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O’Reilly v. U.S. Army Corps of Engrs., 477 F.3d 225 (5th Cir. 2007)
Sarah Spigener, 2L, The University of Mississippi School of Law
Background
The Planche family owns land in St. Tammany Parish, near Covington, Louisiana that it wishes to develop into a residential subdivision. The family land includes wooded wetlands bordering the Timber Creek, which connects to Timber Branch, a tributary of the Tchefunte River. In order to construct the subdivision, some of the wetlands will need to be dredged and filled and materials will need to be discharged into public waters. In order for a developer to do this, the Clean Water Act requires that he or she obtain a § 404 permit1 from the U.S. Army Corps of Engineers (Corps). The Corps must comply with the procedural requirements of the National Environmental Policy Act (NEPA) in approving the permit.
In 1999 the Planche family filed for a permit for a three-phase project on their land, which encompasses wetlands. Because of public objections the family withdrew this application. In 2000 the family submitted a revised permit application for only the first part of the project, which covers less wetlands. The Corps began to comply with the NEPA requirements, and in 2003 issued a “mitigated FONSI,” or Finding of No Significant Impact, concluding that the project’s adverse impacts on the environment would be reduced to a less-than-significant level by means of mitigation conditions attached to the permit. Consequently, the Corps issued the Planche family a § 404 permit that allows the dredging and filling of 39.54 acres of wetlands, conditioned on certain mitigation measures.
Local residents who live, work, and recreate near the proposed development sued to block the permit. They alleged that the Corps did not comply with NEPA’s requirements because it (1) did not prepare an Environmental Impact Statement (EIS); (2) prepared an inadequate Environmental Assessment (EA); and (3) failed to consider the project’s direct, indirect, and cumulative effects.
The District Court for the Eastern District of Louisiana concluded that the Corps’ EA and FONSI were not sufficient under NEPA’s requirements and agreed with the plaintiffs that the Corps had failed to consider the project’s direct, indirect, and cumulative effects. The trial court also determined that the Corps should have assessed the entire project, not just the first part. Accordingly, the court enjoined issuance of the permit until the Corps prepared a full EIS.
The Corps and the Planche family representative appealed. The Planche family representative contended that the Corps’ EA, FONSI, and permit should be affirmed, but the Corps asked only that the case be returned to the agency for further proceedings that may, if necessary, lead to a new EA and mitigated FONSI. The family and the Corps agreed that the injunction left the Corps with no other option than issuing a full EIS before it could decide whether to approve the developer’s permit.
Assessing NEPA’s Requirements
A court may overrule the Corps’ decision not to prepare an EIS only when the plaintiff establishes that the decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”2 The district court based its finding that the Corps should have prepared an EIS on three grounds: (1) the Corps’ failure to demonstrate the feasibility of the mitigation measures it imposed; (2) the Corps’ failure to consider the cumulative effects of the project, other permits, and area urbanization; and (3) the Corps’ improper segmentation of the first part of the project.
The Fifth Circuit Court of Appeals stated that reliance on mitigation measures may reduce a project’s adverse impacts below the level of significance; however, in order to fulfill NEPA’s requirements, an EIS involving mitigation must include a thorough evaluation of mitigation options. The Corps’ EA predicted that the project would have substantial long-term adverse effects on site soils; could cause long-term, adverse impacts from increased pollution; would cause significant adverse impacts on wildlife habitat and wildlife; would result in a complete loss of wetland functions on the site, which would affect nearby wetlands; and would result in adverse and long-term impacts on traffic and transportation which could lead to safety concerns. Evaluating the Corps’ proposed mitigation measures of these impacts, the appeals court agreed with the trial court that the Corps’ EA failed to effectively demonstrate how these measures would remediate the adverse impacts so that they would not significantly affect the environment. Consequently, the court held that the Corps arbitrarily relied upon the EA to support its mitigated FONSI.
To determine whether the Corps failed to consider the cumulative effects, the court stated that the Corps must consider “proposed or reasonably foreseeable actions that are related by timing or geography.”3 The court found that the Corps had issued seventy-two other permits within a three-mile radius of this proposed development, which includes 400.9 acres of wetlands. The Corps acknowledged that the cumulative effects of the Planche project could become major. The court again agreed with the trial court that the Corps failed to explain why the permit mitigation requirements rendered the cumulative effects of this project less-than-significant.
To assess whether the project was improperly segmented, the court had to determine whether “proceeding with one project will, because of functional or economic dependence, foreclose options or irretrievably commit resources to future projects.”4 “Projects,” under NEPA, include proposals where action is imminent. The court disagreed with the trial court and found that this project was not improperly segmented because the other phases of the project were still in the planning stages and not imminent.
Injunction
The trial court enjoined the issuance of the permit to the Planche developer until the Corps issued an EIS. The appeals court observed that a court that has determined that an agency has acted arbitrarily (as the trial court did) is permitted to set aside the agency’s action. When the agency’s decision is not sustainable on the basis of the evidentiary record, then the matter should be remanded to the agency for further consideration.
Because the trial court’s findings relied on flaws in the Corps’ methodology that rendered its decision unreliable, the appeals court agreed with the Corps and concluded that this case should be sent back to the agency. The court accordingly amended the injunction to enjoin the issuance of the permit pending remand of the case to the Corps for future proceedings.
Conclusion
The court of appeals affirmed the trial court’s conclusion that the Corps acted arbitrarily in issuing a FONSI based on an inadequate EA because it did not meet NEPA requirements. Also, because the EA was inadequate, the court held that the EA could not form the basis of the Corps’ FONSI. Furthermore, the court agreed with the trial court that the Corps should be enjoined from issuing the permit at this time, but disagreed with the trial court’s reasoning. The court stated that this case should be remanded to the Corps so that the agency may correct its mistakes, but that this did not necessarily mean the Corps is required to prepare a full EIS. Therefore, the injunction was amended accordingly.
Endnotes
1. Permit applicants must design their projects to avoid adverse wetlands impacts where “practicable” and to minimize those impacts to an extent “appropriate and practicable.”
2. Administrative Procedure Act, 5 U.S.C. § 706(2)(A).
3. Vieux Carre Prop. Owners, Residents, & Assocs., Inc. v. Pierce, 719 F.2d 1272, 1277 (5th Cir. 1983).
4. Fritiofson v. Alexander, 772 F.2d 1225, 1241 (5th Cir. 1985). |