Lafitte's Cove at Pirates' Beach Nature S.
v.
Corps

United States District Court, S.D. Texas, Galveston DivisionMay 11, 2007
CIVIL ACTION NO. G-04-185. (S.D. Tex. May. 11, 2007)

CIVIL ACTION NO. G-04-185.

May 11, 2007


ORDER LIFTING INJUNCTION


This case arises out of the permit application process for a development on the west end of Galveston Island. Plaintiff Lafitte's Cove at Pirates' Beach Nature Society ("Plaintiff") brought suit against Defendants U.S. Army Corps of Engineers (the "Corps"), Colonel Leonard D. Waterworth ("Waterworth"), and various other Defendants (collectively "Defendants"), in May, 2004, alleging that the Corps failed to sufficiently analyze the cumulative impact of certain development projects on the west end of Galveston Island. Plaintiff and Defendants filed competing Motions for Summary Judgment. On December 14, 2004, this Court issued an Order Granting Plaintiff's Motion for Summary Judgment and Denying Defendants' Motion for Summary Judgment, which also enjoined Permit 22790 and all further work on the Harbor and Sanctuary development pending proper analysis of the permit application by the Corps. A Final Judgement was issued concurrently with the Order. On January 16, 2007, the Corps and Waterworth filed an Opposed Motion for Relief from Judgment, to which Plaintiff timely filed a Response. The Court denied Defendants' Motion for Relief from Judgment on February 15, 2007, stating that "an improper ruling could potentially have devastating effects" and that, therefore, it would not lift the injunction until the Parties had an opportunity to present their opposing claims in a live hearing. Such a hearing was held on May 10, 2007. For the reasons articulated below, the Court must GRANT Defendants' Motion to Lift the Injunction.

The Court hereby incorporates its Order Denying Motion for Order to Show Cause in its entirety.

The Court does not consider this Order worthy of publication. Accordingly, it has not requested and does not authorize publication.

I. Background

II. Legal Standard

42 U.S.C. § 4331see also Robertson v. Methow Valley Citizens Council,490 U.S. 332350109 S. Ct. 18351846 104 L. Ed. 2d 351Robertson, 490 U.S. at 349109 S. Ct. at 1845Id.

A detailed Environmental Impact Statement ("EIS") is only required if the federal action has a "significant" impact on the environment. See 42 U.S.C. § 4332. Agencies determine whether the potential impact is significant enough to require an EIS by preparing an Environmental Assessment ("EA"). See Spiller v. White, 352 F.3d 235, 237 (5th Cir. 2003) (citing Sabine River Authority v. U.S. Dep't of Interior, 951 F.2d 669, 677 (5th Cir. 1993)). "The EA is a `concise' document 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.'" Id. If there is a Finding of No Significant Impact, then the agency is not required to prepare an EIS.

If an agency's decision not to prepare an EIS is challenged, the court may review the administrative record to determine if the agency's Finding of No Significant Impact was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A); see Spiller, 352 F.3d at 240. The reviewing court "has the `least latitude in finding grounds for reversal' of an agency decision and `may not substitute its judgment for that of the agency.'" Spiller, 352 F.3d at 240 (quoting Sabine River, 951 F.2d at 678).

III. Analysis

It is encouraging that society, in general, is becoming more aware of the detrimental impact man's excesses are having on our planet. At the same time, it is distressing that certain segments of society prefer to ignore the overwhelming evidence before them of the adverse effects their choices have upon the environment. Even more disturbing is that the needs of those who are concerned with the macrocosm are unsatisfied because the rights of those whose vision is confined to the microcosm have precedence.

The Court has been presented with valid scientific evidence that development of Galveston Island involving dredged channels and altered uplands "increases the likelihood that even a moderate hurricane will sever the island." Pl.'s Ex. 12 (report of Dr. H.C. Clark, a geophysicist at Rice University). However, the evidence only speaks of probabilities. Defendants' evidence indicates that the development contemplated at the Harbor is minor in comparison with the vast amount of cut and fill development already completed on the Island. Nobody can predict the exact impact this single additional development will have on the overall probability that a hurricane will sever the Island.

As discussed above, the legal standard requires the Corps to develop an EIS only if it determines that the action in question will have a significant environmental impact. Previously, the Court was concerned that the Corps' EA, in which it concluded that the Harbor development had no significant environmental impact, did not include a sufficient cumulative impact assessment and did not sufficiently consider the loss of the spoil disposal area and future maintenance dredge location. The Corp claims that both of the Court's prior concerns have been rectified. It asserts that it thoroughly reviewed the evidence Plaintiffs presented regarding the cumulative impact of the cut and fill development on the Island, and that it determined that the impact of this one development is inconsequential. Additionally, according to the Corps, the loss of the spoil disposal area did not significantly impact its decision not to prepare an EIS at this juncture because the original permit designating the spoil disposal area and future maintenance dredge location has been amended, and another area has been designated. The Court is not only unable to second-guess the Corps on these issues because it is impossible to predict the exact impact of the development, it is legally unable to do so. The Corps undoubtedly took a "hard look" at the possible consequences of the development when it considered Plaintiff's evidence, and it decided to grant or amend the permits in question. See Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S. Ct. 2718, 2730 n. 21, (1976) ("The only role for a court is to insure that the agency has taken a `hard look' at environmental consequences."); see also Robertson, 490 U.S. at 333, 109 S. Ct. at 1837 (citing Kleppe for this proposition). Unless the Corps' actions were arbitrary and capricious, the Court's hands are tied. See Spiller, 352 F.3d at 240. Thus, though the Court is sympathetic to Plaintiff's environmental concerns, it must, under the law as it stands, dissolve the injunction and allow the Harbor development to proceed.

The Court's reasoning is further developed in the Record and bears no repetition here.

The Constitution vests power to provide for the nation's general welfare in the Legislative Branch; thus, Plaintiff's environmental concerns could be more aptly address by the legislature. See U.S. Const. art. I, § 8.

IV. Conclusions

For the reasons stated above, Defendants' Motion to Lift the Injunction is GRANTED. Each Party is to bear its own taxable costs, expenses, and attorney's fees incurred herein to date.

IT IS SO ORDERED.