Opinion
Civil Action No: 98-3625, SECTION: "J"(5).
July 20, 2000
Before the Court are cross Motions for Summary Judgment filed by plaintiff Save Our Wetlands, Inc., ("SOWL") (Rec. Docs. 17 90), defendant United States Army Corps of Engineers ("CORPS") (Rec. Doc. 97), and intervenor Tammany Holding Corporation ("THC") (Rec. Doc. 94). The motions, set for hearing on February 16, 2000, are before the Court on briefs without oral argument.
For the following reason, the Court GRANTS the Corps' and THC's Motions for Summary Judgment, DENIES SOWL's Motion for Summary Judgment, and DISMISSES all claims against the Corps and THC.
I. BACKGROUND
A. FACTS
The controversy at the heart of this matter is Permit EM-19-980-1347 issued by the Corps to THC which allows THC to fill approximately 119 acres of wetlands abutting Lake Ponchatrain in St. Tammany Parish. The Corps determined that the 119 acres are "jurisdictional" wetlands which fall within their control. The wetlands are part of a parcel of 850 acres owned by THC, which seeks to construct a residential subdivision, Lakeshore Estates, complete with commercial and multi-family areas, marina, civic center, and eventually a school.
Prior to issuing the permit, the Corps conducted an environmental study and ultimately issued a written report called an Environmental Assessment ("EA"). Based on testings in the area, consideration of the impact of the construction, the nature of the land, and public interest factors, the Corps issued in its EA a finding of no significant impact ("FONSI"), concluding that the work proposed by THC and the loss of the 119 acres of wetlands would not have a significant adverse impact on the surrounding environment. The Corps issued the permit to THC on September 3, 1998, authorizing THC to "dredge and maintain channels, marina basin, and canals, and install, maintain, fill, marina roads, levees, and appurtenances for residential subdivision, commercial/multi-family area and marina. . . ." Administrative Record ("A.R.") at 528. However, the permit did contain a number of special conditions. One condition in particular requires THC to engage in a mitigation effort by creating 228 acres of wetlands in the northeast portion of the property. These new wetlands are designed to "provide compensation for the loss of wetland functions and values for work associated with this project." A.R. at 531.
Since the permit was issued, and before SOWL sought a preliminary injunction, THC claims it has invested millions of dollars and engaged in extensive construction on the site. THC estimates that the project is seventy-five percent complete, with roadways, house construction, civic center development, and one access channel opening well underway. As a result of the construction, only 20 acres of wetlands remain.
B. PROCEDURAL HISTORY
On December 8, 1998, SOWL filed suit against the Corps, alleging that in issuing the permit the Corps violated the National Environmental Policy Act, 42 U.S.C. § 4321, et seq., ("NEPA"), the Clean Water Act, 33 U.S.C. § 1251, et seq., ("CWA"), and the Administrative Procedure Act, 5 U.S.C. § 551, et seq., ("APA"), by failing to prepare an environmental impact statement ("EIS"), failing to conduct an adequate EA, and failing to consider all practicable alternatives to the site. On August 18, 1999, THC intervened in this action. SOWL seeks to have this Court suspend the permit and order the Corps to either conduct an EIS or re-evaluate its decision to issue an EA in light of cumulative impacts.
In a letter dated September 24, 1999, the Corps informed the Court that it temporarily suspended the permit for reevaluation concerning circumstances surrounding THC's "authorized activities" during construction as well as "new information not earlier considered." The letter then stated that the permit was sent to the Environmental Protection Agency for investigation. As a result, the Court, in a minute entry dated September 24, 1999, stayed this matter pending resolution of the Corps' reevaluation. The stay was short lived, however, when on October 5, 1999, the Corps notified the Court that the permit was reinstated. The Court subsequently lifted the stay.
The Corps' letter is attached to the Court's September 24, 1999 order staying this matter.
On November 10, 1999, the Court conducted a hearing on SOWL's Motion for Preliminary Injunction wherein SOWL alleged that, because of THC's destruction of the wetlands and the presence of mercury contamination in Lake Ponchatrain, the Court should enjoin the construction. Although the Court denied the motion, finding inter alia that SOWL had not met its burden of proving likelihood of success on the merits, the Court ordered as follows:
SOWL filed its Motion for Preliminary Injunction on October 25, 1999.
IT IS ORDERED that the [Corps] shall (i) test for mercury contamination on the project site, specifically where the lake channels will be dredged; (ii) administratively consider the issue of mercury raised in the pleadings before this Court; (iii) determine whether, under the applicable regulations, a revision of the Permit or its Evaluation and Decision Document, including the Environmental Assessment, prepared for the project is necessary; and (iv) report back to this Court and supplement the Administrative Record with its findings within ninety days of the date of this order;
IT IS ORDERED that the Federal Defendant shall contact the Louisiana Department of Environmental Quality ("LDEQ"), by Monday, November 22, 1999, attempt to obtain a copy of the original water quality certification for the project at issue, and furnish a copy of that document to the Court, or in the alternative, apprize this Court of what it has learned regarding the status of the project's water quality certification.Save Our Wetlands, Inc. v. Conner, No. 98-3625, at 2 (E.D.La. Nov. 24, 1999) (Order) (emphasis omitted). The Court's order also memorialized THC's agreement with the Court that "[THC] will not (i) undertake any additional development in the twenty acres of wetlands identified in its agreement with the Corps of Engineers on October 1, 1999, or (ii) dredge the eastern access channel to the Lakeshore Estates project in Lake Ponchatrain, without first giving reasonable notice of its intentions to undertake such activity to the parties hereto and the Court." Id.
On November 24, 1999, the Corps filed with the Court notice of a copy of the original water quality certification issued by LDEQ (Rec. Doc. 80).
On May 22, 2000, the Corps filed notice of the Supplement to Administrative Record (Rec. Doc. 114) which contained the results of the mercury testing. All parties had a representative present when the samples were taken from sediment in the access channels leading from the future marina to Lake Ponchatrain. The Corps secured independent testing of these samples. The results conclusively indicated that there was no mercury. A.R. at 747.
After considering the pleadings, evidence, and memoranda and arguments of counsel, the Court is ready to rule on the parties' cross Motions for Summary Judgment.
II. DISCUSSION
SOWL's Motion for Summary Judgment was originally set for hearing in August of 1999, but was continued until October 1999 to allow the parties ample opportunity to further brief the issues. However, after this matter was temporarily stayed in September 1999, the Court ultimately re-set the motion and any cross motions for February 16, 2000. SOWL then filed a Supplemental Memorandum in Support (Rec. Doc. 90) of its earlier motion for summary judgment. In its motion, SOWL argues that the issuance of the permit was "arbitrary, capricious, and an abuse of discretion." 5 U.S.C. § 706 (2)(A). SOWL's single argument is that the Corps' issuance of the permit, and its underlying FONSI, was arbitrary and capricious because the Corps failed to adequately consider the cumulative impacts the proposed project would have on the area. Specifically, SOWL argues that the Corps ignored past, proposed, and reasonably foreseeable projects that have or will have impacts in the same geographical area.
A. NEPA
In addressing the issue presented in this case, the Court initially looks to the nature of a claim under NEPA. "[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. 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.'" Sabine River Authority v. U.S. Dep't of Interior, 951 F.2d 669, 676 (5th Cir. 1992) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989)). As such, NEPA directs a federal agency which embarks on an action which may `significantly affect the quality of the human environment' to perfect a report or EIS which includes a detailed statement on "the environmental impact of the proposed action, any adverse environmental effects which cannot be avoided . . ., alternatives to the proposed action, the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented." 42 U.S.C. § 4332 (2)(C)(i)-(v).
To guide federal agencies in furtherance of NEPA's goals, Congress created the federal Council on Environmental Quality ("CEQ") which issues binding regulations entitled to substantial deference from the courts.See Sabine River Authority, 951 F.2d at 676-77; Fritiofson v. Alexander, 772 F.2d 1225, 1236 (5th Cir. 1985). Whether to issue an EIS, as opposed to only an EA, falls squarely within the regulations created by CEQ.
Pursuant to these provisions, when an action of a federal agency may `significantly affect the quality of the human environment,' the federal agency should conduct an EIS. See 42 U.S.C. § 4332 (2)(C). A federal agency may, however, elect to first conduct an EA to determine "whether the environmental effects of a proposed action are `significant.'" Sabine River Authority, 951 F.2d at 677; see also 40 C.F.R. § 1501.3. An EA is a "concise document that briefly discusses the relevant issues. . . ."Id. Its purpose is "to provide sufficient analysis for determining whether to prepare an EIS." Id. (quoting Fritiofson, 772 F.2d at 1236). If, after the completion of an EA, the federal agency decides that the environmental impact of its actions may be significant, then the agency would be responsible for conducting an EIS. However, if the agency decides after the EA that the impact would not be significant, then it issues a finding of no significant impact ("FONSI"), and an EIS is not required.
B. STANDARD OF REVIEW
Disposition of these motions turns upon the standard of review applicable to an administrative agency's decision under the APA. In reviewing an agency decision to forego an EIS, the court must apply the highly deferential "arbitrary and capricious" standard. Sabine River Authority, 951 F.2d at 677-78.
Under this highly deferential standard of review, a reviewing court has the "least latitude in finding grounds for reversal." It may not substitute its judgment for that of the agency, but must studiously review the record to ensure that the agency has arrived at a reasoned judgment based on consideration and application of the relevant factors. 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 experts, so long as the experts are qualified and express a reasonable opinion. The reviewing court may be inclined to raise an eyebrow under such circumstances, but it must show the proper respect for an agency's reasoned conclusion even if the reviewing court finds the opinions of other experts equally or more persuasive.Id. at 678 (quoting North Buckhead Civic Ass'n v. Skinner, 903 F.2d 1533, 1538 (11th Cir. 1990)) (citations omitted).
C. CUMULATIVE IMPACTS
Applying this arbitrary and capricious standard of review, the Court finds that SOWL's Motion for Summary Judgment must be denied and that THC's and the Corps' Motions for Summary Judgment must be granted. In analyzing cumulative impacts, an agency should consider: "(1) the area in which effects of the proposed project will be felt; (2) the impacts that are expected in that area from the proposed project; (3) other actions — past, proposed, and reasonably foreseeable — that have had or are expected to have impacts in the same area; (4) the impacts or expected impacts from these other actions; and (5) the overall impact that can be expected if the individual impacts are allowed to accumulate." Fritiofson, 772 F.2d at 1236.
While SOWL's and the Corps' memoranda focus on the issue of cumulative impacts, THC filed a supplemental memoranda raising for the first time the issue of res judicata allegedly based upon prior litigation with the disputed wetlands between the Corps and SOWL in Save Our Wetlands, Inc., v. United States Army Corps, No. 74-2919 (E.D. La.). However, given its ruling on the issue of cumulative impacts, the Court pretermits discussion of res judicata.
Based upon its review of the entire administrative record, the Court cannot conclude that the Corps was arbitrary or capricious in its consideration and application of the relevant factors, although the Corps might have done more to address certain facets of the issue of cumulative impacts. The Court reaches this conclusion for three basic reasons. First, the contested permit concerns only 120 acres of jurisdictional wetlands which had been diked off from Lake Ponchatrain and under forced pumpage in some form since 1929 and had practically no contributory effects on the surrounding environment. The remaining wetland functions had deteriorated due to the long-term diked, drained state. The isolated nature of the wetlands created an ecosystem unto itself which was used as pasture land at the time the permit was issued. The Corps explored the possibility of opening the area up to Lake Ponchatrain which, it surmised, "would result in a shallow open water system rather than a wetland or would require extensive water level management to create a viable wetland area." A.R. at 502.
Second, the Corps tiered onto the EIS of the Federal Highway Administration on the expansion of the 1-10 in the project area in 1987 which recognized that this area would eventually become developed. The EA states: "The development is to have direct access to and from Interstate Highway 10 to the interchange that was specifically built to address the need for access to the project area in the Eden Isle development on the west side of the interchange . . . ." A.R. at 502. The Corps also concluded that the development's infrastructure and the interstate exchange will be capable of sustaining the increased traffic. A.R. at 511.
Third, the Corps required THC to mitigate the impact of losing the wetlands by constructing a 228 acre marsh open to the lake. The concept of mitigation necessarily takes into account any negative impacts the project might have. Mitigation alone will not carry the issue of whether an agency analyzed cumulative impacts but it does reflect a conscious effort to minimize the effects of an action. See Town of Norfolk v. United States Army Corps of Engineers, 968 F.2d 1438, 1449 (1st Cir. 1992) ("[I]f mitigation measures are insufficient to compensate for the loss of a valuable wetland, the permit should be denied."). SOWL's disagreement with the effectiveness of this mitigation strategy is little more than a dispute between experts, the resolution of which should be left up to the Corps. See Idaho Sporting Congress, Inc., v. United States Forest Service, 92 F.3d 922, 928 (9th Cir. 1996) (holding that agency was "entitled to rely on the opinion and recommendation of its own experts").
The lack of arbitrariness in the Corps' decision is also reflected in the administrative record with extensive comments from federal, state, and local agencies as well as from private and public interest groups. The EA acknowledges consideration of these materials.
In its motion, SOWL points to the depositions of three Corps employees, Roger Swindler, Roger Ventola, and Michael Farabee, to support its argument that the EA was issued without regard to any knowledge of the number of jurisdictional wetlands in St. Tammany Parish or the number of pending permits that will affect wetlands in St. Tammany Parish. SOWL also argues that the EA only addresses air quality for this particular project, failing to account for the negative cumulative affects of air quality for other projects; the project will adversely impact the marine fishery resources; and water quality would be directly and indirectly negatively impacted in both the short and long term. Furthermore, SOWL maintains, any finding that water quality would be impacted even only in the short term merits an EIS.
Although SOWL raises good faith, legitimate concerns about whether the Corps engaged in a vigorous, comprehensive assessment of cumulative impacts, the Court finds such concerns do not create genuine issues of material fact as to whether the Corps' decision to issue the permit was arbitrary or capricious. The depositions of the three Corps employees, Swindler, Ventola, and Farabee, cast doubt on exactly how in depth the Corps considered cumulative impacts. The Court agrees with SOWL that a reading of these depositions raises questions as to whether the EA was issued without regard to any knowledge of the number of jurisdictional wetlands in St. Tammany Parish or the number of pending permits that will affect wetlands in St. Tammany Parish. The depositions also demonstrate that the deponents may not have considered the impact of a fully developed 850 acre residential subdivision. The EA merely recognizes that the entire 850 acres are to eventually be developed, leaving unresolved the issue of whether it was actually considered. Other valid criticisms levied by SOWL include the limited amount of testing conducted by the Corps and the failure to adequately weigh the extent and nature a project of this size will have on the water quality as well as marine resources.
Although the Corps re-urged its motion to limit the Court's review of this matter to the administrative record pursuant to the "record rule," the Court finds that consideration of these extra-record depositions is wholly consistent with a review of a NEPA claim. See Sabine River Authority, 951 F.2d at 678 ("A reviewing court is to review the administrative record as well as other evidence to determine whether the agenc[y] adequately considered the values set forth in NEPA and the potential environmental effects of the project before reaching a decision on whether an environmental impact statement was necessary.") (quotingSierra Club v. Hassell, 636 F.2d 1095, 1097-98 (5th Cir. Unit B 1981)) (emphasis added).
However, in light of the Corps' consideration of the isolated nature of the wetlands, the Corps' tiering onto the earlier EIS, and the Corps' requirement of mitigation conditions, SOWL's criticisms, although legitimate, fail to create a genuine issue of material fact rising to the level of an arbitrary or capricious decision by the Corps. Accordingly,
The Court remains perplexed as to why SOWL waited until construction was substantially complete, and the disputed wetlands mostly destroyed, before filing a motion for preliminary injunction seeking to stop the project. The Corps issued its permit to THC on September 3, 1998, SOWL filed suit on December 8, 1998, but did not file its Motion for Preliminary Injunction until nearly a year later on October 25, 1999. As recently reiterated in a case originating in this Court, the Fifth Circuit stated:
[T]he basic thrust of NEPA legislation is to provide assistance for evaluating proposals for prospective federal action in the light of their future effect upon environment factors, not to serve as a basis for after-the-fact critical evaluation subsequent to substantial completion of construction . . . the courts have been reluctant, at least in the absence of blatant bad-faith violations, to grant relief after the challenged project has been substantially or wholly completed, even in instances where the agency . . . has acted in violation of NEPA-mandated preconstruction procedures.Bayou Liberty Assoc., Inc., v. United States Army Corps of Engineers, 2000 WL 874664, at *2 (5th Cir. July 19, 2000) (quoting Richland Park Homeowners Assoc. v. Pierce, 671 F.2d 935, 940 (5th Cir. 1982)).
IT IS ORDERED that SOWL's Motion for Summary Judgment should be and is hereby DENIED.
IT IS FURTHER ORDERED that the Corps' and THC's Motions for Summary Judgment should be and are hereby GRANTED and that all of SOWL's claims against the Corps and THC should be and are hereby DISMISSED WITH PREJUDICE.