Federal Court Upholds Use Of Categorical Exclusion For Renewal of Special Use Permit

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A federal court recently upheld the Forest Service’s decision that a renewal of a special use permit for an oil pipeline qualified for a categorical exclusion under the National Environmental Policy Act (NEPA).  A categorical exclusion applies to a renewal of a permit if the only changes are administrative, there are no changes to the authorized facilities and there are no increases in the scope or intensity of the authorized activities. The plaintiff argued that the intensity of activities had increased because, for the prior two years, the oil flow had increased by 10%.  However, the court disagreed, finding that the new permit authorized an 8.10 mile right-of-way through the Huron-Manistee National Forest to “operat[e] and maintain[ ] a … steel pipeline … and associated facilities,” and that was the same use authorized by the prior permit.

The plaintiff also argued that the permit had expired so therefore it was not subject to a categorical exclusion.  However, the court rejected this argument, finding that categorical exclusions apply to the “[i]ssuance of a new special use authorization … to replace an existing or expired special use authorization.”  The court also noted that the applicable law stated that, as long as a permittee made a proper application for a new permit, the prior permit does not expire until a decision is made on the application.

Finally, the plaintiff argued that a categorical exclusion did not apply because an endangered songbird was known to occur in the area of the permit.  However, the court held that the mere presence of an endangered species did not preclude the use of a categorical exclusion.  Instead, the Forest Service was required to consider whether there is “a cause-effect relationship between a proposed action” and the species, and if so, “the degree of the potential effect” of the agency action on the species. The court found the agency met this requirement.

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