Club v. United States Army Corps of Engineers

• Decision Date: 14 July 2011
• Docket Number: 10–3456.,Nos. 10–3452,s. 10–3452
• Citation: 645 F.3d 978
• Parties: SIERRA CLUB; National Audubon Society; Audubon Arkansas; Charles Mills, Plaintiffs–Appellees,Granville Parnell, Plaintiff,Yancey Reynolds, Plaintiff–Appellee,v.UNITED STATES ARMY CORPS OF ENGINEERS; Colonel Jeffrey R. Eckstein, In his Official Capacity as Current District Engineer, Vicksburg District, U.S. Army Corps of Engineers, Defendants,Southwestern Electric Power Company, Intervenor defendant-Appellant.Hempstead County Hunting Club, Inc., Plaintiff–Appellee,v.Southwestern Electric Power Company, Defendant–Appellant,United States Army Corps of Engineers; Colonel Jeffrey R. Eckstein, District Engineer, Vicksburg District, U.S. Army Corps of Engineers; United States Department of the Interior; Ken Salazar, Secretary of the United States Department of the Interior; United States Fish and Wildlife Service; Rowan Gould, Acting Director of the United States Fish and Wildlife Service, Defendants.
• Court: U.S. Court of Appeals — Eighth Circuit

645 F.3d 978

SIERRA CLUB; National Audubon Society; Audubon Arkansas; Charles Mills, Plaintiffs–Appellees,Granville Parnell, Plaintiff,Yancey Reynolds, Plaintiff–Appellee,

v.UNITED STATES ARMY CORPS OF ENGINEERS; Colonel Jeffrey R. Eckstein, In his Official Capacity as Current District Engineer, Vicksburg District, U.S. Army Corps of Engineers, Defendants,Southwestern Electric Power Company, Intervenor defendant-Appellant.Hempstead County Hunting Club, Inc., Plaintiff–Appellee,

v.Southwestern Electric Power Company, Defendant–Appellant,United States Army Corps of Engineers; Colonel Jeffrey R. Eckstein, District Engineer, Vicksburg District, U.S. Army Corps of Engineers; United States Department of the Interior; Ken Salazar, Secretary of the United States Department of the Interior; United States Fish and Wildlife Service; Rowan Gould, Acting Director of the United States Fish and Wildlife Service, Defendants.

Nos. 10–3452

10–3456.

United States Court of Appeals, Eighth Circuit.

Submitted: March 15, 2011.Filed: July 14, 2011.

Eric J. Murdock, argued, Andrew J. Turner, Washington, DC, David R. Matthews, Rogers, AR, Kelly M. McQueen, Little Rock, AR, Janet J. Henry, Columbus, OH, on the brief, for Intervenor defendant-Appellant.Richard H. Mays, argued, Heber Springs, AR, Robert B. Wiygul, Clay Joseph Garside, on the brief, New Orleans, LA, for Plaintiffs–Appellees in case no. 10–3452.Frederick W. Addison, III, argued, Nolan C. Knight, Amy L. Rickers, Dallas, TX, Charles R. Nestrud, Heather G. Moody, Shirley Guntharp Jones, Little Rock, AR, on the brief, for Plaintiff–Appellee in case no. 10–3456.Before WOLLMAN, MURPHY and SHEPHERD, Circuit Judges.MURPHY, Circuit Judge.

The Sierra Club and several related parties brought this action against the U.S. Army Corps of Engineers (the Corps) in February 2010, seeking to set aside a Clean Water Act permit (the § 404 permit) the Corps had issued to the Southwestern Electric Power Company (SWEPCO) which planned to construct a new power plant. After SWEPCO intervened as a defendant, the Sierra Club moved to enjoin construction of the plant. The Hempstead County Hunting Club (Hunting Club) filed a similar action against SWEPCO, the Corps, and the U.S. Fish and Wildlife Service (FWS) in July 2010. The plaintiffs alleged that SWEPCO, the Corps, and the FWS failed to comply with the National Environmental Policy Act (NEPA), the Clean Water Act (CWA), the Endangered Species Act (ESA), and Arkansas state law.

The district court ¹ granted only part of the injunctive relief requested in the plaintiffs' motions for a preliminary injunction. It first held that the Sierra Club and the Hunting Club had standing to challenge the activities authorized under the § 404 permit and then that they had satisfied the criteria for a preliminary injunction, including showing a likely threat of irreparable harm and a likelihood of success on the merits. It ordered all “work authorized by the § 404 permit” to “halt immediately.”

Now before the court are SWEPCO's appeals of the preliminary injunctions ordered in each case. SWEPCO argues that the district court lacked subject matter jurisdiction because the plaintiffs had failed to show an injury in fact on their NEPA, CWA, and ESA claims. It also contends that the district court abused its discretion in granting the preliminary injunction. After undertaking a thorough review of the record and the applicable law, we affirm the district court's limited injunction. See Heartland Acad. Cmty. Church v. Waddle, 335 F.3d 684, 689–90 (8th Cir.2003) (standard of review).

I.

SWEPCO conducted a resource planning process in 2005 which concluded that additional energy would be needed in Arkansas, Louisiana, and Texas. It solicited and received approvals from regulatory commissions in each of the states to construct the John W. Turk, Jr. power plant, a 600 megawatt “ultrasupercritical” pulverized coal fired facility. SWEPCO selected a 3,000 acre site in Hempstead County, Arkansas for the project. The site is near commercial pine plantations, agricultural row crop areas, cattle raising operations, railways, and other private lands, and is less than one mile from property owned by the Hunting Club, just across Arkansas Highway 355.

The Hunting Club is a nonprofit corporation whose purposes include protecting and preserving wildlife, habitat, and natural resources in Hempstead County, while the Sierra Club's purpose is to “preserve, protect, and enhance the natural environment.” See, e.g., Sierra Club v. Franklin Cnty. Power of Ill., LLC, 546 F.3d 918, 924 (7th Cir.2008), cert. denied, ––– U.S. ––––, 129 S.Ct. 2866, 174 L.Ed.2d 578 (2009). The Hunting Club owns about 4,300 acres of land, including a 2,315 acre marshy body of water known as Grassy Lake. Grassy Lake forms the floor of an ancient bald cypress forest and is located in an undisturbed area north of the Little River known as the “Little River Bottoms.” Grassy Lake and the Little River Bottoms are home to wildlife including alligators and over 100 species of birds. Members of the Hunting Club and the Sierra Club regularly engage in a wide variety of activities in this area. This includes duck, deer, and turkey hunting, bird watching, alligator spotting, fishing, and other activities involving local and migratory wildlife. See Hempstead Cnty. Hunting Club v. Sw. Elec. Power Co., 558 F.3d 763, 765 (8th Cir.2009).

As part of the construction process, SWEPCO asked the Corps to issue it a permit under § 404 of the Clean Water Act. SWEPCO sought permission to discharge “dredged” or “fill” material into wetlands and stream channels so it could construct ancillary components of the power plant, including roads, a rail line, a coal yard, a cooling water intake structure, water lines, and transmission lines. See 33 U.S.C. § 1344(a). SWEPCO began construction of the plant before the Corps had approved a § 404 permit. Although it had obtained some other state and federal permits, in April 2008 the Corps notified SWEPCO by letter that any work on the project site “prior to issuance of a Section 404 permit would be at your own risk.”

Approximately one year later, on March 6, 2009, the Corps issued SWEPCO a § 404 permit. Three days later SWEPCO notified the Corps that it had already filled 2.47 acres of wetlands as a result of “errors in mapping and flagging of wetland boundaries.” The Corps then withdrew its permit and required SWEPCO to conduct a new survey of wetlands subject to its jurisdiction. SWEPCO submitted a new permit application in July 2009 seeking “after-the-fact” authorization for its prior unauthorized discharge, as well as for proposed future discharges.

Then in June 2009, the Arkansas Court of Appeals invalidated SWEPCO's state Certificate of Environmental Compatibility and Public Need (Certificate) for the plant. SWEPCO's § 404 permit application had been based on the now withdrawn Certificate. See Hempstead Cnty. Hunting Club, Inc. v. Ark. Pub. Serv. Comm'n, 2009 Ark. App. 511, 324 S.W.3d 697, 709 (Ark.Ct.App.2009), aff'd as modified, 2010 Ark. 221, ––– S.W.3d ––––, 2010 WL 4572729 (2010). The Court of Appeals concluded that the Arkansas Public Service Commission (APSC) had not “f[ound] and determine[d] ... the basis of the need” for the plant. Id. at 708, quoting Ark.Code Ann. § 23–18–519(b)(1). The state court also found “particularly disturbing” SWEPCO's failure to address the comparative merits and detriments of alternative locations for its plant. Id. at 709.

After SWEPCO submitted a revised analysis in October 2009, the Corps issued a final § 404 permit in December, along with a supporting “Permit Evaluation and Decision” Document (Permit Decision). In pertinent part the Corps' Permit Decision found that the SWEPCO proposal represented the “least environmentally damaging practicable alternative.” It also assessed the direct, indirect, and cumulative impacts of the authorized discharges on environmental resources. The Corps also made a “finding of no significant impact” (FONSI), indicating that the § 404 permit would not have a significant impact on the quality of the human environment.

The final § 404 permit allowed SWEPCO to discharge “dredged and/or fill material” into 8.07 acres of wetlands (5.6 acres prospectively as well as the 2.47 acres filled without authorization) and into or along 8,150 linear feet of streams. The permit also authorized the placement of several transmission lines across the Little and Red Rivers and the disturbance of 0.06 acres of streambed within the Little River in connection with the placement of a cooling water intake structure. The permit required SWEPCO to provide compensatory mitigation for the authorized impacts by enhancing and protecting stream channels on site. SWEPCO purchased mitigation credits from approved mitigation banks.

Despite dissatisfaction with SWEPCO's actions, the plaintiffs did not immediately resort to federal litigation. Instead, they relied on a statement by SWEPCO's president and chief operating officer, Venita McCellon–Allen, that SWEPCO would not construct the plant without first obtaining a valid state Certificate. When construction of the plant continued after the Arkansas courts had invalidated the Certificate, the plaintiffs filed these actions. ²

In February 2010 the Sierra Club, the National Audubon Society, Audubon Arkansas, and Charles Mills (collectively the Sierra Club) sought to set aside the § 404 permit and to halt construction of the entire plant. The Hunting Club followed suit. They alleged that process that SWEPCO used in obtaining the § 404 permit violated NEPA, the CWA, the ESA, and Arkansas law. The plaintiffs sought declaratory and injunctive relief. In response, SWEPCO contended that the plaintiffs lacked standing and had failed to satisfy the requirements for injunctive relief in Winter v. Natural Resources Defense Council, 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).

After six days...