56 F.4th 992
5th Cir.2023Background:
- Developers proposed (2016) an LNG export terminal and two parallel pipelines in south Texas that would affect wetlands; FERC prepared an EIS and approved the project (2019), later modified the design (2020) to remove one liquefaction train and otherwise change pipeline/compressor plans.
- The modified design requires permanent dredge/fill of ~149.7 acres of special aquatic sites and temporary impacts to ~122.7 acres during pipeline construction.
- The U.S. Army Corps of Engineers reviewed the FERC EIS, prepared its own environmental assessment, imposed special permit conditions (avoidance/minimization, monitoring, and restoration contingencies), and issued a Clean Water Act §404 permit in 2021.
- Petitioners (Shrimpers & Fishermen of the RGV, Sierra Club, Save RGV from LNG) challenged the permit, alleging the Corps failed to select the least environmentally damaging practicable alternative (LEDPA) and improperly declined to require compensatory mitigation for pipeline construction impacts.
- The Corps rejected Petitioners’ terminal- and pipeline-layout alternatives as either not less environmentally damaging or not practicable/available, and concluded pipeline impacts would be temporary (revegetation within one growing season) given site conditions and permit restoration/monitoring requirements.
- The Fifth Circuit applied deferential arbitrary-and-capricious review, found the Corps adequately explained its LEDPA and mitigation decisions, and denied the petition for review.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Corps selected the LEDPA under 40 C.F.R. § 230.10(a) | Corps failed to show the permitted layout was the least environmentally damaging practicable alternative; offered alternatives would avoid/lessen wetland loss | Corps considered alternatives, explained why proposed reconfigurations would not avoid wetland functional loss or were not raised in comments or not reasonably obtainable/practicable | Corps satisfied CWA requirements; its rejection of alternatives was rational and not arbitrary; permitted project is LEDPA |
| Whether pipeline-construction impacts required compensatory mitigation | Temporary impacts are longer and require mitigation; Corps’ one-year revegetation estimate lacks factual support | Corps relied on scientific literature, site-specific growing-season conditions, short per-crossing construction windows, and permit monitoring/contingency conditions to treat impacts as temporary | Corps’ determination that impacts are temporary and that no compensatory mitigation was required was reasonable and not arbitrary |
Key Cases Cited
- Buttrey v. United States, 690 F.2d 1170 (5th Cir. 1982) (presumption against unnecessary wetland alteration)
- 10 Ring Precision, Inc. v. Jones, 722 F.3d 711 (5th Cir. 2013) (agency must examine relevant data and articulate a satisfactory explanation)
- Sw. Elec. Power Co. v. EPA, 920 F.3d 999 (5th Cir. 2019) (deference to agency explanations where relevant factors considered)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (U.S. 1983) (arbitrary-and-capricious review standard)
- Dep't of Transp. v. Pub. Citizen, 541 U.S. 752 (U.S. 2004) (must give agency opportunity to address issues raised in comments)
- City of Shoreacres v. Waterworth, 420 F.3d 440 (5th Cir. 2005) (theoretical, unsupported acquisition of alternative sites is insufficient)
- Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897 (5th Cir. 1983) (minimal rationality standard for agency action)
- Sierra Club v. EPA, 939 F.3d 649 (5th Cir. 2019) (deference to agency scientific judgments)
- BCCA Appeal Grp. v. EPA, 355 F.3d 817 (5th Cir. 2003) (agency expertise in technical environmental determinations)