Sierra Club v. DOISierra Club v. DOI
After years of review, the U.S. Fish & Wildlife Service issued a biological opinion and incidental take statement in connection with the construсtion and operation of a liquefied natural gas terminal in south Texas. Specifically, the U.S. Fish & Wildlife Service authorized the harm or harassment of one ocelot or jaguarundi and determined that the project would not jeopardize the continued existence of the ocelot or jaguarundi. The Sierra Club and Defenders of Wildlife petition for review of the incidental take statement and biological opinion. For the reasons that follow, we DENY the petition.
I.
This challenge asks us to consider whether a decision by Respondent, the U.S. Fish & Wildlife Sеrvice (the “Service“), was arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law. Specifically, at issue is whether the Service complied with its obligations under the Endangered Species Act,
By way of background, we discuss the proposed project, the cats, the relevant portions оf the ESA and the federal regulations, and the agency action.
1. The Project
Intervenor Annova LNG Common Infrastructure, LLC (“Annova“) proposed a $5.2 billion dollar project for the export of liquefied natural gas from the South Texas Gulf Coast region to international markets. Specifically, Annova proposed the construction and operation of a liquefied natural gas export terminal on a 731-acre parcel on the south bank of the Brownsville Ship Channel in Cameron County, Texas (the “project” or the “Annova project“).2
2. The Ocelot and Jaguarundi
As it turns out, the project would occupy land that is also home to the two species of cats at issue in this case: the ocelot and jaguarundi. The ocelot is an endangered cat whose range spans twenty-two countries “from extreme southern Texas and southern Arizona through the coastal lowlands of Mexico to Central America, Ecuador
At present, the Service has worked to protect the ocelot and jaguarundi by maintaining three national wildlife refuges. Additionally, as relevant for the ocelot, the Service has worked to connect the Cameron County and Willacy County populations with each other and with populations in Mexico.
3. The ESA and the Federal Regulations
In a case such as this one, where the Service‘s biological opinion and incidental take statement are at issue, the court focuses its attention on Sections 7 and 9 of the ESA.
To start, Section 7(a)(2) requires that a federal agency consult with the Service to make sure that any authorized agency action “is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species.”3
Although Section 9 of the ESA prohibits takes of listed species, an incidental take statement renders such takes permissible as long as they occur in accordance with the incidental take statement‘s conditions.
4. Agency Action
In this case, the Service issued the opinion and statement in connection with FERC‘s authorization of the Annova project. FERC authorized the project after conducting its environmental analysis, which involved soliciting public comment. From there, FERC prepared an environmental
In FERC‘s biological assessment of the project, it concluded that the project likely would have an adverse effect on the cats, and the Service agreed with this conclusion. As a result of this conclusion, formal consultation was required under the ESA. The Service reached its conclusion after it reviewed the proposed project, and in consultation with biologists, considered the project‘s potential effects on relevant endangered species—the ocelot and the jaguarundi. And the Service‘s biologists worked with FERC and the project‘s proponents5 to develop ways to mitigate any effects on the ocelot and jaguarundi. For example, as a result of these consultations, the project proponents agreed to move the site of the terminal 1,800 feet from the original location to minimize harms to the cats’ habitats.
After this careful review, the Service issued its opinion and determined that the project would not jeopardize the cats’ continued existence, though it may have some adverse effects on the cats. Specifically, the Service determined that the project would likely harm or harass only one cat during construction and the life of the project, and this single “take” was simply not enough to jeopardize the cats’ continued existence. The opinion also stated that if the take limit is exceeded, reinitiation of formal consultation is required by
Petitioners Sierra Club and Defenders of Wildlife (collectively, “Petitioners“), however, contend that the opinion and incidental take statement are arbitrary and capricious. Specifically, they argue that there is no clearly defined “take” or trigger for reinitiation of formal consultation once the take of one ocelot or jaguarundi has occurred, and they challenge the Service‘s no-jeopardy conclusion.
II.
The court reviews the incidental take statement and biological opinion under the same “narrow and highly deferential standard” set forth under thе Administrative Procedure Act. Medina Cnty. Env‘t Action Ass‘n v. Surface Transp. Bd., 602 F.3d 687, 699 (5th Cir. 2010). And the court may not overturn the Service‘s decision unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
Further, the “court is not to substitute its judgment for that of the agency.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009) (quoting Motor Vehicle Mfrs. Ass‘n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). Rather, the court “consider[s] whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378 (1989) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)). And the court may nevertheless uphold an agency‘s decision even if it is “of less than ideal clarity,” so long as “the agency‘s path may reasonably be discerned.” State Farm, 463 U.S. at 43 (quoting Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974)).
We first turn to Petitioners’ challenge to the incidental take statement. Second, we turn to Petitioners’ challenge to the Service‘s no-jeopardy conclusion. As explained below, we reject these challenges because neither the incidental take statement nor the no-jeopardy conclusion is arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law.
1. The Incidental Take Statement is Not Arbitrary and Capricious
Petitioners argue that the incidental take statement is arbitrary and capricious because it fails to (1) set a clear take limit, (2) set an enforceable trigger for reinitiation of formal consultation, and (3) include terms and conditions implementing certain of the reasonable and prudent measures designed to mitigate the effects of the project on the cats. We reject each argument in turn.
First, the incidental take statement clearly specifies the anticipated take of “one endangered cat, (in [the] aggregate, ocelots or a jaguarundi) ... for construction, аnd for the life of the project.” As such, the statement specifies “the amount or extent” of the anticipated take, which is all the regulations require.
The reinitiation trigger is similarly clear and enforceable. If the incidental take limit is exceeded, then FERC must reinitiate consultation immediately. Id.
Further, contrary to Petitioners’ argument, the requirement that a discussion with the Service must occur if a cat is killed during any twelve-month period does not alter the take limit of a single cat during the life of the project to one take per year. Rather, it merely governs the timing of discussion and, recognizing that a take need not be lethal, provides for discussion in the event that any cat dies in the project area. Once the take limit is exceeded, i.e., two cats are taken, reinitiation of formal consultation is necessarily triggered. See id.
Finally, although the reasonable and prudent measures listed in the statement
Based on the foregoing, we find no cause to overturn the agency‘s action based on the challenged incidental take statement.
2. The No-Jeopardy Conclusion is Not Arbitrary and Capricious
Petitioners’ overarching argument regarding the no-jeopardy conclusion depends on reading the Service‘s opinion as conclusory. In support of this reading, Petitioners maintain that the opinion fails to take account of (1) the Rio Grande project (see supra note 2); (2) the effects of other projects when developing the so-called environmental baseline and their aggregate impacts; and (3) the cumulative effects by not aggregating impacts and not considering factors used in the Rio Grande project‘s biological opinion. As explained below, we reject each of these arguments.
To start, under Section 7 of the ESA, once the Service concluded its formal consultation process with FERC regarding the project‘s effects on the endangеred cats, the Service was required to issue a biological opinion, summarizing the information it is based on and discussing the project‘s anticipated effects on the cats, including whether the project is “likely to jeopardize the [cats‘] continued existence.”
First, the Service‘s decision to omit the Rio Grande project in its Annova jeopardy analysis was not arbitrary and capricious because the Rio Grande project location was outside of the Annova project‘s action area.7 The Annova project‘s action area does not include lands north of the Brownsville Ship Channel. Although Petitioners
Further, though FERC considered the Rio Grande project in its description of the marine action area, this consideration was confined to FERC‘s analysis of vessel traffic on marine species, which is not part of the Service‘s consideration and not the subject of this challenge. It should also be noted that when FERC defined the non-marine action area, lands north of the Brownsville Ship Channel were similarly excluded. To the extent that Petitioners attempt to expand the action area based on where the cats roam as opposed to wherе the project‘s direct or indirect effects will occur, this position is misguided. See Oceana, Inc. v. Evans, 384 F. Supp. 2d 203, 228-29 (D.D.C. 2005) (rejecting this position in the case of alleged threats to loggerhead turtles, upholding the agency‘s definition of the action area as where the fishery operates, and maintaining that there is “no support for the proposition that the action area must be extended to include the migratory range of loggerhead turtles“).
Petitioners’ argument that the Rio Grande project site should be included in the action area lest the Annova action area bе too narrowly defined is equally unavailing. Although courts have previously found action areas to be too narrowly defined where they were limited to, for example, lands only within the agency‘s control, see Defs. of Wildlife v. Babbitt, 130 F. Supp. 2d 121, 128-29 (D.D.C. 2001), such is hardly the case here. Indeed, the Service included private lands, public lands, roads, water lines, and agricultural lands.
Second, the Service‘s environmental baseline does not render its no-jeopardy conclusion arbitrary and capricious. Under the ESA‘s regulations, the Service is required to evaluate the “effects of the action” against an environmental baseline, which includes “the past and present impacts of all Federal, State, or private actions and other human activities in the action area.”
Finally, there is no requirement that the Service provide a specific numerical analysis in lieu of a qualitative analysis regarding the effects of the projects on the species. See Interagency Cooperation—Endangered Species Act of 1973, 51 Fed. Reg. 19,926, 19,932 (June 3, 1986) (codified at 50 C.F.R. pt. 402) (discussing that the agency should address “the totality of factors affecting the species“); see also Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059, 1067 (9th Cir. 2004) (explaining that “the ESA does not prescribe how the jeopardy prong is to be determined“), superseded on other grounds by Definition of Destruction or Adverse Modification of Critical Habitat, 81 Fed. Reg. 7214 (Feb. 11, 2016); Mayo v. Jarvis, 177 F. Supp. 3d 91, 138 (D.D.C. 2016) (noting that “nothing in the statute or regulation[s] requires the [Service] to rigidly add up еach incidental take“).
Based on this review, and the fact that the ESA does not define how to measure whether an action will in fact “jeopardize the continued existence” of the cats, the Service could make this determination based on its own expertise. See State Farm, 463 U.S. at 43; see also Pritzker, 75 F. Supp. 3d at 486-87. And such determination provides us no occasion to overturn the agency‘s conclusions.
Third, the Service‘s cumulative effects analysis does not render the Service‘s determinations arbitrary and capricious. “Cumulative effects” are defined as “those effects of future State or private activities, not involving Federal activities, that are reasonably certain to occur within the action area of the Federal action subject to consultation.”
Although courts have found that a cumulative effects analysis was deficient where there was “no analysis whatsoever,” see Greenpeace v. Nat‘l Marine Fisheries Serv., 80 F. Supp. 2d 1137, 1149 (W.D. Wash. 2000), this is not the case here. The Service‘s effects analysis accounted for the effects of each project against the baseline and the cats’ survival and recovery. Indeed, the Service provided a detailed analysis of direct effects of the project on the ocelot and jaguarundi such as habitat loss, human disturbance, operational noise, vehicle collisions, and light emissions. For example, human disturbance could cause the ocelot to flee or change hаbitat selection, and a new access road could increase the risk of a vehicle collision with an ocelot, But in response to these concerns, Annova agreed to take certain actions to mitigate the risk. Regarding the risk of vehicle collisions, for instance, Annova agreed to mandate a 25 miles per hour speed limit. From there, the Service then concluded that the project “may harm or harass” an ocelot and “prevent[] dispersal of cats into otherwise suitable habitat,” but that this anticipated take would nоt likely jeopardize the cats “in the wild across their range.”
To be sure, the regulations neither preclude all actions that will result in the take of an endangered species nor require a
Further still, the Service considered the effects of a natural gas interconnection, оverhead transmission lines, an underground water supply, wind energy projects, other oil and gas projects, and urban development. That the factors considered in the Rio Grande cumulative effects analysis are not identical to those considered here does not render the no-jeopardy conclusion arbitrary and capricious. To be sure, the Rio Grande materials are not part of the record in this case. And we note at that we “may not consider evidence outside of the administrative record.” Harris v. United States, 19 F.3d 1090, 1096 n.7 (5th Cir. 1995).
Petitioners also challеnge the opinion‘s mitigation measures, namely the conservation of acreage, as arbitrary and capricious. This argument amounts to speculation about further explanation that the Service could have provided regarding why the habitat loss at the project site will not jeopardize the endangered cats and how the conserved acreage will offset the acres disturbed by the project. But Petitioners point to no portion of the ESA that would have required the Service to add such explanation and write the opinion any differеntly. Here, the Service biologists worked for five years with FERC and Annova before issuing the opinion and concluding that the loss of the 212 acres—offset by habitat acreage and other conservation measures—will not jeopardize the cats’ continued existence. And this is precisely the type of conclusion that is entitled to deference. Medina Cnty., 602 F.3d at 699.
At bottom, the Service considered all that it was required to consider—and much of what Petitioners argue they failed to consider—except for what it was specifically allowed to omit.
Plainly put, the Service has identified the reasons underlying its conclusion that the ocelot and jaguarundi‘s continued existence would not be jeopardized by the project, and it has articulated a rational connection between these reasons and that conclusion. This is all that the ESA and its implementing regulations require. See Luminant Generation Co. LLC v. EPA, 714 F.3d 841, 850 (5th Cir. 2013); see also Atchafalaya Basinkeeper v. U.S. Army Corps of Eng‘rs, 894 F.3d 692, 697 (5th Cir. 2018).
Therefore, the Service‘s biological opinion was not arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law.
IV.
For the foregoing reasons, we DENY the petition.