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Fifth Circuit Rejects Crawfish Producer’s NEPA Challenge

Louisiana Crawfish Producers Assn. v. Rowan, 2006 WL 2474845 (5th Cir. Aug. 29, 2006)

Rick Silver, 3L, University of Mississippi School of Law

On August 29, 2006 the U.S. Court of Appeals for the Fifth Circuit rejected an appeal brought by the Louisiana Crawfish Producers Association (LCPA), which challenged both the environmental assessment performed by the Army Corps of Engineers and the Corps’ conclusion that the proposed project in Buffalo Cove would have no significant environmental impact. The court affirmed the Corps’ decisions.

Background
In 1982 the Corps issued a Final Environmental Impact Statement (FEIS) for the Atchafalaya Basin in Louisiana. The Basin is a flood control area that drains approximately 41 percent of the continental United States. The Corps’ goal was to ensure passage of water through the Basin, while restoring and maintaining its historical conditions. The FEIS divided the Basin into thirteen Management Units. One of these Units was Buffalo Cove, the subject of this dispute. The Corps’ plan for Buffalo Cove called for a series of pipelines and for the creation of spoilbanks which would capture and convey water and sediment. However, these spoilbanks also restricted public access.

In accordance with the National Environmental Policy Act (NEPA), from 1999-2003 the Corps performed an environmental assessment (EA) on the Buffalo Cove Management Unit. The EA stated that the goal of the project was “to improve interior circulation within the swamp; remove barriers to facilitate north to south flow; provide input of oxygenated, low temperature river water; and prevent or manage sediment input into the interior swamps.”1

In July of 2003, the Corps opened the project to public review and comment. Of the 134 comments, only thirty-two opposed the Corps’ assessment. On March 15, 2004, the Corps entered a Finding of No Significant Impact (FONSI) for the Buffalo Cove project. This finding allowed the Corps to proceed with the project.

The LCPA, a non-profit organization of commercial crawfishermen, proposed an alternative plan for Buffalo Cove during the public notice and comment period. The LCPA wanted the Corps to “open up the historical bayous and enforce the permit requirements for the pipelines.”2 The EA performed by the Corps did not address this alternative and the LCPA sought an injunction of the project, arguing that the FONSI was in error since the Corps disregarded its proposed alternative. The district court ruled in favor of the Corps and the LCPA appealed to the Fifth Circuit.

NEPA
NEPA requires all federal agencies to prepare Environmental Impact Statements (EISs) for “major federal actions significantly affecting the quality of the human environment.”3 An EIS is not required if the federal action is not major or does not have a significant impact on the environment. In order to determine if an EIS is necessary, an agency must perform an EA, which is a “low budget environmental impact statement designed to show whether a full-fledged EIS is necessary.”4 If an EIS is not found to be necessary, then a FONSI will be issued and the project may proceed.

Fifth Circuit’s Analysis
The court began by acknowledging that an agency’s NEPA decisions should be afforded a considerable degree of deference and that “courts are to uphold the agency’s decision unless the decision is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”5

The first issue that the court addressed was whether or not the Corps was required to consider and reject the LCPA’s proposed alternative in the EA. LCPA argued that any reasonable alternative must be included in the EA, and that since its proposed plan was reasonable, it should have been included in the Buffalo Cove EA. Alternatively, the Corps asserted that the proposal was impractical and would produce more sedimentation in Buffalo Cove, as opposed to the Corps’ goal of reduced sedimentation.

While the court acknowledged that NEPA does mandate the discussion of alternatives in the EA, the court noted that the regulation does not require that all proposed alternatives be discussed in the EA; there must be some limit to the number of alternatives considered. The court held that since the Corps believed that the LCPA’s project would result in counterproductive sedimentation, the Corps was not arbitrary and capricious in choosing to reject the LCPA’s proposed alternative.

The second question the court faced was whether the Corps’ FONSI was arbitrary and capricious, as the LCPA argued. The LCPA asserted that the Corps’ FONSI was arbitrary and capricious for three reasons.
First, the LCPA claimed that the Corps’ EA failed to account for the cumulative impact of the Buffalo Cove project on the surrounding areas.

However, the court found that the lengthy discussion in the EA on the cumulative impact of the project was quite adequate. The court also pointed out that with regard to the cumulative impact of future actions, the Corps is only required to consider actions that are “reasonably foreseeable.”6

Next, the LCPA argued that the original 1982 FEIS, which the Corps’ EA relied on, was out of date. The court, relying on precedent, held that “mere passage of time rarely warrants an order to update the information to be considered by the agency.”7

Lastly, the LCPA asserted that the Corps’ FONSI was in error because the Buffalo Cove project would result in significant environmental impacts. The court, however, was unswayed by the LCPA’s argument and found that the impact of the project was not “so severe as to render it significant within the meaning of the regulation.”8 Accordingly, the court held that the Corps’ FONSI was not arbitrary and capricious.

Conclusion
Showing deference to the Corps of Engineers, the Fifth Circuit denied an appeal by the Louisiana Crawfish Producers Association to overturn the Corps’ environmental assessment and Finding of No Significant Impact with regard to its proposed project to manage water flow and sediment in the Buffalo Cove Management Unit of the Atchafalaya Basin.

Endnotes
1. Louisiana Crawfish Producers Assn. v. Rowan, 2006 WL 2474845 at *3 (5th Cir. Aug. 29, 2006).
2. Id.
3. 42 U.S.C. § 4332(2).
4.Louisiana Crawfish Producers Assn. at *4 (citing Sabine River Auth. v. U.S. Dept. of Interior, 951 F.2d 669, 677 (5th Cir. 1992)).
5.Louisiana Crawfish Producers Assn. at *4.
6.40 C.F.R. § 1508.7.
7.Louisiana Crawfish Producers Assn. at *6 (citing Sierra Club v. U.S. Army Corps of Engineers, 701 F.2d 1011, 1036 (2nd Cir. 1983)).
8.Louisiana Crawfish Producers Assn. at *6.

University of Mississippi