CITY OF SHOREACRES; et al., Plaintiffs, City of Shoreacres; City of Taylor Lake Village, Texas; Galveston Bay Conservation and Preservation Association; Texas Committee on Natural Resources; Galveston Bay Foundation; Houston Yacht Club; Professionals Involved in Seafood Concerned Enterprises; Gulf Restoration Network; City of Seabrook; City of El Lago, Plaintiffs-Appellants, v. Leonard D. WATERWORTH, Colonel, District Engineer, Galveston District-U.S. Army Corps of Engineers; Robert B. Flowers, Lieutenant General, Commander and Chief of Engineers, U.S. Army Corps of Engineers; Les Brownlee, Acting Secretary of the Army; United States Army Corps of Engineers, Defendants-Appellees, Port of Houston Authority, Intervenor Defendant-Appellee.
No. 04-20527
United States Court of Appeals, Fifth Circuit
August 8, 2005
420 F.3d 440
Judith R. Blakeway, Strasburger & Price, San Antonio, TX, for City of Seabrook.
John A. Bryson (argued), U.S. Dept. of Justice, Environment & Natural Resources Div., Washington, DC, for District-U.S. Army Corps of Engineers, Robert B. Flowers, Les Brownlee and United States Army Corps of Engineers.
Sharon M. Mattox (argued), Vinson & Elkins, Houston, TX, for Port of Houston Authority.
Nathan Allan Wesely, Royston, Rayzor, Vickery & Williams, Houston, TX, for West Gulf Maritime Ass‘n, Amicus Curiae.
Gregory Thomas Broderick, Pacific Legal Foundation, Sacramento, CA, for Pacific Legal Foundation and John A. Rapanos, Amici Curiae.
Anthony G. Buzbee, Buzbee Law Firm, Galveston, TX, for International Longshoremen‘s Ass‘n Local No. 24, International Longshoremen‘s Ass‘n Local No. 28, International Longshoremen‘s Ass‘n Local No. 1530 and International Longshoremen‘s Ass‘n Local No. 1351, Amici Curiae.
Appeal from the United States District Court for the Southern District of Texas.
Before GARWOOD, SMITH and CLEMENT, Circuit Judges.
GARWOOD, Circuit Judge:
Plaintiffs-appellants brought this suit under the National Environmental Policy Act (NEPA),
Facts and Proceedings Below
On October 8, 1998, the Port filed an application with the Corps for a
The Corps undertook the comprehensive technical and public interest review required by the Code of Federal Regulations. See, e.g.,
Meanwhile, as the Corps was considering the Bayport permit application, it was also considering a similar dredge and fill permit application filed in April 2000 by Texas City, Texas to build a six-berth cargo terminal at Shoal Point in Galveston County along the southwestern coast of Galveston Bay. The Corps issued a permit to Texas City on April 23, 2003, approximately one month before it handed down its FEIS on the Port‘s Bayport permit application.
On January 29, 2004, appellants filed their second (and final) amended complaint asking the district court to vacate the permit and enjoin the Port from proceeding with the Bayport project because the Corps had issued the permit in violation of the CWA and NEPA.1 Appellants also sought a preliminary injunction against construction while judicial review was pending. Rather than rule on this motion, the district court agreed to an expedited pretrial schedule and a summary judgment ruling by May 4, 2004. The Port then agreed to “stand still” while the case went forward through summary judgment. The parties filed cross-motions for summary judgment in April 2004, and the district court granted summary judgment to appellees and against appellants on May 4, 2004. Final judgment was entered the same day.
1. Standard of Review
We review a grant of summary judgment de novo under the same standard applied by the district court. Terrebonne Parish Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir. 2002).
The decision of the Corps to grant a permit under
This deferential standard of review applies regardless of whether we are reviewing the Corps’ decision under the CWA or NEPA.
2. The Clean Water Act
a. Determination of Wetlands Jurisdiction
The centerpiece of appellants’ challenge to the dredge and fill permit is that the Corps erroneously determined the extent of its regulatory jurisdiction over the wetlands at the Bayport site.2 Appellants maintain the entire approximately 146 acres of wetlands at the Bayport site constitutes jurisdictional wetlands, substantially more than what the Corps concluded were present (the Corps found only 19.7 acres of jurisdictional wetlands, as well as 126.7 acres of non-jurisdictional wetlands and 1.56 acres of intertidal mud flats). Appellants contend that the Corps, by undercounting the acreage within its wetlands jurisdiction, corrupted the entire decisional process under the CWA.3
According to the ROD, the Corps, using its Wetlands Delineation Manual, initially determined on April 28, 1999, that there were 102 acres of wetlands at the Bayport site subject to its regulatory jurisdiction.4 The Corps concluded, however, that it needed to reevaluate its jurisdictional determination after the Supreme Court handed down Solid Waste Agency v. United States Army Corps of Eng‘rs, 531 U.S. 159, 121 S.Ct. 675, 683-84, 148 L.Ed.2d 576 (2001) (holding that the “migratory bird rule,” upon which much of the Corps’ initial determination in this case had been predicated, overreached the Corps’ authority under the Clean Water Act). After re-surveying Bayport, the Corps concluded that of the total some 146 acres of wetlands at the site only 19.7 acres came within its jurisdiction. The Corps then evaluated the Port‘s permit application in light of this determination.
Even assuming that all wetlands and other aquatic areas on the Bayport site were jurisdictional, which is not the case, the mitigation provided by the [Port], involving over 1,130 acres of wetlands and other habitat, adequately compensates for environmental impacts as evidenced by the acceptance of this plan by the [other state and federal] resource agencies. As a result, even if the [Corps] were to conclude that all of the aquatic areas on the site, including all of the wetlands on the site, were subject to [Clean Water Act] jurisdiction, the [Port] has provided ample mitigation to compensate for the loss of all aquatic areas on the site that will be filled in or otherwise degraded by the project. Consequently, the [
33 U.S.C. § 1344 ] permit that the [Corps] proposes to issue would still be fully justified in this case by the generous mitigation package offered by the [Port]. Therefore, issuance of the proposed permit would still be appropriate under all applicable laws and regulations even if all aquatic areas on the project site were subject to [Clean Water Act] jurisdiction.
(emphasis added). Given that the Corps clearly would have made the same decision even if it used the wetlands determination that appellants advocate, we need not consider whether the Corps abused its discretion in concluding that it could exercise regulatory jurisdiction over only 19.7 acres of wetlands. Manning v. Upjohn Co., 862 F.2d 545, 547 (5th Cir. 1989) (“Principles of judicial restraint dictate that if resolution of an issue effectively disposes of a case, we should resolve the case on that basis without reaching any other issues that might be presented.“).5
b. Practicable Alternatives
The Corps may not issue a
While Shoal Point and Pelican Island are arguably plausible alternatives given that they are reasonably proximate to Bayport and may be environmentally acceptable, they must nevertheless be “practicable” under a detailed test. An alternative is practicable only if
“it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes. If it is otherwise a practicable alternative, an area not presently owned by the applicant which could reasonably be obtained, utilized, expanded, or managed in order to fulfill the basic purpose of the proposed activity may be considered.”
The Corps contends that neither Shoal Point nor Pelican Island is a “practicable alternative” under this definition for several reasons. First, Shoal Point was not “available.” On April 23, 2003, the Corps issued a permit to Texas City to build a six-berth cargo and cruise ship terminal at Shoal Point and thus Shoal Point was not available to the Port. Shoal Point was also unavailable for the additional reason that the Port undisputedly has no authority to condemn land outside of Harris County,
Furthermore, neither Shoal Point nor Pelican Island is a logistically feasible alternative, and thus is not “practicable,” because the Port intends to fund its project with the proceeds of a 1999 Harris County bond issue. The proceeds of this bond issue, however, could not legally be spent outside of Harris County, which excludes both Shoal Point and Pelican Island because they are in Galveston County.
In addition, building the new terminal at Shoal Point or Pelican Island would not comport with the Port‘s “overall project purpose,” which was to further expand Harris County as one of the nation‘s major ports. Situating the port at either Shoal Point or Pelican Island would frustrate the overall project purpose in the further sense that it would needlessly complicate, rather than simplify, the logistics of maritime commerce through Harris County because the shipping industry would have to move passengers and goods through locations that are comparatively remote from metropolitan Houston.
Appellants only dispute two of these reasons. They contend that the absence of condemnation power and the 1999 bond issue do not ipso facto preclude acquiring land outside of Harris County because the Port could have financed the project at Shoal Point or Pelican Island with operating revenues. However, there is no evidence that the Port has any surplus operating revenues, much less that any such would be sufficient for that purpose, and the passage of the bond issue suggests otherwise. Even if we were to consider the Corps’ other reasons arbitrary and capricious, which we hold they are not, appellants would still not prevail under this objection because an unowned alternative site is a “practicable alternative” under
Appellants contend that the scope of shipping to and from the Bayport terminal will eventually lead to deepening the Houston Ship Channel from forty-five to fifty feet to accommodate the larger vessels that are expected to traverse the oceans in the future.7 They argue that deepening the channel will have an adverse effect on Galveston Bay‘s freshwater ecosystems because it will alter the Bay‘s salinity. Because, they allege, the Bayport project will lead to the deepening of the Houston Ship Channel and such deepening will “cause or contribute to significant degradation of the waters of the United States[,]”
3. The National Environmental Policy Act
Unlike the Clean Water Act, which has substantive environmental goals,
NEPA requires, among other things, the preparation of a comprehensive environmental impact statement whenever “proposals for legislation and other major Federal actions significantly affect[] the quality of the human environment . . .”
a. The No-Action Alternative
An essential feature of an EIS is its analysis of alternatives to the proposed action. This alternatives analysis, described by the relevant regulation as “the heart of the environmental impact statement[,]” must “[r]igorously explore and objectively evaluate all reasonable alternatives” to the proposed action, including the “no-action alternative” in which it is assumed that the project does not go forward.
The Corps responds that its Bayport FEIS was all but finished when the ROD and permit for the Texas City project were issued. In rejecting a request to prepare a supplemental EIS, the Corps decided not to treat the proposed Shoal Point project as “an existing condition” for the purposes of the Bayport FEIS because the mere issuance of a
b. Deepening the Houston Ship Channel
Appellants contend, as discussed previously, supra § 2(c), that the cargo ships of the future will be too large to use the Houston Ship Channel at its current depth of forty-five feet and will require future dredging to fifty feet. By being an otherwise potential destination for such vessels, appellants assert that the Bayport terminal, and by extension the
First, before we examine whether deepening the Houston Ship Channel is too speculative to warrant consideration as a cumulative impact, there is meaningful doubt that deepening the channel can be an effect NEPA requires the Corps to consider at all. NEPA requires the Corps to take into account both the direct and indirect adverse environmental consequences of issuing a
However, it is doubtful that an environmental effect may be considered as proximately caused by the action of a particular federal regulator if that effect is directly caused by the action of another government entity over which the regulator has no control. In DOT v. Public Citizen, the Supreme Court held that the Department of Transportation had no duty under NEPA to prepare an environmental assessment of the effects of Mexican motor carriers using American highways because the authority to allow or prohibit Mexican motor carriers into the country rested solely with the President. 124 S.Ct. at 2214-15. The Court held, in other words, that pollution from Mexican motor carriers was not an “effect” that the DOT had to consider because no “action” by the DOT would “cause” Mexican motor carriers to enter the United States. It is undisputed that the Houston Ship Channel can only be deepened by an Act of Congress, not any decision by the Corps.11 If the rationale of Public Citizen is applicable, the deepening of the Houston Ship Channel, if it ever occurs, would not be treated as a
The Port properly cites several reasons why asserting that the channel will be deepened is pure speculation. First, the Corps expressly concluded that for the “foreseeable” future “almost” the only vessels using the Bayport terminal would be Panamax-class ships, the largest able to traverse the Panama Canal. Such vessels already operate safely in the Houston Ship Channel and would not require deepening it in the future. See note 7, supra. The Port also points to a report prepared for Texas City‘s Shoal Point project indicating that there is no plausible economic justification for deepening the channel in the foreseeable future. In addition to the absence of any need to deepen the channel, it could only be done, as mentioned above, by Congress alone and there is no proposal for any such project.13 Finally, even if there were a proposal, history indicates that it takes decades to dredge the channel. The Port notes that the channel is only now being dredged to forty-five feet and this comes more than thirty years and three hundred million dollars after the deepening was initially proposed.14
Significantly, appellants themselves offer absolutely no concrete analysis with respect to the likelihood that the channel will need to be dredged within the Corps’ twenty-seven year planning horizon. Rather than explain how the Corps erroneously interpreted the evidence in the administrative record, they simply recite the platitude that mere uncertainty does not equal a lack of reasonable foreseeability. While this is true, indeed obvious, in a sense, such proposition does not mean that it was an abuse of discretion for the Corps to treat deepening the Houston Ship Channel as too speculative to warrant consideration as a cumulative impact of the Port‘s dredge and fill permit. None of the cases appellants cite involves an undertaking remotely resembling in any of its implications an enterprise like deepening the Houston Ship Channel. It cannot be said that the Corps acted arbitrarily and capriciously under NEPA in reaching its decision.
c. The Split Alternative
Appellants also argue that it was arbitrary and capricious for the Corps to issue a dredge and fill permit to the Port for the construction of a ten-berth terminal at Bayport after granting a permit to Texas City for the construction of a six-berth terminal at Shoal Point because the Corps expressly rejected splitting the Bayport project‘s seven cargo berths between the two sites. Appellants contend that if it was environmentally unacceptable to split the Bayport project into four cargo berths at Bayport and three cargo berths at Shoal Point, then it must, a fortiori, be environmentally unacceptable for there to be seven cargo berths at Bayport (plus three cruise ship berths) and six at Shoal Point.
Conclusion
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
Notes
Id. (citations omitted); see alsoThe wetlands determination is precisely the type of agency decision that is normally subject to limited judicial review. The EPA developed an extensive administrative record in making its decision; it collected reports from its own expert consultants, as well as from the parties. The determination itself, which requires an analysis of the types of vegetation, soil and water conditions that would indicate the existence of wetlands, is the kind of scientific decision normally accorded significant deference by the courts. De novo review would permit the courts to intrude into an area in which they have no particular competence.
Of course, nothing in the challenged permit authorizes or purports to authorize any channel deepening. As all parties recognize, any deepening of the Houston Ship Channel requires Congressional authorization.
The other two prongs of the test are (1) whether the environmental impact statement is sufficiently detailed to allow others to understand its reasoning; and (2) whether the alternatives are sufficiently well developed to allow a “reasoned choice.” Id.