NATIONAL WILDLIFE FEDERATION, Plaintiff-Appellee,
v.
SECRETARY OF THE UNITED STATES DEPARTMENT OF TRANSPORTATION; Administrator of the Pipeline & Hazardous Materials Safety Administration, in their official capacities (19-1609), Defendants-Appellants,
Enbridge Energy, Limited Partnership (19-1610), Intervening Defendant-Appellant.
United States Court of Appeals, Sixth Circuit.https://leagle.com/images/logo.png
Argued: April 9, 2020.
Decided and Filed: June 5, 2020.
Attorney(s) appearing for the Case
ARGUED: Jeffrey Bossert Clark , UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Federal Appellants. David H. Coburn , STEPTOE & JOHNSON LLP, Washington, D.C., for Appellant Enbridge. Oday Salim , UNIVERSITY OF MICHIGAN LAW SCHOOL, Ann Arbor, Michigan, for Appellee. ON BRIEF: Jeffrey Bossert Clark , Avi Kupfer , UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Federal Appellants. David H. Coburn , Joshua H. Runyan , STEPTOE & JOHNSON LLP, Washington, D.C., Phillip J. DeRosier , DICKINSON WRIGHT PLLC, Detroit, Michigan, for Appellant Enbridge. Oday Salim , UNIVERSITY OF MICHIGAN LAW SCHOOL, Ann Arbor, Michigan, for Appellee. Kirsten L. Nathanson , CROWELL & MORING LLP, Washington, D.C., Bruce T. Wallace , HOOPER HATHAWAY, P.C., Ann Arbor, Michigan, Ann Alexander , NATURAL RESOURCES DEFENSE COUNCIL, San Francisco, California, Lindsay P. Dubin , DEFENDERS OF WILDLIFE, Washington, D.C., Ross A. Hammersley , OLSON, BZDOK & HOWARD, P.C., Traverse City, Michigan, for Amici Curiae.
THAPAR, J., delivered the opinion of the court in which LARSEN, J., joined. MERRITT, J. (pp. 880-83), delivered a separate dissenting opinion.
OPINION
THAPAR, Circuit Judge.
Discretion and judgment are not the same thing. The question here is whether an agency has discretion to consider environmental criteria not listed in a statute simply because the agency exercises some degree of judgment when it considers the statutory criteria. The district court thought that to be so and...
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