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Basinkeeper v. U.S. Army Corps of Engineers

United States District Court, M.D. Louisiana

February 27, 2018

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

          RULING

          SHELLY D. DICK UNITED STATES DISTRICT COURT JUDGE.

         This matter is before the Court on the Motion for Preliminary Injunction[1] 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 appropriate and practicable steps have been taken which will minimize potential adverse impacts of the discharge on the aquatic ecosystem.”[46] Under the Guidelines, a project may generally not be permitted where there is “a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences.”[47]

         C. RHA[48]

         The principal purpose in enacting the Rivers and Harbors Act[49] was to facilitate the federal government's ability to ensure that navigable waterways, like any other routes of commerce over which it has assumed control, remain free of obstruction.[50] “The coverage of the Rivers and Harbors Act is broad, and its principal beneficiary is the United States government.”[51] Section 408 of the Rivers and Harbors Act makes it illegal for any person to damage or impair a public work built by the United States to prevent floods.[52]However, the Corps may “grant permission for the alteration or permanent occupation or use of any of the aforementioned public works when ... such occupation or use will not be injurious to the public interest and will not impair the usefulness of such work.”[53]

         III. STANDARD FOR A PRELIMINARY INJUNCTION

         Plaintiffs “seek a limited preliminary injunction preventing construction of the pipeline through the Atchafalaya Basin” pending a merits challenge to the permit.[54] A preliminary injunction is an “extraordinary and drastic remedy” that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.[55] A plaintiff seeking a preliminary injunction must establish (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury if the injunction is not granted; (3) that their substantial injury outweighs the threatened harm to the party whom they seek to enjoin; and (4) that granting the preliminary injunction will not disserve the public interest.[56]

         None of the four requirements has a fixed quantitative value.[57] Therefore, in applying the four-part test, “a sliding scale is utilized, which takes into account the intensity of each in a given calculus.”[58] This requires “a delicate balancing of the probabilities of ultimate success at final hearing with the consequences of immediate irreparable injury that possibly could flow from the denial of preliminary relief.”[59]

         The decision to grant or deny a preliminary injunction is discretionary with the district court.[60] However, because a preliminary injunction is an extraordinary remedy, it “should not be granted unless the party seeking it has clearly carried the burden of persuasion on all four requirements.”[61] Consequently, the decision to grant a preliminary injunction “is the exception rather than the rule.”[62]

         The purpose of a preliminary injunction is limited to preserving the relative positions of the parties until a trial on the merits can be held.[63] “Given this limited purpose, and given the haste that is often necessary if those positions are to be preserved, a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits.”[64] For this reason, the findings of fact and conclusions of law made by a court deciding whether to grant a preliminary injunction are not binding at trial on the merits.[65]

         A. Threat of Irreparable Harm

         “Perhaps the single most important prerequisite for the issuance of a preliminary injunction is a demonstration that if it is not granted the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered.”[66] The focus of this inquiry is not so much the magnitude but the irreparability of the threatened harm.[67] The Fifth Circuit has defined irreparable harm to mean “harm for which there is no adequate remedy at law, ” such as monetary damages.[68]

         Plaintiffs must show that “irreparable injury is likely in the absence of an injunction.”[69] “[A] preliminary injunction will not be issued simply to prevent the possibility of some remote future injury.”[70] There must be more than “an unfounded fear on the part of the applicant.”[71] Accordingly, the party seeking a preliminary injunction must show that the threatened harm is “more than mere speculation.”[72] Therefore, “[a] presently existing actual threat must be shown.”[73]

         In sum, even if a plaintiff demonstrates a strong likelihood of success on the merits, a preliminary injunction may not be granted unless the plaintiff has shown a likelihood- not just a possibility-of irreparable harm.[74] In Winter, the district court and Ninth Circuit had held that when a plaintiff demonstrates a strong likelihood of prevailing on the merits, a preliminary injunction may be entered based merely on a “possibility” of irreparable harm.[75] The Supreme Court rejected the Ninth Circuit's “possibility” standard as too lenient.[76] Accordingly, a court must deny a motion for a preliminary injunction unless the plaintiffs demonstrate, at a minimum, that irreparable harm is likely in the absence of an injunction.

         Plaintiffs content that numerous courts have found that the loss of trees constitutes irreparable injury, even where they constitute a relatively small part of a larger ecosystem.[77] The Fifth Circuit found that the loss of trees along a river, impacting the river's ecology, could constitute irreparable harm even though the total acreage affected was relatively small.[78]

         Plaintiffs also claim that construction of the project has commenced and will start with clearing a 75-foot wide path through the unique and valuable cypress forest swamp, including countless trees over a century old. Trees in the path provide valuable habitat for wildlife and a variety of other ecological benefits.[79] There are also many individual “heritage” trees in the right of way that were already ancient at the time of the Louisiana Purchase. It is also highly unlikely that any cypress forests will regenerate.[80] Plaintiffs state: “It is hard to imagine a more compelling example of ‘irreparable' harm than that.”[81]

         Plaintiffs also contend that construction will also alter the Basin's hydrology and siltation rates, leading to the loss of yet more cypress-tupelo swamp due to sediment accretion.[82] Further, spoil banks will aggravate hypoxic condition in the Basin by inhibiting the natural north-south flow of water, degrading aquatic habitat and further suffocating fish and crawfish.[83]

         Plaintiffs posit that these impacts are not just irreparable to the environment but have real consequences for Plaintiffs and their members. For example, hundreds of members of Louisiana Crawfish Producers Association-West will struggle to make a living in the Basin harvesting crawfish, a profession that once sustained Basin communities for generations.[84]

         In opposition, the Corps contends that Plaintiffs' delay in bringing their lawsuit and filing their motion for relief belies any harm that is immediate or irreparable. Preliminary injunctions are generally granted under the theory that there is an urgent need for speedy action to protect the Plaintiff's rights, and a plaintiff's delay in bringing suit thus undercuts allegations of irreparable harm.[85] The Corps argues that, here, rather than filing promptly, Plaintiffs waited nearly a month to file their complaint and then waited over two weeks to move for a TRO and file their preliminary injunction motion although Plaintiff Atchafalaya Basinkeeper has been aware of the proposed route since January 5. Thus, Plaintiffs' delay in seeking an order to enjoin the tree-clearing that allegedly causes irreparable harm is “inexplicable and unexplained.”[86] The Corps further contends that Plaintiffs' proffered Declarations fail to show that the injury to their aesthetic and recreational interests are irreparable in light of the mitigation required under the permits. That mitigation has been deemed sufficient to compensate for losses to the natural environment, and Plaintiffs have failed to establish the threat of irreparable harm in this motion.

         BBP offers a more substantive opposition to Plaintiffs' suggestion of irreparable harm. BBP contends Plaintiffs have provided no evidence to support the suggestion that there are a great number of heritage trees that will be cut. For instance, one of Plaintiffs' declarants claims that there are many “old growth” trees in the surrounding “forest, ” but does not establish that there are “many” in the narrow right-of-way.[87] Indeed, of the two declarants relied on by Plaintiffs, each provides only a single photograph of a single tree.[88]

         BBP claims that, during the tree survey conducted by BBP, the survey identified only five cypress trees with a 36 inches or greater dbh[89] in either the permanent or temporary right of way. Even if all five trees are cut down, BBP contends this is a de minimus number, representing less than 0.08% of the remaining cypress relic trees in the Basin.[90] Further, BBP maintains that the Corps reasonably concluded that much of the cleared area “would be allowed to revegetate”[91] While Plaintiffs disagree with this conclusion, BBP contends their language reveals their uncertainty - the trees will “probably” not grow back. Not only are these assertions speculative, but they rely on expert say-so, which is insufficient when the Corps has applied its own expertise to reach a contrary conclusion.

         BBP also contends Plaintiffs have conceded that mitigation is available to remedy past harm - the very antithesis of irreparable harm.[92] Thus, whatever impact may have occurred from earlier developments, BBP maintains that all Plaintiffs show is that many of the harms alleged have already occurred. Because these past harms cannot be prevented by a preliminary injunction, they cannot form the basis of preliminary injunctive relief.[93]

         In reply, Plaintiffs argue that Defendants' claim that harm was not imminent based on Plaintiffs' alleged “delay” is without merit. Plaintiffs repeatedly visited the project site to look for signs that construction was imminent and saw none. Further, Plaintiffs reasonably anticipated construction would not begin until later in the year. As soon as Plaintiffs saw indications that construction was imminent, they filed the injunction motion within days. Further, in their post-hearing brief, Plaintiffs rely on the testimony of their fact and expert witnesses, which Plaintiffs contend was “virtually uncontested, ” in arguing they have established the threat of irreparable harm. Plaintiffs contend they presented testimony that the loss of forests would have grave ecological impacts, such as the loss of habitat and the destruction of legacy trees that could be thousands of years old. Dr. Conner explained how the claimed “temporary” impacts were not temporary in light of the fact that cypress forests can no longer regenerate themselves due to changed conditions of the Basin. Additionally, Plaintiffs contend they explained how the carving of yet another channel from one side of the Basin to the other would alter the Basin's hydrology and result in changes in sediment dynamics that would cause two kinds of irreparable harm: robbing the delta of the sediment necessary to sustain it and putting that sediment instead into the Basin where it would threaten cypress swamps.

         The Court finds that Plaintiffs have established a threat of irreparable harm. First, the Court finds no unjustified delay in the timing of Plaintiff's motion. Further, the Court agrees that the impact of the loss of legacy trees cannot be mitigated against or restored to the same condition. The Court also finds that the project potentially threatens the hydrology of the Basin and poses the threat of destruction of already diminishing wetlands. The Court adopts by reference the comments and findings made during the preliminary injunction hearing in support of this ruling on this issue.

         B. Likelihood of Success on the Merits[94]

         Plaintiffs must also demonstrate a substantial likelihood that they will prevail on the merits of their claims. Courts use “a bewildering variety of formulations of the need for showing some likelihood of success.”[95] Some courts require the movant to show that the likelihood of success on the merits is greater than fifty percent.[96] However, the Fifth Circuit recognizes that a finding of substantial likelihood does not require a finding of a fixed quantitative value.[97] Rather, “a sliding scale can be employed, balancing the hardships associated with the issuance or denial of a preliminary injunction with the degree of likelihood of success on the merits.”[98]

         When the other factors weigh strongly in favor of an injunction, “a showing of some likelihood of success on the merits will justify temporary injunctive relief.”[99] However, no matter how severe and irreparable the threatened harm and irrespective of the hardships which a preliminary injunction or lack of one might cause the parties, “the injunction should never issue if there is no chance that the movant will eventually prevail on the merits.”[100]

         To show a likelihood of success, plaintiffs must at least present a prima facie case, but need not prove that they are entitled to summary judgment.[101] To assess the likelihood of success on the merits, the court looks to standards provided by the substantive law.[102]

         1. The Environmental Impact of Oil Spills and Incorporation of the RHA 408 EA analysis to support a FONSI relative to the CWA 404 Permit

         A major dispute between the Parties is whether the Corps performed sufficient analysis of the environmental impact on the Basin of possible oil spills. It is undisputed that NEPA requires an assessment of direct and indirect effects which are reasonably foreseeable. The Corps must analyze even relatively unlikely events with significant impacts, like accidents.[103] Plaintiffs argue that the permit issuance was arbitrary and capricious for failure to analyze the environmental impact of oil spills in connection with the 404 EA. Plaintiffs advance three arguments. First, Plaintiffs contend that the Corps impermissibly relied on the RHA 408 analysis, which is limited in scope and purpose, to buttress or support a FONSI determination under the broader regulatory requirements of the CWA. Second, Plaintiffs contend that the public received insufficient notice that the RHA 408 EA would inform the Corps' spill analysis in the Section 404 EA. Finally, the Plaintiffs contend that the spill modeling relied upon by the Corps was arbitrary and capricious.

         a. Reliance on the testing, analysis, and findings in the Section 408 EA in coordination with the Section 404 EA to support its FONSI conclusion.

         A careful reading of the Section 404 EA reveals that the environmental impacts of possible oil spills were not analyzed except in connection with the Environmental Justice review required by Executive Order 12989.[104] In fact, as part of the “Corps Analysis of Applicant's Responses to Comments from the General Public” in the Section 404 EA, the Corps states that:

comments such as those pertaining to potential impacts to surface and ground water resources through leakage or rupture, [i.e. oil spills] while clearly important factors, are specifically regulated under the Pipeline and Hazardous Material Safety Administration, Office of Pipeline, and LDEQ, and not within the purview of the Corps.[105]

         However, the Section 404 EA FONSI incorporates the “environmental assessment prepared as part of Section 408 review” by reference as part of its conclusory findings in the Section 404 EA. The Corps District Commander states:

Finding of No Significant Impact (FONSI). Having reviewed the information provided by the applicant, the comments received from the public in writing and at the public hearing, the environmental assessment prepared as part of the Section 408 review and this assessment of the environmental impacts, I find that this permit action will not have a significant impact on the quality of the human environment. Therefore, and Environment Impact Statement will not be required.[106]

         Plaintiffs argue that this amounts to impermissible stacking. Plaintiffs argue that the Section 408 EA expressly states that it did not look at impacts to wetlands in the Basin. Plaintiffs are concerned about the risk of a spill in the Basin, but by its own terms, the Section 408 EA doesn't address this. Plaintiffs acknowledge that NEPA allows an agency to rely on, or “tier, ” to one NEPA document in another, but contend that this tiering is permissible only in specific circumstances. Further, Plaintiffs contend the segmentation of a single project into two separate environmental analyses under NEPA is strictly prohibited: “Proposals or parts of proposals which are related to each other closely enough to be, in effect, a single course of action shall be evaluated in a single impact statements.”[107] Plaintiffs maintain that the Corps should have done a single environmental review of the project informing both permits, not separate, isolated reviews that both inform its NEPA analysis.

         At the hearing, the Corps explained the process of conducting the Section 408 EA in conjunction with the Section 404 EA. The New Orleans District Commander reviewed all of the environmental documentation, including the Section 408 EA, in reaching the NEPA FONSI as to the RHA permit and the CWA permit, and a single administrative record supports both determinations and is properly before the Court for consideration. The Corps cites the Supreme Court's decision in National Association of Home Builders v. Defenders of Wildlife, [108] holding that, under the APA, a court must “uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned.” The Corps contends that the District Commander's path is made clear in the conclusory findings on page 91 of the Section 404 EA where the Commander references the Section 408 EA and other supporting documents.

         The Corps and BBP also addressed Plaintiffs' complaint that the Section 408 EA analyzed a very limited portion of the project such that it was insufficient to support the much broader Section 404 permit. The Corps and BBP explained at the hearing that both the Section 404 EA and the Section 408 EA relied on a spill model and analysis that considered the risk of oil spills every 200 feet along the entire pipeline route.[109] Both EAs reference the spill model prepared in accordance with PHMSA regulations. Further, the Corps argues it demonstrated that the preparation of separate EAs is consistent with the Corps' procedures under the Engineering Circular and not an attempt to avoid compliance with NEPA.[110]

         The Section 408 EA explained that “[t]he model shows how far an unabated plume could propagate in 6 hours from a release located generally every 200 feet along the pipeline route in accordance with PHMSA modeling protocols.”[111] While the Section 408 EA applied the spill model results to the specific federal easements and projects to determine the risks and impacts at those locations, the PHMSA model itself clearly covered the entire pipeline. Further, the Section 408 EA compared alternative routes to the preferred route, including with respect to the risks of an oil spill: these “alternatives were evaluated for the pipeline route as a whole.”[112] On these grounds, the Corps and BBP maintain that this is not a case wherein a broader EA incorrectly rested its conclusions on the results of a narrower EA. The analysis used by the Corps in both EAs was co-extensive, and the spill model used to support both assessed oil spills every 200 feet along the entire 162-mile route. Moreover, Plaintiffs offered no evidence or testimony to suggest that this spill analysis was improper or inadequate.

         Considering both EAs and the explanations by the Corps and BBP at the hearing, the Court finds that it was not improper for the Corps to rely upon the Section 408 EA in reaching its FONSI determination in the Section 404 EA. Plaintiffs' claim that reliance on the Section 408 EA in support of the Section 404 EA is a post-hoc litigation tactic unsupported by the record is demonstrably unsupported by page 91 of the Section 404 EA, which clearly and explicitly references and incorporates the finding of the Section 408 EA.[113] The Court is also satisfied that the spill analysis included in the Section 408 EA was not too narrow in scope to support the FONSI.

         b. Public Notice

         Although the 408 EA was finalized in October 2017, Plaintiffs claim the Corps maintained its existence as a “highly guarded secret, ” and it was never released - notwithstanding Plaintiffs' vigorous efforts to gather the information. Also, the Section 408 EA was allegedly never released in draft form for public comment, and the final document was never posted on the website that the Corps maintains regarding the pipeline.

         Regarding public notice, the Corps notes that the Section 408 EA was expressly referenced in the Section 404 FONSI, [114] and Plaintiffs actually briefed this provision in earlier pleadings. Section 1.4 of the Section 408 EA entitled “PUBLIC CONCERNS” states that “[t]he Atchafalaya Basinkeeper responded to the Section 408 Public Notice by letter dated March 9, 2017 with several comments. Most of the comments involved the interaction between the District's Section 408 process and the Section 10 and Section 404 processes being conducted by the District's Regulatory Branch.”[115] This is concrete evidence that the Plaintiffs were aware of the Section 408 EA and had the opportunity to express their concerns.

         c. Challenge to the Spill Analysis as pertaining to the Basin

         Plaintiffs argue that, to the extent the Section 408 EA addresses oil spills, it doesn't say a word about the risk of a leak or spill in a pipeline buried a few feet below the surface of a unique aquatic ecosystem; it doesn't say a word about Energy Transfer Partner's (“ETP”)[116] dismal safety and compliance record or the varying risks of different kinds of crude. Thus, the Section 408 EA does not solve the Corps' failure to look at spills in its 404 decision.

         Plaintiffs contend that, because the scope of the RHA Section 408 EA was limited only to the federal projects and easements along the right of way, it lacks an analysis of the risk of spills specific to the unique ecosystems found in the Basin and is thus incompetent analysis under CWA Section 404. According to Plaintiffs, the Basin area of the right of way comprises only 10 percent of the total length of the right of way. Thus, Plaintiffs contend, if the Section 408 EA only covers 10 percent of the Basin, then the real risk of an oil spill incident is ten times as large as acknowledged in just the Basin - and likely more since the deep underground portions will have additional protections unavailable elsewhere. Plaintiffs maintain that the Section 408 EA's conclusion that an oil spill is unlikely is not supported and speculative for the pipeline as a whole and that much of the documentation upon which BBP relies is not in the record. Thus, the Corps' failure to address the full risks and impacts of oil spills renders its decision arbitrary and capricious.

         In defense of its permit, the Corps contends that the Section 408 EA analyzed oil spill impacts based on a “worst case” spill scenario.[117] This spill model assumes a “guillotine cut” to an above-ground pipeline that evacuates all of the oil in a particular segment of the pipeline.[118] The Section 408 EA explains that this model is conservative in that it greatly overstates the potential volume and impacts of a spill.[119] The Corps also examined the probability that a spill of any significant volume could occur and determined that it was low.[120] The Corps notes that courts have consistently upheld the use of conservative modeling and risk-based analysis under NEPA.[121]

         At the preliminary injunction hearing, the Corps responded to Plaintiffs' criticisms of the Section 408 EA oil spill analysis. The Corps maintains that Plaintiffs failed to understand the extent of the Corps' analysis because, even though the scope of Section 408 is focused upon federal easement along the right of way, the pipeline spill data that was reviewed was far broader in scope. Specifically, in analyzing the BBP pipeline, the Corps reviewed a model that examined oil spill risks every 200 feet for the length of the 162-mile pipeline.[122] The Corps also reviewed data on oil spill impacts in connection with its Environmental Justice analysis for each census block in the Basin and each environmental feature for the entire pipeline length.[123]

         Plaintiffs also took issue with the Section 408 EA for not adequately considering the “unique characteristics” of non-federal portions of pipeline route pursuant to 40 C.F.R. § 1508.27(b)(3). However, the Corps argues that Plaintiffs have not identified any characteristics “unique” to these sections of the route that were not already considered by the Corps' discussion of impacts in the federal areas. Although Plaintiffs incorrectly assert that the Section 408 EA focused on only “a handful of deeply buried pipeline segments, ”[124] the Corps cites to the portions of the EA that repeatedly address and distinguish the impacts of pipeline segments installed by “open-cut” trench techniques, i.e., above grade pipeline construction.[125] Further, the Tables in the Section 408 EA show that the federal easements include wetlands, floodplains, and water bodies that are representative of the land types on other sections of the route.[126] The Corps explained that the spill model “assumes that the pipeline is placed on top of the ground or is floating on top of the waterbodies, ”[127] and these conservative assumptions overstate the potential impact of a spill, making the model results applicable along the entire route.[128] The Section 408 EA also included analysis of crossings that did not involve HDD drilling, meaning the Section 408 assessed risks from the same closer-to-the-surface pipeline segments relevant to the Section 404 EA.[129]

         BBP explained at the hearing that the federal projects and easements to which the PHMSA model analysis was applied in the Section 408 EA are representative of the Basin as a whole. Further, the factors that bear on a spill - pipe corrosion, manufacturing and construction defects, operational errors, equipment failures, etc.[130] - are not unique to the federal projects and easements analyzed in the Section 408 EA. There is sufficient information in the Section 408 EA to demonstrate that the spill prevention, lead detection, and spill response measures the Corps relied on in the Section 408 EA apply across the entire pipeline.[131]

         Plaintiffs expressed particular concern with the Corps' statement that it would defer issues “pertaining to potential impacts to surface and ground water resources through leakage or rupture, ” to the PHMSA as those issues “are specifically regulated by programs administered under the [PHMSA].”[132] Plaintiffs argue that this demonstrates the Corps' dismissiveness to an extremely serious risk. The Court cannot agree with Plaintiffs' characterization, and the administrative record establishes the contrary.

         The Court has considered the evidence presented and the arguments of all Parties on this issue, and the Court finds that, in connection with its Section 408 environmental analysis, the Corps gave extensive and appropriate consideration to the risk of oil spills along the entire route of the pipeline, which includes the Basin. Although the Corps' statement in the Section 404 EA that spill risks were "not within the purview of the Corps[133] created ambiguity, the Court must nonetheless uphold the agency's determination if its decision making “path may reasonably be discerned.”[134] Any suggestion that the Corps simply dismissed the risk and referred the matter to the PHMSA is meritless in light of the substantial attention given to this issue as set forth above in both EAs. Indeed, it is appropriate for the Corps to rely on the expertise of the PHMSA in this regard. In OVEC v. Army Corps of Engineers, [135] the court noted that the concerns raised by the plaintiffs and the EPA primarily related to water quality.[136] In that case, the court noted that, “[u]nder the Clean Water Act, that responsibility lies with WVDEP and the NPDES permit, not the § 404 permit.”[137] Further, the court stated that it was not unreasonable “for the Corps to rely on the expertise of the WVDEP, the agency with primary responsibility for water quality, in determining that impacts on water quality will be insignificant.”[138] The Corps' reliance and deference to the PHMSA in this case is no different and is not improper.

         Further, Plaintiffs have provided the Court with no scientific or technical challenge to the PHMSA spill risk model utilized by the Corps. While the Court acknowledges Plaintiffs have not had access to the specific model, the Court agrees that the record in this matter is overwhelmingly sufficient for Plaintiffs to understand the analysis performed and provide the Court with any scientific or technical challenge to the model and analysis employed. Plaintiffs have failed to do so, and the Court finds that Plaintiffs are unable to demonstrate a likelihood of success on the merits as to the claims pertaining to the risk of oil spills. The Court finds that, on the record presently before the Court, the record is replete with evidence that the Corps did indeed take a “hard look” at the risk of oil spills; thus, the Court finds that the Plaintiffs have failed to demonstrate that they are likely to succeed on the merits of the claim that the Corps was arbitrary or capricious in its assessment of the risk of oil spills for this project.

         2. Mitigation

         a. Public Notice & Comment

         Plaintiffs contend the opportunities for public input on the mitigation plan were insufficient under both NEPA and the CWA. Section 404 of the Clean Water Act authorizes the Secretary of the Army, acting through the Corps, to issue a permit for the discharge of dredged or fill material into navigable waters “after notice and opportunity for public hearings.”[139] Likewise, NEPA requires a process for public comment and debate. The Corps must publish notice soliciting public comment within fifteen days after receipt of a complete application.[140] If the application is incomplete, the Corps must request from the applicant any additional information necessary for a complete application.[141]Generally, an application “must include a complete description of the proposed activity including necessary drawings, sketches, or plans sufficient for public notice.”[142] Detailed engineering plans and specifications are not required; however, the application must describe “the location, purpose and need for the proposed activity; scheduling of the activity; the names and addresses of adjoining property owners; the location and dimensions of adjacent structures; and a list of authorizations required by other federal, interstate, state, or local agencies ... including all approvals received or denials already made.”[143] In short, a complete application is defined in terms of the sufficiency of the submitted materials to issue public notice.[144]

         Because completion is defined by the sufficiency of the submitted materials to warrant public notice, it is controlled by the Corps' regulation that governs the content of a public notice.[145] Public notice serves as “the primary method of advising all interested parties of the proposed activity for which a permit is sought and of soliciting comments and information necessary to evaluate the probable impact on the public interest.”[146]Therefore, “[t]he notice must ... include sufficient information to give a clear understanding of the nature and magnitude of the activity to generate meaningful comment.”[147] Further, the regulation lists items of information that should be incorporated into the notice, including, in relevant part, “[a]ny other available information which may assist interested parties in evaluating the likely impact of the proposed activity, if any, on factors affecting the public interest.”[148] However, “[t]he issuance of a public notice will not be delayed to obtain information necessary to evaluate an application.”[149]

         Plaintiffs state that, under the CWA, the notice issued by the Corps must include “sufficient information to give a clear understanding of the nature and magnitude of the activity to generate meaningful comment.”[150] Plaintiffs posit that “compensatory mitigation is the single most important material issue related to the justification of a § 404 permit.”[151] Plaintiffs rely on the decision by the Virginia District Court in OVEC, which held that a public notice that contains no substantive information on mitigation violates NEPA as well as the CWA.[152] Plaintiffs claim that the Corps' notice for the Bayou Bridge project fell far short of notice requirements. Even after a supplemental application, the notice failed to include any detail regarding mitigation. Further, the details of the mitigation plan - using “out of kind” credits far from the project site - were not revealed until the permit was issued. Plaintiffs argue these are profound problems that the public and other agencies never had an opportunity to address.[153] Plaintiffs claim there is no dispute that the only notice provided regarding mitigation was comprised of a single sentence: “The applicant proposes to offset unavoidable wetland impacts by purchasing credits from Corps-approved mitigation banks within the New Orleans District.”[154] The Plaintiffs claim they were not able to meaningfully comment on the actual mitigation plan - out-of-kind mitigation credits for a different type of wetland far from the project site - which wasn't revealed until the decision was finalized. Defendants' argument that the one sentence description of the mitigation plan meets these standards falls short.

         The Corps maintains that the public received sufficient notice regarding proposed mitigation as it provided notice that BBP would be purchasing acreage credits from Corps-approved mitigation banks in the six watersheds that would be impacted by the project as required by 33 C.F.R. § 332.3(b)(2). For purposes of the CWA, the Corps contends it issued public notice providing “sufficient information to give a clear understanding of the nature and magnitude of the activity to generate meaningful comment, ” including “any information which may assist interested parties in evaluating the likely impact of the proposed activity ... on the public interest.”[155] If it is determined that no alternative would have a lesser impact on the aquatic ecosystem, the Corps conducts a public interest review to evaluate probable impacts of the project balancing the reasonably foreseeable benefits and detriments to determine whether to authorize the proposed project. An intrinsic part of this review is formulating special permit conditions that mitigate temporary and permanent project impacts by avoiding, minimizing, and reducing wetland impacts to the extent possible and providing on or off-site compensatory mitigation for unavoidable impacts.[156]

         The record reflects that, following the public notice and comment period, the Corps conducted a joint public hearing with the LDEQ on January 12, 2017 and a second public hearing on February 8, 2017 in Baton Rouge, Louisiana, and officially fielded additional comments until January 30, 2017. Plaintiff Atchafalaya Basinkeeper submitted comments making the very arguments raised in this lawsuit: criticizing the use of mitigation bank credits and urging the Corps to instead require BBP to remediate historic spoil banks created by different companies. Indeed, in the same paragraph where Plaintiffs now allege they received insufficient notice, they also admit that they nonetheless were able to submit comments “highlight[ing] the inappropriateness of using either out-of-basin or out-of-kind mitigation.”[157] By Plaintiffs' own admission, the Corps did provide adequate notice to the public.

         The Corps attempts to distinguish the OVEC[158] opinion, arguing that it provides no support for Plaintiffs' position. In OVEC, the notices failed entirely to discuss compensatory mitigation because, at the time the notices were published, the applicants had yet to develop a compensatory mitigation plan. In contrast, the Corps claims that the notice Plaintiffs challenge here is “robust, ”[159] containing details about the project's temporary and permanent impacts and accurately describing the permittee's planned mitigation for unavoidable wetland impacts as purchasing mitigation credits from Corps-approved mitigation banks within the New Orleans District. The Corps argues this notice satisfies both CWA regulations and NEPA's aim of fostering meaningful public participation.

         The Court finds that the Corps provided sufficient public notice and opportunity to comment under both NEPA and the CWA. That Plaintiffs' complaints at that time are the same as the complaints raised in this lawsuit is telling. Further, the Court finds that the Section 404 EA contains 26 pages of public comments and the Corps' detailed responses thereto.[160] The Court finds that the substance and detail of the public comments are evidence that the public notice was sufficient to provoke robust public debate about the type and location of the proposed mitigation.

         b. “Preferred Hierarchy” of Mitigation

         The Fifth Circuit has “consistently accepted the proposition that reliance on mitigation measures may reduce a project's impacts below the level of significance.”[161]The Fifth Circuit also recognized that the Supreme Court “has held that proposed mitigation measures need not be laid out to the finest detail, even within the more labor-intensive context of an environmental impact statement.”[162] The court continued:

Mindful of that distinction, we have still required that an EIS involving mitigation must include “a serious and thorough evaluation of environmental mitigation options for [a] Project to allow its analysis to fulfill NEPA's process-oriented requirements [.]” We have, moreover, noted that “mere perfunctory or conclusory language will not be deemed to constitute an adequate record and cannot serve to support the agency's decision not to prepare an EIS.” With these principles in mind, we examine the Corps' EA and the reasons set forth there for its conclusion that each significant environmental impact it had identified would be reduced to insignificance by its prescribed mitigation measure.[163]

         With respect to compensatory mitigation under the CWA, the Code of Federal Regulations (“CFR”) provides that:

The fundamental objective of compensatory mitigation is to offset environmental losses resulting from unavoidable impacts to waters of the United States authorized by DA permits. The district engineer must determine the compensatory mitigation to be required in a DA permit, based on what is practicable and capable of compensating for the aquatic resource functions that will be lost as a result of the permitted activity. When evaluating compensatory mitigation options, the district engineer will consider what would be environmentally preferable.
the environmentally preferable compensatory mitigation may be provided through mitigation banks
Compensatory mitigation requirements must be commensurate with the amount and type of impact that is associated with a particular DA permit.[164]

         Plaintiffs argue that the Corps incorrectly describes controlling regulations as imposing a mechanical and rigid hierarchy under which the outcome here - mitigation credits miles away from the pipeline site that bear zero ecological or hydrologic relationship to the impacts of the project - was the only permissible one. Citing 33 C.F.R. 332.3(a), the Plaintiffs contend the regulations direct precisely the opposite: a careful and balanced analysis to arrive at the “environmentally preferable” approach that actually offsets the environmental impacts which result from permit issuance. Plaintiffs aver no such careful analysis ever took place, in violation of the CWA and NEPA.

         Rather than working through the hierarchy as the regulations direct, Plaintiffs claim the Corps simply selected a mitigation banking approach under which off-site and out-of-kind mitigation credits would be used, without any consideration or analysis of whether other alternatives would be feasible. Plaintiffs submit that there appears to have been zero consideration given to the core question of whether the off-site credits would “successfully replace lost functions and services” in light of aquatic habitat, connectivity, and hydrology.[165]

         In opposition, the Corps argues that it must choose from a “limited menu” of compensatory mitigation options in a “strict priority” order.[166] Because wetland mitigation bank credits appear first in this hierarchy, the Corps contends wetland mitigation bank credits should be used for impacts within the service area of an approved bank that has an appropriate number and type of resource credits.[167] The Corps claims this priority may only be overridden in favor of permittee-responsible projects that “will restore an outstanding resource based on rigorous scientific and technical analysis.”[168] Further, while in-kind mitigation is ordinarily preferable, the Corps contends it may authorize out-of-kind mitigation if it determines, based on a watershed approach, that it “will serve the aquatic resource needs of the watershed.”[169]

         The Court starts with the plain words of the regulation. 33 C.F.R. § 332.3(b)(1) provides:

(b) Type and location of compensatory mitigation
(1) When considering options for successfully providing the required compensatory mitigation, the district engineer shall consider the type and location options in the order presented in paragraphs (b)(2) through (b)(6) of this section.

         The regulation does not use the word “hierarchy, ” nor does the regulation specify a “strict priority” as argued by the Corps. A plain reading of the regulation proscribes the order of considering the “type and location of compensatory mitigation, ” but this is not the same as a “strict priority” as to the type of mitigation selected as the Corps suggests.

         Section 332.3(b)(1) further provides:

In general, the required compensatory mitigation should be located within the same watershed as the impact site, and should be located where it is most likely to successfully replace lost functions and services.[170]

         In terms of considering the “type and location of compensatory mitigation, ”[171]mitigation bank credits are to be considered first.[172] Accordingly, the Court takes no issue with the Corps proceeding through specified order of consideration; however, rote reliance on what the Corps calls a “strict priority” without any rational explanation as to how the mitigation choices serves the stated goal of “replac[ing] lost functions and services”[173] is arbitrary and capricious as will be discussed below.

         33 C.F.R 332.3(b)(2) specifies that “the district engineer should give preference to the use of mitigation bank credits when [stated] considerations are applicable. However, these same considerations may also be used to override this preference, where appropriate.”[174] Thus, while there is a stated preference for the use of mitigation bank credits when considerations exist, [175] the same considerations “may also be used to override this preference, where appropriate, as, for example, where . . . a permittee-responsible project will restore an outstanding resource based on rigorous scientific and technical analysis.”[176] There was no analysis or consideration in the Section 404 EA of whether a “preference” for mitigation bank credits was appropriate or whether the particular mitigation bank credits to be acquired are “located where it is most likely to successfully replace lost functions and services.”[177]

         c. The Lack of Mitigation Analysis and Explanation is Arbitrary and Capricious

         The Section 404 EA defines the proposed work as follows:

Clear rights-of-way, conduct trenching operations, temporarily stockpile approximately 1, 525, 897 cubic yards of native earthen material, dredge flotation ditches, dredge barge landings, install above-ground facilities and components, and perform horizontal directional drilling operations, all as necessary to install 163 miles of 24-inch crude oil pipeline. Project implementation would temporarily impact approximately 455.5 acres of jurisdictional wetlands and approximately 41.8 acres of other waters of the U.S. through temporary construction rights-of-way (ROWs) and workspaces. Approximately 142 acres of jurisdictional wetlands would be permanently converted from forested to herbaceous wetlands within the permanent right-of-way.[178]

         It is undisputed that the construction and continued maintenance of the pipeline ROW will have unavoidable environmental impacts in the Atchafalaya Basin.[179]According to the Corps, “[p]roject implementation [will] temporarily impact approximately 455.5 acres of jurisdictional wetlands . . . [and] [a]pproximately 142 acres of jurisdictional wetlands [will] be permanently converted from forested to herbaceous wetlands within the permanent right-of-way.”[180] The Section 404 EA states that “[t]he proposed project will change and/or reduce wetland functional quality along the route of the proposed ROW by conversion of forested habitat types.”[181] The EA identifies “[a] key issue(s) of concern in this watershed is the loss of wetland function and value.”[182]

         According to the Section 404 EA, the U.S. Fish and Wildlife Services (“USFWS”) objected to the proposed clearing and maintenance of a 30 foot ROW “within forested wetlands due to their high ecological value.”[183] “[T]o avoid current and future forested wetland loss form this precedent-setting proposal, the USFWS strongly opposes the clearing of forested wetlands.”[184] The Louisiana Department of Wildlife and Fisheries (“LDWF”) objected on the same grounds.[185]

         The Louisiana Department of Natural Resources (“LDNR”) complained about placing the pipeline in a location that “would add to the cumulative effect of ecologically detrimental hydrologic alteration, and the pipeline would obstruct planned efforts to restore hydrologic function.”[186] LDNR requested that the pipeline be installed “at a depth at or below that of the adjacent natural swamp.”[187] The Corps responded that “[i]t was determined to be impracticable to place the pipeline” any deeper; however, no analysis or explanation was given for this determination.[188]

         In its discussion of the wetland impacts, the Corps notes that, in the permanent pipeline ROW, “existing forested wetlands will be cleared of all tree stratum and hence be converted and maintained as predominately a cleared herbaceous habitat.”[189] Thus, “typical habitats” will be affected “throughout the Atchafalaya Basin.”[190] The Corps recognizes that these “are important natural communities for the maintenance of water quality, provid[e] a very productive habitat for a variety of fish and wildlife species and, and are important in regulating flooding and stream recharge.”[191]

         The Section 404 EA describes the functionality and value of the wetlands which will be lost as a result of this project, as follows:

They are important natural communities for maintenance of water quality, providing a very productive habitat for a variety of fish and wildlife species, and are important in regulating flooding and stream recharge.
[F]reshwater wetlands act as filters to remove excess nutrients and toxic pollutants form the water. They are tremendous filters for human sewage, toxic metals, and other types of pollutants … Wetlands also buffer coastal areas against wind and waves, and hold excess floodwater to help protect cities and towns during hurricanes and heavy rains … Wetlands provid[e] a very productive habitat for a variety of fish and wildlife species.[192]

         It is this value and functionality that is determinative of the nature and type of compensatory mitigation required. There is no analysis explaining how out-of-kind mitigation addresses these important functions.[193]

         The objective and purpose of compensatory mitigation for environmental harms is to “successfully replace lost functions and services.”[194] “The district engineer must determine the compensatory mitigation to be required in a DA permit, based on what is practicable and capable of compensating for the aquatic resource functions that will be lost as a result of the permitted activity.”[195] To that end, the regulations require that compensatory mitigation “be commensurate with the amount and type of impact that is associated with a particular DA permit.”[196]

         The Corp concluded that 597.48 acres of wetlands will be impacted by the project, of which, 142.03 acres will be permanently impacted.[197] The Corp identifies the temporary conversion of wetlands as the “most prevalent”[198] and proceeds to provide a “breakdown of the temporary impacts by workspace for the proposed ROW.”[199] The Section 404 EA is, however, devoid of similar data for the 142 acres of wetlands which will be permanently impacted, i.e., irretrievably lost. Labeling the temporary wetlands impacts as the “most prevalent” does not dispense with the obligation to analyze the permanent, albeit less “prevalent” losses. The Section 404 EA is lacking in any discussion or analysis of the effects of these permanent conversions.

         In support of its FONSI determination, the Corps concluded that “[a]ppropriate compensatory mitigation was purchased at [mitigation] banks to offset unavoidable impacts to wetlands that [will] result from permit issuance.”[200] BBP purchased 65 acres in-kind/in-basin and 163.8 acres out-of-kind/in basin[201] from the Bayou Fisher Mitigation Bank. In total, BBP proposed to purchase 2019.2 mitigation bank credits for environmental impacts in the Atchafalaya Basin.[202] According to the Corps, 519.7 credits were required to mitigate for impacts to Bottomland Hardwoods (BLH), and 1499 credits were required to mitigate for impacts to Cypress/Tupelo swamp. Yet, only 434.5 Cypress/Tupelo swamp credits were actually purchased (1064.5 less than the number of credits required) and 1584.7 of BLH credits were purchased. In a footnote, the Corps discloses that “1064.7 BLH credits were purchased as out-of-kind/in-basin credits to offset impacts to bald cypress/tupelo swamp.”[203] Based on the compensatory mitigation imposed, [204] the Corp concluded that the “effect” on the wetlands was “neutral as a result of mitigative action.”[205] Despite this conclusion, there is not an iota of discussion, analysis, or explanation how BLH credits mitigate the loss of function and value of the cypress/tupelo swamp impact. As to temporary or construction-related impacts, BBP proposes that it will implement “Best Management Practices” to offset certain environmental impacts.[206] However, there is precious little analysis of what “best practices” will offset temporary impacts. The Court finds the Fifth Circuit's decision in O'Reilly particularly applicable to this case as the O'Reilly also held that no detail was provided to demonstrate how “best practices” would work to mitigate lost function and value.

         For the reasons set forth above, the Court finds that the Section 404 EA fails to demonstrate that the chosen mitigation measures effectively address and remediate the adverse impacts such that a FONSI was proper. As stated by the O'Reilly court, “the EA provides only cursory detail as to what those measures are and how they serve to reduce those impacts to a less-than-significant level. Because the feasibility of the mitigation measures is not self-evident … the EA does not provide a rational basis for determining that the Corps has adequately complied with NEPA.”[207] The Court further finds the following language from the holding in O'Reilly perfectly applicable here:

We recognize that an EA is meant to be a “‘rough-cut, low-budget', preliminary look at the environmental impact of a proposed project.” Spiller, 352 F.3d at 240. The record before us, however, is simply not sufficient to determine whether the mitigated FONSI relies on “‘... mitigation measures which ... compensate for any adverse environmental impacts stemming from the original proposal'” that, unmitigated, would be significant. Id. at 241 (quoting Cabinet Mountains Wilderness, 685 F.2d at 682). In other words, the EA fails to tell us “why the proposed agency action will not have a significant impact on the human environment.” Coliseum Square, 465 F.3d at 224 (citing 40 C.F.R. §§ 1501.4(e), 1508.13). We therefore agree with the district court's determination that, the Corps acted arbitrarily in relying only on the information in the current EA to support the issuance of its mitigated FONSI. In so holding, we pause to note that “[w]e have never said that deficiencies in an EA can only be cured by preparing an EIS, and that is not the law.” Fritiofson v. Alexander, 772 F.2d 1225, 1248 (5th Cir.1985) (overruled on unrelated grounds by Sabine River Auth. v. U.S. Dep't of Interior, 951 F.2d 669, 677 (5th Cir.1992)). Our review of the record today indicates only that we lack the information that would allow us to defer to the Corps's determination that mitigation will reduce the project's effects below the level of significance.[208]

         For the reasons set forth above, the Court finds that the Corps failed to sufficiently justify its reliance on mitigation in reaching the FONSI. There is simply no assurance in the EAs that the mitigation plan will be successful in accomplishing the restorative goals of the CWA. Plaintiffs have demonstrated a likelihood of success on the merits regarding mitigation.

         3. Failure to Consider Cumulative Effects/History of Noncompliance

         Plaintiffs contend the Corps improperly ignored the long history of noncompliance with Corps permit conditions for other pipelines that have resulted in irreparable ecological damage to the Basin.[209] Equally problematic, according to Plaintiffs, is that the Corps ignored the oil and gas industry's extensive record of noncompliance with Corps' pipeline permits. Plaintiffs contend that the past pipeline construction has left spoil banks across much of the Basin which have been devastating to its ecology and hydrology.[210]

         Further, virtually every commenter who participated in the permit process raised this history of noncompliance as a reason either to deny the permit or to conduct a full EIS. The Corps can only forgo such an analysis if compliance with the permit conditions is assured to occur. Being “hopeful” that compliance will occur is insufficient grounds to excuse the preparation of an EIS.[211] “[S]uch hope does not provide a sufficient basis on which to rest a § 404 permit and FONSI.”[212] Because the Corps illegally dismissed historic noncompliance as irrelevant to the current permit, Plaintiffs argue this is a failure to consider “all factors” which bear on the public interest determination. Plaintiffs also maintain that Energy Transfer Partners (“ETP”), Bayou Bridge's parent company, is out of compliance on another pipeline in the very same Basin and has an egregious history of violating environmental standards.[213] In sum, Plaintiffs claim it is undisputed that the Corps has granted many pipeline permits that prohibit spoil banks in the Basin; however, these terms have been routinely violated, and the Corps has failed to enforce those permit conditions. The Corps' NEPA and CWA analysis doesn't say a single word about noncompliance, nor does the permit propose anything different than what the Corps has always done in the past.

         The Corps rejects Plaintiffs' arguments and claims it properly relied on mandatory permit conditions and project design features in assessing impacts. The Corps did not need to consider the possibility of non-compliance because the conditions are mandatory, and the Corps has regulatory power to enforce them. The Corps reasonably relied on those conditions and its regulatory power to enforce them in reaching its finding of no significant impact. Further, Plaintiffs' argument is contrary to Fifth Circuit case law and is speculative. Here, the permit issued by the Corps contains several mandatory conditions that, if not followed, allow the Corps to invoke suspension, modification, and revocation procedures contained in 33 C.F.R. § 325.7 or enforcement procedures like those contained in 33 C.F.R. 326.4 and 326.5.

         The Corps maintains that both EAs respond to Plaintiffs' comments regarding possible spoil bank impacts. In light of the permit's extensive conditions, the permittees' repeated assurance of compliance with those terms and industry best practices, as well as the Corps' own regulatory authority to enforce the permit's conditions, it was reasonable for the Corps to consider the permits mitigation requirements in reaching a FONSI. Unlike the Friends of Back Bay case, the Corps is not merely “hopeful” that the permittee will adhere to the conditions in the permit - the Corps enjoys the regulatory authority to enforce those conditions should the permittee fail to uphold them, through actions up to and including revocation of the permit and recommending civil enforcement.

         The Corps cites to the Fifth Circuit's decision in State of Louisiana v. Lee:

This is not an instance where the proposed mitigating conditions consist of vague statements of good intentions by third parties not within the control of the agency. … Rather, here the conditions are legally enforceable by the Corps. The dredging must be conducted in accordance with these restrictions. Therefore, the only realistic course of action is to consider the conditions in reviewing the Corps' decision not to file the impact statement.[214]

         The Corps addressed Plaintiffs' claims that it failed to consider the cumulative impacts of permitting an additional pipeline crossing in an area impacted by historical unremediated spoil banks, including potential impacts from noncompliance by BBP. The Corps cites to both EAs where the Corps referenced historical spoil banks from past projects in analyzing cumulative impacts.[215] The Corps contends nothing more was required under NEPA. Further, the Corps contends the law is clear that Plaintiffs cannot support a cause of action on a speculative factual hypothetical that presumes future violations by a permit holder.

         BBP contends under both NEPA and the CWA, the Corps' analysis is limited to the impacts of this pipeline.[216] Thus, the Corps addressed and rejected Plaintiffs' concern regarding the alleged noncompliance of other pipelines. In the Section 404 EA, the Corps noted these complaints and BBP's response to these concerns that the right of way must be restored to “pre-construction contours” by BBP following construction.[217] Also noted in the Section 404 EA is the fact that several pipelines about which Plaintiffs complain pre-date the CWA and Section 404 permitting; thus, they are not out of compliance.[218]BBP contends the Corps resolved this dispute, explaining that it “has considered comments received from the public in response to the Public Notice and Public Hearing. In reviewing the applicant's responses to the comments and supporting documentation, [the Corps] has determined that the concerns presented and falling within the Corps statutory authority … may be addressed through modifications in project ...


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