Basinkeeper v. U.S. Army Corps of Eng'rs
| Decision Date | 25 March 2020 |
| Docket Number | CIVIL 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 |
| Court | U.S. District Court — Middle District of Louisiana |
RULING
This matter is before the Court on the cross Motions for Summary Judgment filed by Plaintiffs, Atchafalaya Basinkeeper, Louisiana Crawfish Producers Association-West, Gulf Restoration Network, Waterkeeper Alliance, and Sierra Club and its Delta Chapter ("Plaintiffs");1 Defendant, U.S. Army Corps of Engineers ("Corps");2 Intervenor Bayou Bridge Pipeline, LLC ("Bayou Bridge");3 and Intervenor Stupp Bros, Inc. d/b/a Stupp Corporation ("Stupp").4 All Parties filed Oppositions and Replies to the respective motions.5 The Court has carefully considered the Administrative Record,6 the argumentsof all Parties, and the applicable laws and jurisprudence in this matter. For the following reasons, the Court finds that Plaintiffs' motion should be DENIED, and the motions of the Corps, Bayou Bridge, and Stupp should be GRANTED.
This matter arises out of the Corps' issuance of permits to Bayou Bridge 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
In October 2016, the Corps gave public notice inviting comment on Bayou Bridge's Section 404 permit application.9 The Corps subsequently conducted a public hearing and extended the comment period.10 A few months later, the Corps gave notice also inviting public comment on Bayou Bridge's Section 408 application.11 Numerous federal agencies, state agencies, and private parties provided comments in response.12 Plaintiffs submitted several letters during the comment periods13 and additional comments thereafter.14 The record demonstrates that the Corps considered timely comments15 andconducted multiple meetings with Bayou Bridge and others during the review process.16
Following its year-long review of this project proposal, the Corps prepared a 135-page Section 408 EA, with nearly 200 pages of appendices.17 In conjunction, the Corps also prepared a Section 404 EA that totaled 92 pages.18 The Corps coordinated "between [its] Section 408 process and the . . . Section 404 process[ ]."19
Based on these EAs, the Corps ultimately concluded that no Environmental Impact Statement ("EIS") was necessary; however, Plaintiffs challenged this decision in this Court and moved for a temporary restraining order and preliminary injunction to stop the project from going forward without the completion of an EIS.20 Plaintiffs claimed 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")21 and that the Corps' failed to consider oil spill risks in violation of the CWA. Plaintiffs also argued that the Corps violated both NEPA and the CWA by relying on inadequate mitigation.
The Court denied Plaintiffs' request for a temporary restraining order22 but held a two-day hearing on Plaintiffs' request for a preliminary injunction and ultimately issued a Ruling granting a preliminary injunction and halting the project.23 The Court disagreedwith Plaintiffs' contention that the Corps failed to take a "hard look" at the likelihood and risks of oil spills in the EAs;24 however, the Court granted the injunction finding a likelihood of success on the merits regarding the Corps' mitigation remedy for the loss of wetlands and the inadequacy of the Corps' consideration of the pipeline's cumulative impacts when considered with a history of past noncompliance.25 Both the Corps and Bayou Bridge appealed this decision to the Fifth Circuit Court of Appeals.26
The Fifth Circuit stayed the injunction pending appeal and ultimately reversed the Court, concluding that that Corps' EA analysis under Section 404 and 408 satisfied the requirements of NEPA and the CWA.27 Following the Fifth Circuit Court of Appeals' Ruling, the project construction continued, and the pipeline is now fully operational, subject to some cleanup and restoration. Plaintiffs subsequently moved to file an Amended Complaint, which the Court denied as futile.28 The Corps completed the Administrative Record and filed a Notice of Lodging of Certified Administrative Record.29 Bayou Bridge moved to complete the administrative record,30 arguing the Corps failed to include materials it considered relating to oil spill risks, and Plaintiffs moved to supplement the record and/or have the Court consider extra-record evidence of purported expert analysis contradicting several conclusions the Corps reached.31 The Corps opposed bothmotions, and the Court denied both motions for reasons assigned in its May 14, 2019 Ruling.32 Now before the Court are the Parties' Motions for Summary Judgment as described above.
Under § 706 of the Administrative Procedure Act ("APA"),33 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."34 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.35 The ultimate standard of review is a narrow one.36 "The court is not empowered to substitute its judgment for that of the agency."37 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."38 Nevertheless, although the arbitrary and capricious standard of review is highly deferential, "it is by no means a rubber stamp."39 Alleged violations of both NEPA and the CWA are reviewed under the APA.
The National Environmental Policy Act of 1969 ("NEPA"),40 mandates that federal agencies evaluate the environmental impacts of proposed agency action before taking action.41 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.'"42
NEPA requires federal agencies to prepare a detailed EIS for all "major federal actions significantly [affecting] the quality of the human environment."43 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").44 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").45 An EAis conducted to "provide sufficient evidence and analysis for determining whether to prepare an [EIS]."46
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."47 An impact is reasonably foreseeable if a "person of ordinary prudence would take it into account in reaching a decision."48 The Corps must consider even relatively unlikely events with significant impacts, like accidents.49
"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."50 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."51 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.52
Notably, the NEPA statutory framework provides no substantive guarantees; it prescribes adherence to a particular process, not the production of a particular result.53 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."54 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.'"55 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."56 Thus, while "[o]ther statutes may impose substantive environmental obligations on federal agencies . . . NEPA merely prohibits uninformed-rather than unwise-agency action."57 "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.'"58
Further, the Fifth Circuit has found that the fact that plaintiffs or their experts take great issue with the...
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