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`119. The Corps’ decision to make a finding of no significant impact and to not prepare an
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`Environmental Impact Statement for the large Line 3 oil pipeline project through some of the
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`most high-value freshwater resources in the United States violated NEPA and applicable NEPA
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`regulations.
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`120.
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` The section 404 permits issued to Enbridge by the Corps to construct the Line 3 oil
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`pipeline are invalid because such permits were not preceded by an environmental review process
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`that complied with NEPA. The Corps’ granting of those permits was therefore arbitrary,
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`capricious, and not in accordance with the law, in violation of the APA. 5 U.S.C. § 706.
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`SECOND CAUSE OF ACTION:
` CLEAN WATER ACT
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`121.
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` Plaintiff realleges the allegations in the preceding paragraphs.
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`122. The purpose of the Clean Water Act (“CWA”) is “to restore and maintain the
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`chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).
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`123. To meet that goal, the CWA prohibits the discharge of dredged or fill material into
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`waters of the United States absent the Corps’ issuance of a permit under section 404 of the
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`CWA. 33 U.S.C. § 1344.
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`124. The Corps may not grant a section 404 permit before taking “all appropriate and
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`practicable steps to avoid and minimize adverse impacts to waters of the United States.” 40
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`C.F.R. § 230.91(c)(2).
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`125. The Corps may not grant a section 404 permit if there is a “practicable