NEPA, Federal Permitting, and Permitting Litigation

The federal permitting and National Environmental Policy Act (NEPA) processes can be a source of great controversy and delay, as demonstrated by the Keystone XL Pipeline and Dakota Access Pipeline matters.  Steptoe’s lawyers have extensive experience assisting clients with the strategic development of complex projects, including a full-range of land use, permitting, and environmental review issues.  Our goal is to reduce the potential for project delay, and to ensure that agency decisions will be defensible if challenged.  If challenges are filed, we intervene on behalf of applicants to ensure the project is not enjoined during the litigation, and to help defend the agency’s permitting decision.  Our clients include a wide array of railroad, pipeline, mining, energy, and transportation companies.

We advise our clients with respect to permitting before a wide range of agencies, including:

  • Advisory Council on Historic Preservation (ACHP)
  • Federal Railroad Administration (FRA)
  • Surface Transportation Board (STB)
  • US Department of State 
  • US Army Corps of Engineers (USACE)
  • US Forest Service (USFS)
  • Bureau of Land Management (BLM)
  • Bureau of Indian Affairs (BIA)
  • US Department of Energy (DOE)
  • US Environmental Protection Agency (EPA)
  • US Coast Guard (USCG)
  • US Fish and Wildlife Service (USFWS)
  • National Oceanic and Atmospheric Administration (NOAA)

NEPA Process:  Our attorneys represent clients throughout the environmental review process – from the development of a project concept to the issuance of an Environmental Impact Statement and the agency’s record of decision.  We advise clients on strategies to streamline NEPA and permitting, as well as ensuring that the agency’s process will withstand judicial scrutiny. 

Inter-Agency and Tribal Consultations:  We help manage permitting consultations and inter-agency disputes, including:

  • Consultations under the Endangered Species Act (ESA) and Migratory Bird Treaty Act (MBTA) with the USFWS and National Marine Fisheries Service (NMFS), including completion of biological opinions and incidental take statements;
  • Section 106 consultations under the National Historic Preservation Act (NHPA) with State Historic Preservation Officers, Native American tribes, and the Advisory Council on Historic Preservation, including the negotiation and implementation of Memoranda of Agreements and Programmatic Agreements to resolve cultural resource concerns with respect to highly controversial projects;
  • Coastal Zone Management Act (CZMA) consistency determinations, including advocacy at NOAA and state agencies.

Litigation:  Litigation challenging federal permit decisions for major projects has become increasingly frequent.  Our lawyers have significant experience handling litigation concerning the environmental review for major projects, including under NEPA, the Clean Water Act (CWA), the ESA, and Section 106 of the NHPA.  We often intervene on behalf of applicants in such cases to ensure the project is not enjoined during the litigation, and to help defend the permitting decision on the merits.

Representative Matters

Representative Matters:

  • All Aboard Florida Rail Line: Representing a company that is seeking to construct and operate a passenger line in Florida.  Steptoe has successfully defended legal challenges to agency decisions concerning the NEPA and NHPA review process for the rail line.  
  • Alberta Clipper Pipeline: Represented a major pipeline company in connection with its planned construction of a cross-border pipeline between the US and Canada.  Firm lawyers successfully defended the NEPA document prepared by the agencies in US federal district court.  See Sierra Club v. Clinton, 689 F. Supp. 2d 1147 (D. Minn. 2010).
  • Flanagan South Pipeline: Successfully represented a pipeline company in the DC District Court and DC Circuit concerning a CWA and NEPA-based challenge to federal agency permits.  See Sierra Club v. US Army Corps of Engineers, et al., 14-5205. Doc. 1575370 (DC Cir. 2015).    
  • International Crude Oil Pipeline Interconnections: Obtained successful summary judgment decision in litigation challenging the Department of State’s decision regarding pipeline interconnections.  See White Earth, et al. v. US Department of State, et al., 14-cv-4726 (D. Minn., filed 2014).
  • Crude Oil Pipeline Crossing of US National Forest: Successfully defeated a challenge and subsequent appeal by an environmental non-governmental organization to invalidate a US Forest Service permit that authorizes a pipeline to cross a National Forest in Michigan.  See Sierra Club v. US Forest Service, 15-cv-2457, Doc. 30-1 (6th Cir. June 30, 2016). 
  • Oil and Gas Leasing: Successfully represented an energy client with respect to litigation challenging the Secretary of the Interior’s NEPA process regarding and oil and gas leasing decision in Alaska.
  • Gasification Facilities: Assisted developer through the NEPA process for a gasification facility that would use petroleum coke to produce methanol and capture/sequester carbon dioxide.  Steptoe lawyers assisted the client in its dealings with the US Department of Energy and in preparation of an EIS that address a wide range of issues, including greenhouse gas emissions.
  • Riverview Trenton Railroad: Successfully defended the sufficiency of the environmental review before the Sixth Circuit.  City of Riverview v. STB, 398 F.3d 434 (6th Cir. 2005). 
  • Southwest Gulf Railroad: Assisted a major aggregate firm in its successful efforts to obtain approval of a controversial rail line in Texas, including complex cultural resources issues, and successfully defended the agency’s decision before the Fifth Circuit.  Medina County Environmental Action Ass. v. STB, 602 F.3d 687 (5th Cir. 2010).

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