Citizens for Clean Air & Clean Water v. U.S. Dep't of Transp.

• Court: U.S. Court of Appeals — Fifth Circuit
• Writing for the Court: Dana M. Douglas, Circuit Judge
• Citation: Citizens for Clean Air & Clean Water v. U.S. Dep't of Transp., 98 F.4th 178 (5th Cir. 2024)
• Docket Number: 23-60027
• Decision Date: 04 April 2024
• Parties: CITIZENS FOR CLEAN AIR & CLEAN WATER IN BRAZORIA COUNTY; Texas Campaign for the Environment; Center for Biological Diversity; Turtle Island Restoration Network; Sierra Club, Petitioners, v. UNITED STATES DEPARTMENT OF TRANSPORTATION; Pete Buttigieg, in his official capacity as Secretary of the U.S. Department of Transportation; United States Coast Guard, an agency of the U.S. Department of Homeland Security; Richard V. Timme; United States Maritime Administration, an agency of the U.S. Department of Transportation; Ann Phillips, in her official capacity as Administrator of the U.S. Maritime Administration; Linda L. Fagan, in her official capacity as Commandant of the U.S. Coast Guard, Respondents.

98 F.4th 178

CITIZENS FOR CLEAN AIR & CLEAN WATER IN BRAZORIA COUNTY;Texas Campaign for the Environment; Center for Biological Diversity;Turtle Island Restoration Network; Sierra Club, Petitioners, v. UNITED STATES DEPARTMENT OF TRANSPORTATION; Pete Buttigieg,in his official capacity as Secretary of the U.S. Department of Transportation;United States Coast Guard, an agency of the U.S. Department of Homeland Security;Richard V. Timme; United States Maritime Administration,an agency of the U.S. Department of Transportation;Ann Phillips, in her official capacity as Administrator of the U.S. Maritime Administration;Linda L. Fagan, in her official capacity as Commandant of the U.S. Coast Guard, Respondents.

No. 23-60027

United States Court of Appeals, Fifth Circuit

FILED April 4, 2024

Appeal from the Maritime Administration, Agency No. MXXXX-XXXX-0011

Amy Catherine Dinn, Lone Star Legal Aid, Houston, TX, for Petitioner Citizens for Clean Air & Clean Water in Brazoria County.

Erin Laurel Gaines, Attorney, Earthjustice, Houston, TX, Michael Lawrence Brown, Earthjustice, New Orleans, LA, for Petitioner Texas Campaign for the Environment.

Lauren Parker, Attorney, Jason Craig Rylander, Esq., Center for Biological Diversity, Washington, DC, for Petitioner Center for Biological Diversity.

Devorah Ancel, Attorney (argued), Sierra Club, Environmental Law Program, Austin, TX, Rebecca McCreary, Sierra Club, Boulder, CO, for Petitioners Turtle Island Restoration Network, and Sierra Club.

Ezekiel Peterson (argued), Brian C. Toth, U.S. Department of Justice, Environment & Natural Resources Division-Appellate Section, Washington, DC, Paul Maitland Geier, Esq., Assistant General Counsel, Ann C. Philips, U.S. Department of Transportation, Washington, DC, for Respondents United States Department of Transportation, Pete Buttigieg, United States Maritime Administration, and Ann Phillips.

Ezekiel Peterson, Brian C. Toth, U.S. Department of Justice, Environment & Natural Resources Division-Appellate Section, Washington, DC, Melissa Bert, Judge Advocate General, U.S. Coast Guard Stop 7213, Washington, DC, Linda L. Fagan, U.S. Coast Guard, Washington, DC, for Respondent United States Coast Guard, and Linda L. Fagan.

Ezekiel Peterson, U.S. Department of Justice, Environment & Natural Resources Division-Appellate Section, Washington, DC, Richard V. Timme, U.S. Coast Guard, New Orleans, LA, for Respondent Richard V. Timme.

James T. Banks, Attorney, Sean Michael Marotta, Joanne Rotondi, Catherine Emily Stetson, Esq. (argued), Reedy Swanson, Hogan Lovells US, L.L.P., Washington, DC, Jacob Dekeratry, Caitlyn Hubbard, David E. Keltner, Esq., Kelly, Hart & Hallman, L.L.P., Fort Worth, TX, for Intervenors.

Before Wiener, Willett, and Douglas, Circuit Judges.

Dana M. Douglas, Circuit Judge:

A government agency approved a license to construct and operate a large deepwater oil facility a few miles from Texas's coast. Several environmental organizations allege that the approval was unreasonable, claiming that the reviewing agency failed to support its decision with a well-reasoned environmental impact analysis. Such a failure, the organizations assert, was in violation of the Deepwater Port Act and the National Environmental Policy Act. The question presented is whether the agency's approval was arbitrary or capricious. We hold that the agency adequately considered the environmental consequences of the facility before approving its deepwater port license and, on those grounds, DENY the petition for review.

I

America's deepwater oil and gas industry was born in the late 1930s when proprietors discovered oil in the Gulf of Mexico's open waters. To access the valuable minerals, workers constructed wooden platforms with timber pilings and floating decks meant to wash away in the event of storms. Diane Austin, et al., MMS 2004-049, HISTORY OF THE OFFSHORE OIL AND GAS INDUSTRY IN SOUTHERN LOUISIANA: INTERIM REPORT 72-74 (U.S. Dep't of the Interior, vol. 1 2004). Little did anyone know then that these primitive wooden structures would lay the foundation for the more than 3,000 deepwater oil facilities in operation today. See Gulf of Mexico Data Atlas: Oil and Gas Structures, NAT'L OCEANIC & ATMOSPHERIC ADMIN., https://www.ncei.noaa.gov/maps/gulf-data-atlas/atlas.htm?plate=Offshore% 20Structures (last visited Feb. 4, 2023).

With such an imposing modern infrastructure, it may come as no surprise that the Gulf leads the nation in producing and exporting domestic oil to markets worldwide. That reality nevertheless presents challenges the builders of the first offshore platforms likely never considered. One challenge, for example, is efficiently exporting the roughly 3.9 million barrels of crude oil that move from the region daily. Petroleum & Other Liquids, Annual-Thousand Barrels per Day (2023), U.S. ENERGY INFO. ADMIN., https://www.eia.gov/dnav/pet/pet_move_exp_dc_R30-Z00_mbblpd_a.htm (last visited Mar. 26, 2024). The most efficient practice today is utilizing large tankers capable of carrying over a million barrels at once. Yet moving these quantities of oil on such large vessels comes with a cost. The weight of the cargo makes the metal tankers weighty, requiring deep waters to support their hull. Practically, that means oil facilities near land cannot load the vessels because the coastal waters are too shallow. To circumvent this issue, the industry employs a "reverse lightering" process where smaller ships ferry oil from coastal ports and transfer their cargo to larger vessels in deeper waters. While reverse lightering addresses the coastal-loading issue, the process has a few setbacks of its own: It multiplies shipping traffic and expenses for oil companies.

The Sea Port Oil Terminal (SPOT or Port) offers a possible alternative. Billed as the largest deepwater terminal of its kind, SPOT would directly load a maximum of 365 very large crude carriers (VLCCs) in deep waters each year. SPOT would operate several miles from the coast of Texas and connect to existing land-based oil facilities through subsea and onshore pipelines. Operating at total capacity, SPOT could store and export 18 percent of total U.S. oil production annually. Such a capability would diminish the need for reverse lightering trips and consequently reduce oil transportation costs.

For all its commercial promise, however, SPOT has drawn significant opposition from Petitioners who constitute local and national environmental organizations. Among their many concerns, Petitioners argue that the project's construction and operation will cause severe and lasting global consequences. Operating SPOT, Petitioners assert, would produce emissions on the Gulf Coast equivalent to "more than 80 new coal-fired power plants." That staggering quantity of harmful pollutants, they say, will not only undercut U.S. and global emission policies but also exacerbate the detrimental effects of climate change. Another worry is that SPOT could increase the likelihood of mass oil spills along miles of Texas coastline. Petitioners believe such disasters would have catastrophic economic impacts throughout the region.

As for ecological effects, Petitioners say the project threatens the Gulf's marine environment. By encouraging shipping traffic, increasing air pollution, discharging hazardous substances, and emitting harmful noise, Petitioners claim that SPOT puts several endangered animals at risk. Of particular concern is the Rice's whale, a non-migratory cetacean that lives in the region's tropical waters. Sadly, scientists believe that no more than fifty Rice's whales remain in the natural world. Petitioners believe that operating the Port will bring these whales closer to extinction.

This appeal is not the first occasion that Petitioners raised these and other concerns about SPOT. For several years, they voiced their criticisms directly to the government agency reviewing SPOT's deepwater port application. Even so, the project is slated to move forward. After conducting hearings, considering numerous public comments, and drafting a thousand-page environmental impact statement, the Government approved SPOT's license for construction and operation.

Continuing to believe that SPOT's dangers far outweigh its benefits, however, Petitioners appealed the licensing decision. They allege that the agency failed to conduct the appropriate level of review in its environmental impact statement and follow relevant statutory provisions during the approval process. To remedy these alleged failures, Petitioners ask us to vacate the agency's decision and remand this case for additional review. We consider Petitioners' challenges below. But before addressing them, we must first ensure that we have jurisdiction to do so. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006).

II

The parties disagree about whether Petitioners have standing to challenge the agency's licensing decision. Such a dispute invokes the constitutional limitations rooted in Article III's "case" or "controversy" clause. Satisfying the Article III threshold requires Petitioners to demonstrate their " 'personal stake' in the case." Biden v. Nebraska, — U.S. —, 143 S.Ct. 2355, 2365, 216 L.Ed.2d 1063 (2023) (quoting TransUnion LLC v. Ramirez, 594 U.S. 413, 423, 141 S.Ct. 2190, 210 L.Ed.2d 568 (2021)). To do so, at least one plaintiff must point to some concrete injury " 'fairly traceable' to the actions of the defendant," which will "likely be redressed by a favorable decision." Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 562-63, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).¹

Enterprise Products Operating, LLC (Enterprise),² one of SPOT's principal designers, argues that Petitioners fail to articulate a cognizable injury.³ It claims Petitioners offer only their subjective "concerns" without proof that they or anyone else will suffer the harms alleged. Enterprise...