Sierra Club v. DOI, 990 F.3d 909

Background:

Annova proposed a $5.2 billion LNG export terminal on 731 acres along the Brownsville Ship Channel in Cameron County, Texas; FERC authorized the project after an EIS and consultation with the Fish & Wildlife Service (Service).
The project area overlaps habitat for two ESA-listed cats: the endangered ocelot (≈50 in U.S., two Texas breeding populations) and the Gulf Coast jaguarundi (not seen in south Texas for decades).
After multi-year consultations and mitigation commitments (including relocating the terminal and voluntary land acquisitions), the Service issued a biological opinion finding the project "not likely to jeopardize" the ocelot or jaguarundi and an incidental take statement (ITS) authorizing the harm/harassment of one endangered cat (ocelot or jaguarundi) over construction and the life of the project.
The ITS required immediate reinitiation of formal Section 7 consultation if the take limit is exceeded and included additional obligations (e.g., discussions following lethal takes and mitigation commitments tied into FERC authorization).
Sierra Club and Defenders of Wildlife challenged the ITS and biological opinion as arbitrary and capricious, arguing the ITS lacked a clear take limit and reinitiation trigger, failed to make the no-jeopardy finding adequately (action-area, baseline, and cumulative-effects errors), and inadequately tied mitigation measures to the ITS.
The Fifth Circuit denied the petition, holding the ITS and biological opinion were not arbitrary and capricious and complied with the ESA and implementing regulations.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the ITS sets a clear take limit and enforceable reinitiation trigger	ITS ambiguous; no clear trigger or timing for reinitiation	ITS specifies one take "for construction, and for the life of the project" and requires immediate reinitiation if exceeded	Held: ITS sets a clear, enforceable one‑take limit and reinitiation trigger
Whether ITS must include the reasonable and prudent measures verbatim as enforceable terms	ITS omitted measures from terms and conditions, so mitigation not binding	Measures were part of the proposed action, were committed to before formal consultation, and ITS and FERC authorization make them non‑discretionary	Held: Measures are effectively binding; omission of verbatim text is not fatal
Whether Service improperly excluded the Rio Grande project from the action area	Rio Grande is adjacent and should be included; exclusion undercounts impacts	Rio Grande lies north of the Ship Channel and outside the action area where project effects will occur; Service's boundary choice is reasonable	Held: Exclusion was reasonable and entitled to deference
Whether biological opinion failed to account for environmental baseline/cumulative effects and therefore wrongly found no jeopardy	Service did not aggregate other projects, omitted factors used in Rio Grande analysis, and provided insufficient quantitative analysis	Service considered past/present federal actions, direct/indirect effects, and cumulative effects qualitatively; ESA/regulations do not mandate a numeric aggregation	Held: No‑jeopardy conclusion was rational and not arbitrary or capricious

Key Cases Cited

Medina Cnty. Env’t Action Ass’n v. Surface Transp. Bd., 602 F.3d 687 (5th Cir. 2010) (APA review is narrow and highly deferential to agencies)
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (arbitrary and capricious standard and need to consider relevant factors)
FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) (courts should not substitute their judgment for agency expertise)
Marsh v. Oregon Nat. Res. Council, 490 U.S. 360 (1989) (review focuses on consideration of relevant factors and lack of clear error of judgment)
Luminant Generation Co. LLC v. EPA, 714 F.3d 841 (5th Cir. 2013) (agency must articulate a rational connection between facts and conclusion)
Atchafalaya Basinkeeper v. U.S. Army Corps of Eng’rs, 894 F.3d 692 (5th Cir. 2018) (deference to agency technical determinations)
Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059 (9th Cir. 2004) (EPA/Service need not prescribe a single numerical method for jeopardy determinations)
Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644 (2007) (jurisdictional note on agency roles under ESA)