81 F.4th 510
5th Cir.2023Background
- Driftwood proposed a large LNG export terminal on the Calcasieu River (Louisiana) plus pipeline; FERC served as NEPA lead and issued a 2019 EIS; the Corps evaluated CWA §404 permitting and issued a permit in May 2019.
- Driftwood’s permit would permanently fill ~319.3 acres of wetlands; mitigation combined purchase of ~134.3 acres of mitigation-bank credits and permittee-responsible mitigation using beneficial use of dredged material to restore substantially more acreage (threshold ~650 acres; up to ~3,009 acres long term).
- A commenter (Teague) raised Alternative Site 6 to FERC in the EIS comment period but did not timely or clearly present that alternative to the Corps during the Corps’ 20-day public comment window.
- Petitioners (Healthy Gulf and Sierra Club) sued under the APA and CWA, arguing the Corps failed to identify the LEDPA (by not assessing Alternative Site 6) and unlawfully departed from the mitigation-hierarchy in 33 C.F.R. §332.3.
- The Corps’ administrative record incorporated FERC EIS material, used LRAM functional assessments, coordinated with state agencies, imposed performance/monitoring conditions, and concluded the mitigation package complied with the Guidelines.
- The Fifth Circuit denied the petition, holding petitioners forfeited the Alternative Site 6 challenge and that the Corps permissibly justified its mitigation decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Corps failed to consider Alternative Site 6 / identify LEDPA | Corps ignored an obvious less-damaging alternative (Alt. Site 6); that failure prevents finding LEDPA | Petitioners never timely alerted the Corps to Alt. Site 6 during the Corps’ comment period; Corps not obligated to consider an alternative not raised to it | Forfeited: petitioners failed to raise Alt. Site 6 to Corps in time; challenge barred on that ground |
| Obvious-flaw or independent-knowledge exceptions excuse forfeiture | Late notice to Corps was excused because the flaw was obvious or Corps had independent knowledge via FERC filings | Obvious-flaw not shown; Fifth Circuit does not adopt a freestanding independent-knowledge exception; Teague’s comments were untimely and mostly directed to FERC | Exceptions do not apply; forfeiture stands |
| Corps violated mitigation hierarchy by approving permittee-responsible beneficial-use mitigation instead of using mitigation-bank credits exclusively | Regulations require following mitigation hierarchy; Corps failed to show higher-priority options unavailable and inadequately justified deviation | Regulations allow the Corps to override hierarchy when justified; Corps relied on LRAM, expected greater restoration, state policy alignment, monitoring, and enforceable permit conditions | Held: Corps permissibly departed from the default hierarchy and provided a reasoned, record-supported explanation |
| Concerns about dredged-material contamination and mitigation reliability | Dredging near historically contaminated areas risks spreading contamination; beneficial-use mitigation may fail or be delayed | Corps/FERC analyzed contamination, required contingency/risk plans, and conditioned permit on ‘‘clean’’ material, monitoring, and long-term performance obligations | Held: Record shows adequate analysis and permit conditions addressing contamination and uncertainty; Corps’ decision upheld |
Key Cases Cited
- Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (standard for arbitrary and capricious review)
- Dep't of Transp. v. Pub. Citizen, 541 U.S. 752 (commenters must ordinarily raise issues to the agency to preserve review)
- Atchafalaya Basinkeeper v. U.S. Army Corps of Eng'rs, 894 F.3d 692 (Corps may depart from mitigation preferences when justified by record)
- Delaware Riverkeeper Network v. U.S. Army Corps of Eng'rs, 869 F.3d 148 (timing of NEPA/Corps comment periods can affect ability to raise alternatives)
- Shrimpers & Fishermen of the RGV v. U.S. Army Corps of Eng'rs, 56 F.4th 992 (deference to Corps’ technical and scientific determinations)
- Marsh v. Oregon Natural Res. Council, 490 U.S. 360 (deference to reasonable agency use of scientific methodology)