Board of Mississippi Levee Commissioners v. United States Environmental Protection Agency
674 F.3d 409
5th Cir.2012Background
- Board appeals district court’s grant of summary judgment upholding EPA veto of Yazoo Backwater Area Pumps Project under the Clean Water Act §404(c).
- Board contends EPA was barred from vetoing the Project because §404(r) requirements were met.
- EPA first-time-on-appeal argues Board lacks prudential standing to challenge EPA’s decision; EPA also seeks record supplementation (Fish and Wildlife Mitigation Report).
- Court denies Board’s motion to supplement or take judicial notice; EPA waived prudential standing challenge.
- Record shows no EIS satisfying Environmental Act and §404(b)(1) was submitted to Congress; EPA’s Final Determination relied on this deficiency.
- Court affirms district court, holding the EPA’s §404(c) veto was not unlawful given the lack of Congress-facing EIS evidence in the record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prudential standing to challenge EPA veto | Board asserts EPA erred; Board has rights conferred by statute. | EPA argues Board lacks prudential standing for this challenge. | EPA's prudential standing argument waived; Board lacks no standing issue preserved for review. |
| Whether §404(r) requirements were met | Board contends EIS was submitted to Congress before discharge and authorization. | EPA found no such EIS submitted to Congress meeting §404(r) conditions. | §404(r) not satisfied; EPA properly vetoed under §404(c). |
Key Cases Cited
- Buffalo Marine Servs. v. United States, 663 F.3d 750 (5th Cir. 2011) (scope of review under APA; substantial evidence standard)
- Ensley v. Cody Res., Inc., 171 F.3d 315 (5th Cir. 1999) (prudential standing may be waived)
- Nat'l Solid Waste Mgmt. Ass'n v. Pine Belt Reg'l Solid Waste Mgmt. Auth., 389 F.3d 491 (5th Cir. 2004) (prudential standing considerations in agency challenges)
- Talk Am., Inc. v. Mich. Bell Tel. Co., 131 S. Ct. 2254 (2011) (agency deference in statutory interpretation)
- Tex. Clinical Labs, Inc. v. Sebelius, 612 F.3d 771 (5th Cir. 2010) (highly deferential review of agency actions)