Kunaknana v. United States Army Corps of Engineers
23 F. Supp. 3d 1063
D. Alaska2014Background
- The U.S. Army Corps of Engineers issued a Section 404 permit (2011 ROD) allowing ConocoPhillips to build the CD-5 drill pad and associated road/bridges in the Colville River Delta within the NPR‑A, adopting the 2004 Alpine Satellites EIS rather than preparing a supplemental EIS (SEIS).
- Plaintiffs: Kunaknana Plaintiffs (Nuiqsut residents asserting subsistence/aesthetic harms) and the Center for Biological Diversity (CBD; member-based). CBD and Kunaknana separately sued the Corps under NEPA and the CWA; intervenors include ConocoPhillips, Kuukpik, ASRC, State of Alaska, and North Slope Borough.
- Administrative history: initial permit denial (2010 ROD) based on LEDPA considerations (HDD alternative); remand following ConocoPhillips appeal; additional post‑remand information led Corps to approve a modified bridge/road design in 2011 and to conclude no SEIS was required.
- Key factual changes since the 2004 EIS: relocation of the CD‑5 pad ~1.3 miles west, increased pad size and well count, longer/realigned road and bridge placements, and increased fill (from ~45 to ~58.5 acres); post‑2004 studies and agency submissions were relied upon during remand.
- Procedural disposition: CBD dismissed for lack of Article III standing; Kunaknana Plaintiffs have standing. Court grants Kunaknana summary judgment on NEPA only — holding the Corps’ decision that no SEIS was required was arbitrary and capricious because the Corps failed to provide a reasoned explanation addressing project changes and post‑2004 information. CWA claim left for later; remedy and whether an SEIS is actually required deferred pending further briefing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing (CBD) | CBD: its members travel, will return, and face aesthetic/recreational harm from CD‑5 and potential downstream spills | Corps/Conoco: declarations show only distant/airborne visits and speculative "someday" plans — insufficient under Lujan | CBD lacks Article III standing; action dismissed |
| Need for SEIS — project changes | Kunaknana: pad relocation, more wells, realigned bridges/road, and increased fill are substantial changes requiring SEIS or at least a reasoned record analysis | Corps/Conoco: project is similar to alternatives in 2004 EIS; changes are minor or within analyzed range | Court: Corps failed to provide a reasoned explanation in the record addressing these changes; decision not to prepare SEIS arbitrary and capricious |
| Need for SEIS — new information (post‑2004 studies relied in 2011 ROD) | Kunaknana: Corps relied on post‑2004 materials for LEDPA yet conclusorily dismissed significance for NEPA without analysis | Corps/Conoco: materials not significant; no SEIS needed | Court: Corps relied on post‑2004 information for LEDPA but offered only conclusory NEPA statement; record lacks reasoned evaluation — arbitrary on that ground |
| New climate‑change science | Kunaknana: substantial post‑2004 climate information could change impacts and requires Corps consideration/supplementation | Corps: plaintiffs didn’t properly raise climate new‑info during admin process; Corps considered climate effects in ROD | Court: left unresolved; issues of exhaustion and the sufficiency of Corps’ climate analysis deferred for further briefing and remedy determination |
Key Cases Cited
- Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000) (standing in environmental cases requires plaintiff‑specific aesthetic/recreational injury)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (speculative "some day" intentions are insufficient to establish injury‑in‑fact)
- Marsh v. Oregon Natural Res. Council, 490 U.S. 360 (1989) (agencies must take a "hard look" and supplement an EIS when there are substantial changes or significant new information)
- Dep’t of Transp. v. Public Citizen, 541 U.S. 752 (2004) (NEPA plaintiffs must raise issues during the administrative process unless flaws are so obvious agency had independent knowledge)
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (arbitrary and capricious standard: agency must give reasoned explanation connecting facts and choice)
- Friends of the Clearwater v. Dombeck, 222 F.3d 552 (9th Cir. 2000) (agency violated NEPA by failing to evaluate new species designations and whether an SEIS was required)
- Wilderness Soc. v. Rey, 622 F.3d 1251 (9th Cir. 2010) (generalized, vague plans to return to broad areas insufficient to establish standing)