153 F. Supp. 3d 894
E.D. La.2015Background
- Helis sought a Corps §404 permit to construct a well pad and surface facilities to drill a vertical exploratory well (Phase 1) and later a potential horizontal/fracking well (Phase 2); Corps required Helis to limit the permit to Phase 1 and reduce the pad to ~3.13 acres of wetland fill.
- Corps published public notices (original and revised) and received hundreds of comments; Corps requested supplemental information from Helis after the comment period and Helis submitted ~500 pages of responses on January 2, 2015.
- Corps’ Memorandum for Record (including EA, 404(b)(1) Guidelines evaluation, Public Interest Review, and Statement of Findings) concluded no significant environmental impact and issued the permit on June 8, 2015.
- Town of Abita Springs sued under the APA, CWA, and NEPA, arguing (1) inadequate public notice/opportunity to comment on material submitted after the comment period and (2) flawed 404(b)(1) alternatives analysis (failure to consider practicable non-wetland alternatives and to apply the presumption against wetland alternatives).
- District court considered cross-motions for summary judgment on the administrative record and denied Abita Springs’ motions while granting the Corps’ cross-motion, finding the Corps did not act arbitrarily or violate procedural or substantive rules.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing | Town says aesthetic, economic, and water-protection injuries (brand, lost visitors/residents, aquifer risk) are concrete and redressable | Corps/Helis: injuries speculative, premised on future fracking/third‑party perceptions, and unsupported by admissible evidence | Court questioned sufficiency of evidence for standing but reached merits; concluded Corps’ decision would be upheld even assuming standing |
| Adequacy of public notice / opportunity to comment | Corps issued notice on an incomplete application and relied on >500 pages submitted after close of comment; thus public lacked meaningful chance to comment on alternatives and key data | Corps: initial public notice and application were sufficient; post-comment applicant responses are properly requested information and Corps has discretion whether to reopen comment period | Corps acted within its discretion; public notice was sufficient and Corps reasonably declined to reopen comment period; no prejudicial error shown |
| Reliance on non-public materials | Abita Springs: Corps relied on non-public exhibits, geologic-review input, and Helis’ response not available for comment, so rationale differed from public record | Corps: supplemental materials only elaborated previously disclosed matters and were not central, and materials were posted online; Corps’ experts (LGS) participated in review | Court found materials did not differ substantially from public information and were not decisive such that lack of supplemental notice prejudiced public participation |
| Alternatives analysis under 404(b)(1) | Corps failed to apply presumption that non-wetland practicable alternatives exist and limited alternatives to nearby wetland sites; did not analyze offsite non-wetland options | Corps/Helis: project purpose (gather geologic data on a specific subsurface zone) and overall project purpose are site‑specific; offsite, non-wetland alternatives would not meet project purpose, so presumption was rebutted | Court upheld Corps’ definition of overall project purpose and found Corps reasonably concluded Helis rebutted presumption and that considered alternatives were practicable; no arbitrary or capricious action |
Key Cases Cited
- Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) (standard for arbitrary and capricious review of agency action)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (arbitrary-and-capricious review principles)
- Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000) (standing standards for environmental plaintiffs)
- Auer v. Robbins, 519 U.S. 452 (1997) (deference to agency interpretations of its own regulations)
- Clapper v. Amnesty Int'l USA, 568 U.S. 398 (2013) (requirement that threatened injury be certainly impending for Article III standing)
- Sierra Club v. U.S. Army Corps of Eng'rs, 450 F. Supp. 2d 503 (D.N.J. 2006) (Corps’ discretion not to reopen comment period on applicant responses)
- Ohio Valley Envtl. Coal. v. U.S. Army Corps of Eng'rs, 674 F. Supp. 2d 783 (S.D.W. Va. 2009) (public notice insufficient where pivotal data withheld)
- Van Antwerp v. U.S. Army Corps of Eng'rs, [citation="362 F. App'x 100"] (11th Cir. 2010) (limits on defining project purpose to avoid evading wetlands‑protection presumption)