Save Our Wetlands v. U.S. Army Corps of Engineers

Full title: SAVE OUR WETLANDS v. UNITED STATES ARMY CORPS OF ENGINEERS COL. THOMAS F…

Court: United States District Court, E.D. Louisiana

Date published: Nov 28, 2001

Civil Action No. 01-3472, Section "K"(5) (E.D. La. Nov. 28, 2001)

Opinion

Civil Action No. 01-3472, Section "K"(5)

November 28, 2001

DUVAL, Judge

Before this Court is Plaintiff, Save Our Wetlands, Motion for a Temporary Restraining Order (rec. doc. 1) to halt a proposed development project in the Bayou Liberty Basin in St. Tammany Parish. The Court has considered the memoranda, administrative record, and oral presentations and concludes that the Motion for Temporary Restraining Order should be denied.

The Court initially notes that under the National Environmental Policy Act (NEPA), review of an agency's decision not to perform and Environmental Impact Statement (EIS) after the completion of and Environmental Assessment is conducted under the "arbitrary and capricious standard." Sabine River Authority v. U.S. Dep't of Interior, 951 F.2d 669, 677-78 (5^th Cir. 1992). Furthermore, the Court is aware that NEPA is purely a procedural statute and does not permit a court to critique an agency's substantive decisions. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 ( holding that "Although these procedures are almost certain to affect the agency's substantive decision, it is now well settled that NEPA itself does not mandate particular process results, but simply prescribed the necessary process.")

Under NEPA, an EIS is only mandated when there is a proposal for legislation and major federal action that "significantly affects the quality of the human environment." § 102(2)(C). To make this determination, an agency prepares and "environmental assessment" (EA). An EA is a concise document that describes the proposals and considers several factors including the viability of alternatives, direct and indirect impacts, cumulative effects that the proposed action may cause, and a listing of agencies and persons consulted.

In its complaint, plaintiff alleges that the Corps erred in not preparing an EIS for the development project at issue in this case because it did not adequately consider: (1) cumulative effects of the project with all permitted, proposed and reasonably foreseeable development in that area of St. Tammany, (2) alternatives to the project, or (3) the possibility of mercury and lead contamination to the site soil.

However, a review of the Corps' EA in this case reveals that the agency did consider, through several studies and public and agency comment, alternatives to the proposed development, alternative development sites and the possibility of environmental effects. In fact, the agency determined that the project would, for example, (1) add to the cumulative permanent loss of undeveloped land in the Bayou Liberty basin, (2) contribute to the incremental and cumulative replacement of natural drainage and floodplain functions, (3) increase traffic and light and noise pollution in the area, and (4) cause individual habitant wildlife species to abandon the project site during construction activities and relocate in other natural areas. However, the Corps ultimately determined that the impacts on the human environment would be negligible and insignificant and approved the project without the preparation of an EIS. In reaching its decision, the Corps reported that it considered comments and opinions from other interested agencies and individuals living in the surrounding area who are likely to be impacted by the development. That being said, this Court cannot, in the context of a temporary restraining order, pass judgment on the substantive decision that the Corps reached in issuing this permit without the preparation of an EIS. It is only allowed to review, under the arbitrary and capricious standard, the "process" that the Corps used to reach its decision.

In order to obtain a temporary restraining order, plaintiffs must demonstrate: (1) a substantial likelihood of success on the merits, (2) a substantial threat that plaintiff will suffer irreparable injury if the injunction is not granted, (3) that the threatened injury outweighs the threatened harm to the defendant, and (4) that granting the preliminary injunction will not deserve the public interest. Justin Industries v. Choctaw Securities, L.P., 920 F.2d 262 (5^th Cir. 1990). Because a temporary restraining order is an extraordinary remedy, it should be granted only if the plaintiff clearly carries the burden if persuasion as to all four factors. Mississippi Power and Light v. United Gas Pipe Line, 760 F.2d 618 (5^th Cir. 1985).

At his point, plaintiff has not persuaded this Court that there is a chance of irreparable injury which must be halted through issuance of a temporary restraining order. Furthermore, plaintiff ultimately must convince this Court that the Corps was "arbitrary and capricious" in its issuance of the permit without an EIS and plaintiff has not demonstrated its likelihood of success on the merits. As discussed above, NEPA only requires that an agency consider several factors when determining whether to issue an EIS. The EA prepared by the Corps in this case arguably considered the cumulative effects and indirect impacts that plaintiff. This Court lacks any authority to reprimand the Corps for the decision it ultimately reached in issuing this permit.