The Clean Water Act; The Endangered Species Act; The National Environmental Policy Act; The Clean Water Act requirement that oil pipeline operators submit response plans addressing the risk of a potential oil spill; 33 USC § 1321(j)(5)(A)(i); 49 CFR § 194.101(a); § 1321(j)(5)(E)(iii); Sierra Club v. U.S. Forest Serv.; Whether the defendant-Department of Transportation was required to comply with the Endangered Species Act before approving the response plan; 16 USC § 1536(a)(2); 50 CFR § 402.03; National Ass’n of Home Builders v. Defenders of Wildlife; 33 USC § 1342(b); “Discretion” & “judgment”; Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv.; Sierra Club v. Federal Energy Regulatory Comm’n (DC Cir.); Florida Key Deer v. Paulison (11th Cir.); Dorris v. Absher; Pittman v. Experian Info. Solutions, Inc.; Rulemaking authority; Manhattan Gen. Equip. Co. v. Commissioner; 49 CFR §§ 194.5 & 194.115(a); “Consistent”; NL Indus., Inc. v. Kaplan (9th Cir.); An annex; §§ 300.210(c)(4)(i) & (ii)(I); Whitman v. American Trucking Ass’ns; Whether defendant was required to prepare an environmental impact statement under the National Environmental Policy Act; 42 USC § 4332(C); Department of Transp. v. Public Citizen; Pacific Legal Found. v. Andrus; Sierra Club v. Babbitt (9th Cir.); Alaska Wilderness League v. Jewell (9th Cir.)

[This appeal was from the ED-MI.] The court reversed summary judgment for plaintiff-National Wildlife Federation on its claims against defendant-Secretary of Transportation (the agency) and intervening defendant-Enbridge Energy arising from the “Line 5” pipeline, holding that neither the Endangered Species Act nor the National Environmental Policy Act required the agency to consider environmental criteria not listed in the Clean Water Act. Enbridge was required to submit plans detailing its prospective response to an oil spill in the Straits of Mackinac. The Secretary approved those plans, but the National Wildlife Federation sued for violations of the Clean Water Act and other statutes. The district court found that Enbridge had satisfied the Clean Water Act’s enumerated criteria for response plans, but granted the Federation summary judgment, ruling that the agency was required to comply with the Endangered Species Act and the National Environmental Policy Act before it could approve the plans. The court considered the Endangered Species Act’s requirement that federal agencies consult with environmental authorities before approving a plan. It held that under Supreme Court precedent, Home Builders, the requirement only applied to “discretionary” agency actions, and that approving a plan was a statutory requirement when the criteria are met. The court rejected the Federation’s attempt to argue that the agency “has ‘discretion’ because it exercises some degree of ‘judgment’ when it evaluates the enumerated criteria.” The court concluded that Home Builders foreclosed this reasoning. Thus, the court held that the agency was not required to comply with the Endangered Species Act’s consultation requirement. It also held that the agency was not required to comply with the National Environmental Policy Act’s requirement for an environmental impact statement, concluding that “like the consultation requirement, the impact-statement requirement does not apply to all major agency actions; it applies only to discretionary ones.” The court found that the agency was not required to consider environmental criteria not listed in the Clean Water statute “simply because the agency exercises some degree of judgment when it considers the statutory criteria.” Remanded.