63 F.4th 458
5th Cir.2023Background
- The Bonnet Carré Spillway, built under the Mississippi River and Tributaries Project (MR&T) after the 1927 flood, diverts Mississippi River water from New Orleans into Lake Pontchartrain when flow exceeds ~1.25 million cfs.
- Recent river changes have increased the frequency and duration of Spillway openings, causing environmental and economic harms (oysters, fisheries, algae, beach closures) to Mississippi coastal plaintiffs.
- Plaintiffs (Mississippi municipalities and associations) sued the U.S. Army Corps of Engineers under APA § 706(1), seeking a declaration that the Corps must prepare a supplemental EIS under NEPA to address changed circumstances.
- The Corps argued it owed no discrete, judicially compelable duty to prepare a supplemental EIS and asserted sovereign immunity absent such a duty; the district court granted summary judgment to the Corps.
- The Fifth Circuit affirmed, holding that no "major Federal action" remains with respect to the Spillway that would trigger a NEPA supplemental EIS obligation, because the Spillway is a completed project operated under longstanding criteria.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NEPA/regulations impose a discrete duty to prepare a supplemental EIS that courts can compel under APA § 706(1) | NEPA and 40 C.F.R. § 1502.9(d)(1) require supplementation because significant new circumstances (increased openings/impacts) exist | No discrete duty exists here; § 1502.9(d)(1) applies only where a "major Federal action" remains to occur | No discrete duty; APA § 706(1) relief unavailable because no required action to compel |
| Whether a "major Federal action" remains with respect to the Spillway such that supplementation is required | The MR&T as a whole has ongoing authorized work (>$8B), so the Spillway should be treated as part of continuing federal action | The Spillway itself is complete and operated under unchanged criteria; no pending decision on the Spillway remains | "Major Federal action" does not remain for the Spillway; supplementation not required |
| Whether significant new circumstances (more frequent openings) alone trigger supplementation | New circumstances materially affect coastal environment and thus require a supplemental EIS | Significant new information requires supplementation only if it bears on a still-pending federal decision; here operations remain under existing plan | New circumstances alone do not obligate supplementation absent impact on ongoing decisionmaking |
| Whether operational deviations (e.g., 2019 openings at lower flows) create a new action requiring a supplemental EIS | Recent operational practices show the Corps is operating the Spillway beyond original contemplation, creating a new action | Occasional deviations are routine managerial discretion within the existing plan and do not represent a new, contemplated action | Occasional operational variations are within discretion and do not trigger supplement obligations |
Key Cases Cited
- Norton v. S. Utah Wilderness All., 542 U.S. 55 (2004) (APA § 706(1) permits relief only to compel a discrete agency action the agency is required to take)
- Marsh v. Oregon Nat. Res. Council, 490 U.S. 360 (1989) (supplemental EIS required only when new information is valuable to pending decisionmaking about a major federal action)
- Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871 (1990) (standing and review require identifying agency action affecting plaintiff in a specific way)
- Upper Snake River Chapter of Trout Unltd. v. Hodel, 921 F.2d 232 (9th Cir. 1990) (distinguishing routine managerial actions from changes that trigger NEPA supplementation)