On October 8, the National Wildlife Federation (“NWF”) fulfilled its promise to sue the U.S. Department of Transportation (“DOT”). The lawsuit alleges that for 20 years the DOT has allowed pipelines to operate illegally by failing to issue regulations under section 311(j) of the Clean Water Act (“CWA”), which requires pipeline operators to submit plans detailing response actions to be taken in the event of a worst-case scenario spill. The complaint specifically focuses on pipelines that cross inland navigable waters of the United States. According to the Pipeline and Hazardous Materials Safety Administration, pipelines cross inland bodies of waters at more than 18,000 locations in the United States.
In the complaint, which was filed in the U.S. District Court for the Eastern District of Michigan, the NWF claims that DOT is obligated to issue regulations requiring owners or operators of pipelines, landward of the coast line located in, on, or under any navigable waters of the United States, to prepare and submit to the DOT a facility response plan (“FRP”).
FRPs outline actions to be taken in the event of a worst-case discharge of oil or hazardous substances into waters of the United States. Owners and operators must ensure that they have sufficient resources to cleanup a “worst case discharge” and to mitigate or prevent a substantial threat of such a discharge.
While the lawsuit has national implications, the NWF’s complaint largely focuses on two buried pipelines that connect Lake Michigan to Lake Huron via the Straits of Mackinac, carrying up to 22.7 million gallons of crude oil or natural gas liquids a day. In the lawsuit, the NWF seeks an order to (1) compel DOT to issue the new FRP regulations and (2) set a schedule for the DOT to obtain and review FRPs.