Atchafalaya Basinkeeper v. U.S. Army Corps of Eng'rs

Citation310 F.Supp.3d 707
Decision Date27 February 2018
Docket NumberCIVIL ACTION 18–23–SDD–EWD
Parties ATCHAFALAYA BASINKEEPER, Louisiana Crawfish Producers Association–West, Gulf Restoration Network, Waterkeeper Alliance, and Sierra Club and Its Delta Chapter v. U.S. ARMY CORPS OF ENGINEERS
CourtU.S. District Court — Middle District of Louisiana

Alisa Coe, Earthjustice, Tallahassee, FL, Adrienne Bloch, San Francisco, CA, Jaimini Parekh, Jan E. Hasselman, Seattle, WA, Misha Leigh Mitchell, Atchafalaya Basinkeeper, Plaquemine, LA, for Atchafalaya Basinkeeper, Louisiana Crawfish Producers Association–West, Gulf Restoration Network, Waterkeeper Alliance, and Sierra Club and Its Delta Chapter.

Susan C. Amundson, United States Attorney's Office, Baton Rouge, LA, Eileen McDonough, Heather E. Gange, Judith E. Coleman, Tyler M. Alexander, Michael D. Thorp, United States Department of Justice, Washington, DC, Stephen M. MacFarlane, United States Department of Justice, Sacramento, CA, for U.S. Army Corps of Engineers.

RULING

JUDGE SHELLY D. DICK

This matter is before the Court on the Motion for Preliminary Injunction1 filed by Plaintiffs, Atchafalaya Basinkeeper, Louisiana Crawfish Producers Association–West, Gulf Restoration Network, Waterkeeper Alliance, and Sierra Club and its Delta Chapter ("Plaintiffs"). Defendant, U.S. Army Corps of Engineers ("Corps") filed an Opposition to this motion,2 as did Intervenor Bayou Bridge Pipeline, LLC ("BBP")3 and Intervenor Stupp Bros, Inc. d/b/a Stuff Corporation ("Stupp").4 Plaintiffs filed a Reply in support of their motion.5 The Court held a preliminary injunction hearing on February 8 and February 9, 2018 where the Court took evidence and heard argument on Plaintiffs' motion. All parties were granted leave to file Post–Hearing Briefs on the motion,6 which the Court has reviewed in considering this motion. For the following reasons, the Court finds that the motion should be GRANTED.

I. BACKGROUND

This matter arises out of the Corps issuance of permits to Bayou Bridge pipeline, to construct and maintain a pipeline across the Atchafalaya Basin capable of carrying nearly half a million barrels a day of crude oil The Corps performed two Environmental Assessments ("EAs"), one pursuant to Section 408 of the Rivers and Harbors Act ("RHA"),7 and one pursuant to Section 404 of the Clean Water Act ("CWA")8 Based on these EAs, the Corps ultimately concluded that no Environmental Impact Statement ("EIS") was necessary; however, Plaintiffs maintain that the Corps' review failed to assess critical environmental impacts arising from project construction and operations and a long history of alleged noncompliance of prior Corps pipeline permits in violation of the National Environmental Policy Act ("NEPA").9 Plaintiffs also contend the Corps' failed to consider oil spill risks in violation of the CWA. Further, Plaintiffs argue that the Corps has violated both NEPA and CWA by relying on inadequate mitigation. Alleged violations of both NEPA and the CWA are reviewed under the Administrative Procedure Act ("APA").10

II. FEDERAL AGENCY REVIEW

Under § 706 of the APA, a reviewing court must uphold the agency's action unless it is found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."11 The reviewing court must hold unlawful and set aside agency action that is contrary to constitutional right, in excess of statutory authority, or without observance of procedure required by law.12 The ultimate standard of review is a narrow one.13 "The court is not empowered to substitute its judgment for that of the agency."14 In applying this standard, "the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court."15 Nevertheless, although the arbitrary and capricious standard of review is highly deferential, "it is by no means a rubber stamp."16

A. NEPA

The National Environmental Policy Act of 1969 ("NEPA"),17 mandates that federal agencies evaluate the environmental impacts of proposed agency action before taking action.18 NEPA is a procedural statute intended "to ensure that federal agencies ‘carefully consider detailed information concerning significant environmental impacts,’ and at the same time ‘guarantee that the relevant information will be made available to the larger audience that may also play a role in both the decision making process and the implementation of that decision.’ "19

NEPA requires federal agencies to prepare a detailed EIS for all "major federal actions significantly [affecting] the quality of the human environment."20 The threshold determination of whether the effect of the proposed action is sufficiently "significant" to necessitate the production of an EIS is made by the preparation of an Environmental Assessment ("EA").21 The EA is a more "concise" environmental review that "briefly" discusses the relevant issues and either reaches a conclusion that preparation of an EIS is necessary or concludes with a "Finding of No Significant Impact" ("FONSI").22 An EA is conducted to "provide sufficient evidence and analysis for determining whether to prepare an [EIS]."23

In making this determination, agencies are to consider both direct and indirect effects of its decision "which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable."24 An impact is reasonably foreseeable if a "person of ordinary prudence would take it into account in reaching a decision."25 The Corps must consider even relatively unlikely events with significant impacts, like accidents.26

"The EA is a rough-cut, low-budget environmental impact statement designed to show whether a full-fledged environmental impact statement-which is very costly and time-consuming to prepare and has been the kiss of death to many a federal project-is necessary."27 Thus, the ultimate purpose of the EA is to lead to one of two findings: "either that the project requires the preparation of an EIS to detail its environmental impact, or that the project will have no significant impact ... necessitating no further study of the environmental consequences which would ordinarily be explored through an EIS."28 If the former is found, then the agency must proceed with a full blown EIS; if the latter is found, the agency issues a FONSI and has no further obligations under NEPA.29

Notably, the NEPA statutory framework provides no substantive guarantees; it prescribes adherence to a particular process, not the production of a particular result.30 NEPA "is a procedural statute that demands that the decision to go forward with a federal project which significantly affects the environment be an environmentally conscious one."31 The statute "does not command the agency to favor an environmentally preferable course of action, only that it make its decision to proceed with the action after taking a ‘hard look at environmental consequences.’ "32 Indeed, "NEPA does not prohibit the undertaking of federal projects patently destructive of the environment; it simply mandates that the agency gather, study, and disseminate information concerning the projects' environmental consequences."33 Thus, while "[o]ther statutes may impose substantive environmental obligations on federal agencies ... NEPA merely prohibits uninformed-rather than unwise-agency action."34 "Agency actions with adverse environmental effects can thus be NEPA compliant where ‘the agency has considered those effects and determined that competing policy values outweigh those costs.’ "35

Further, the Fifth Circuit has found that the fact that plaintiffs or their experts take great issue with the factual findings and ultimate conclusions of the agency does not render those findings and conclusions "arbitrary and capricious."36 As the court noted, government agencies-and not the federal courts-are the entities NEPA entrusts with weighing evidence and reaching factual conclusions:

Where conflicting evidence is before the agency, the agency and not the reviewing court has the discretion to accept or reject from the several sources of evidence. The agency may even rely on the opinions of its own experts, so long as the experts are qualified and express a reasonable opinion.37

Moreover, even if a court was convinced that the plaintiffs' experts were more persuasive than those relied upon by the agency, the court would still be compelled to uphold the agency's finding so long as their experts were qualified and their opinions reasonable.38

B. CWA

The Clean Water Act is a pollution control statute that establishes a comprehensive program designed to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters."39 To achieve this goal, the CWA prohibits the discharge of pollutants, including dredged or fill material, into navigable waters unless authorized by a CWA permit.40 The CWA defines "navigable waters" as "waters of the United States," which, in turn, is defined by regulation to include certain wetlands.41

Section 404 of the CWA authorizes the Corps to regulate discharges of dredged and fill material into wetlands through permitting procedures.42 In addition to passing a public interest review which balances reasonably expected benefits against reasonably foreseeable detriments, all CWA section 404 permits must meet guidelines issued by the Environmental Protection Agency and the Corps under CWA section 404(b)(1).43 These "404(b)(1) Guidelines" specify that the Corps must ensure that the proposed fill will not cause significantly adverse effects on human health or welfare, aquatic life, and aquatic ecosystems.44 To comply with this requirement, the Corps must make a written determination of the effects of a proposed activity "on the physical, chemical, and biological components of the aquatic environment...."45

The 404(b)(1) Guidelines also provide that "no discharge of dredged or fill material shall be permitted unless...

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    • United States
    • U.S. District Court — District of Columbia
    • February 7, 2021
    ...408 EA analyzing a "limited portion" of a project can support a broader Section 404 permit. See Atchafalaya Basinkeeper v. U.S. Army Corps of Engineers, 310 F. Supp. 3d 707, 723 (M.D. La.), rev'd on other grounds, 894 F.3d 692 (5th Cir. 2018). In that case, the court concluded that because ......
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