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Environmental Defense v. U.S. Army Corps of Engineers

September 13, 2007

ENVIRONMENTAL DEFENSE, ET AL., PLAINTIFFS,
v.
U.S. ARMY CORPS OF ENGINEERS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: James Robertson United States District Judge

MEMORANDUM

Plaintiffs Environmental Defense and National Wildlife Federation challenge the U.S. Army Corps of Engineers' authorization of a flood control project in the St. Johns Bayou and New Madrid Floodway on the west bank of the Mississippi River in the "bootheel" of southeastern Missouri. Plaintiffs ask the court to declare that the Corps, as well as the Secretary of the Army, Pete Geren, have violated the Water Resources Development Act of 1986 ("1986 WRDA"), the Water Resources Development Act of 1974 ("1974 WRDA"), the federal Clean Water Act ("CWA"), the National Environmental Policy Act of 1969 ("NEPA"), the Rivers and Harbor Appropriation Act of 1899 ("RHAA"), and the Administrative Procedure Act ("APA"); to declare that the USDA is violating the Swampbuster provisions of the Food Security Act of 1985 ("FSA") and the APA; and to enjoin these violations.*fn1

In plaintiffs submission, the St. Johns Bayou-New Madrid Floodway Project is a terrible idea: It will not accomplish the flood control benefits claimed for it; its cost estimate relies on a discount rate last seen during the Eisenhower Administration; it violates statutory requirements for cost-sharing by local districts; and the Corps has improperly manipulated its habitat models to make it seem that the project's environmental impacts will be fully mitigated, when they will not. It is not for this court to determine whether the project is a good idea or a bad one, or to pass judgment on the policy implications of public works. On their last point, however, the plaintiffs are correct. As discussed below, the Corps of Engineers has resorted to arbitrary and capricious reasoning -manipulating models and changing definitions where necessary - to make this project seem compliant with the Clean Water Act and the National Environmental Policy Act when it is not. Because it is not, and because the government's arbitrary and capricious actions violate the Administrative Procedure Act, the plaintiffs' motion for summary judgment [87] must be granted. The defendants' cross-motion [92] will be denied. Further construction work on the project will be enjoined, and the Corps will be required to restore the disturbances created by the preliminary construction work that has already been completed.

Background*fn2

"The Mississippi will always have its own way; no engineering skill can persuade it to do otherwise; it has always torn down the petty basketwork of the engineers and poured its giant floods whithersoever it chose, and it will continue to do this." - Mark Twain This case presents the latest chapter in the story of the complicated relationship between the Army Corps of Engineers and the mighty Mississippi River. The flood control project in question (originally two projects, now treated as one) would transform two major drainage basins in a 400,000 acre project area: the New Madrid Floodway, and the St. Johns Bayou Basin immediately to its west. The New Madrid Floodway piece of the project would close a 1500 foot gap in the Mississippi River Levee ("MRL"), construct a concrete box culvert with gates to control water flow between the river and the floodplain, and install a large pump to remove water from behind the closed gates. The St. Johns Basin piece involves construction of a second pump, to remove water that collects in the lower part of the St. Johns Basin, and the widening and straightening of three separate channels to speed water removal from the area.

The New Madrid Floodway is the last sizable section of the lower Mississippi River floodplain that remains connected to the river: 90 percent of the floodplain has been transformed -- mostly into cropland - by the Corps and by the private developers it regulates. 2002 RSEIS, attached to Plaintiffs' MSJ [87] as Ex. 1 at E-53, E-73 (hereinafter "2002 RSEIS"). The construction of approximately 1600 miles of levees and supporting structures along the lower Mississippi began in a coordinated fashion in 1882. When the Corps completed the MRL in 1933, it left a quarter-mile gap along the New Madrid Floodway - the gap the Corps now proposes to close - so that the floodway could serve as a release valve for high water on the river. Id. at 100-01. When inundated, the floodplain provides invaluable habitat for fish and wildlife - half of the river's fish species follow the river as it spills into the floodway during flood conditions, to reproduce away from the river's punishing currents.

Seasonal flooding in the New Madrid Floodway interferes with farming and economic development, however, and the Corps has sought for many years to close the levee gap and drain the floodplain. It received congressional authorization to do so in 1954, and it has spent decades shoring up local support, developing complementary projects, and maneuvering around financial and environmental hurdles, in order to complete what it considers the final component of the Mississippi River Levee system. Especially cumbersome and time-consuming have been the Corps' efforts to satisfy environmental requirements. In the last eight years alone, in response to numerous concerns and objections from government agencies and environmental groups, the Corps has prepared a Draft Supplemental Environmental Impact Statement (1999), a Final Supplemental Environmental Impact Statement (2000), a Revised Supplemental EIS (2002), and a second Revised Supplemental EIS (2006), prompting a biologist studying the project to fret that the agency may run out of abbreviations.

Plaintiffs filed this lawsuit in September 2004 challenging the 2002 RSEIS and subsequent Record of Decision ("ROD"). They moved for summary judgment on their many claims in March 2005 [23]. Defendants cross-moved for summary judgment in May 2005 [31]. In June 2005, three days before the date set for oral argument on the cross-motions, defendants acknowledged a major math error in the 2002 RSEIS, withdrew their challenged ROD and their cross-motion for summary judgment, and moved for a remand so that the Corps could prepare another Revised Supplemental Environmental Impact Statement [40]. I allowed the remand on condition that an appropriate attorneys' fee award be negotiated [48]. When the parties reported their inability to agree on a fee award, I stayed the case anyway, to await the issuance of a revised project plan [51].

In May 2006, plaintiffs moved to compel the filing of an administrative record [53], and in June 2006, plaintiffs moved for a preliminary injunction [58] and filed a second amended complaint [105]. I denied the preliminary injunction in July 2006, finding that, although plaintiffs had demonstrated a substantial likelihood of success on the merits of one of their claims, the first phase of construction was unlikely to inflict irreversible injury [74]. I conditioned that ruling on the Corps' agreement to undo any project construction in the event of plaintiffs' ultimate success on the merits of their case. In August 2006, the Corps announced that it would shortly issue a Notice of Intent to Proceed with the first phase of construction: site preparation for the pumping plant, involving the creation of a cofferdam [80]. Plaintiffs objected to the plan, claiming that it violated the terms of my earlier ruling [81]. After considering the arguments of the parties at a hearing on an emergency motion for a preliminary injunction, again warning the Corps of my intent to order deconstruction if plaintiffs ultimately prevailed, and receiving assurances that defendants would not contest the court's authority to order such a remedy, I found that the first phase of construction would not result in irreparable injury, and I denied the renewed motion for a preliminary injunction.

At a hearing on subsequent cross-motions for summary judgment in February 2007, the Corps reported that the cofferdam construction permitted under my ruling in August 2006 would be complete by May or June 2007.*fn3 The summary judgment motions were taken under advisement and are considered below.

Analysis

Legal Standard

A federal agency's compliance with its statutory and regulatory obligations is subject to review under the APA. The APA creates a cause of action for challenges to final agency actions, findings, or conclusions alleged to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 702(2)(A). While the court's review must be "searching and careful, the ultimate standard of review is a narrow one[;] [t]he court is not empowered to substitute its judgment for that of the agency." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971), overruled on other grounds. This deferential standard guards against "undue judicial interference with [agencies' exercise of] lawful discretion, and [prevents] judicial entanglement in abstract policy disagreements which courts lack both the expertise and information to resolve." Norton v. Utah Wilderness Alliance, 542 U.S. 55, 66 (2004). In applying this standard, the court must engage deeply with the administrative record in order to "determine whether the agency decision was rational and based on consideration of the relevant factors."

Ethyl Corp. v. EPA, 541 F.2d 1, 36 (D.C. Cir. 1976). Action will be set aside under the APA if the agency identified no "rational connection between the facts found and the choice made," if the "explanation for its decision [ran] counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (internal quotations omitted). The Corps' 2002 RSEIS, 2006 RSEIS, and findings of compliance with statutory and regulatory requirements are all reviewable under the APA.

Plaintiffs' Challenges

Plaintiffs' challenges to the St. Johns Bayou-New Madrid Floodway Project fall into three broad categories. First, plaintiffs argue that the Corps' proposed mitigation will not fully offset the project's environmental impacts on fish and waterfowl. Second, they argue that the Corps conducted a deficient analysis of alternative projects and selected a project that insufficiently addresses a primary project purpose. Third, plaintiffs argue that the Corps' project is built upon a severely flawed economic analysis.

Distortions in the Agency's Fish Mitigation Analysis

It is undisputed that the largest environmental impact of the combined project will be on fisheries resources. Absent mitigation, the flood control project would have a devastating impact on fisheries resources in the project area. In its environmental impact statements, the Corps has consistently acknowledged its intent to mitigate fully unavoidable adverse impacts on the fisheries resource. In its 2006 Record of Decision, the Corps again declared its "belie[f] that the fisheries resource will be fully mitigated." 2006 ROD, attached to Plaintiffs' MSJ [87] as Ex. 121 at 1632. Plaintiffs challenge this finding for several reasons, which will be addressed below.

The Corps' mitigation analysis is a major component of the project's compliance with the Clean Water Act. The CWA requires that all projects, such as this one, involving the discharge of dredged material into the waters of the United States, satisfy § 404(b) guidelines promulgated by the Environmental Protection Agency, 33 U.S.C. § 1344(b)(1), as incorporated in the Corps' regulations. The CWA prohibits the Corps from issuing permits to projects that will have a significant adverse impact on the environment,*fn4 and the Corps is required to calculate adverse impacts by analyzing the short and long term consequences of discharges on the "physical, chemical, and biological components of the aquatic environment." 40 C.F.R. § 230.11. The Corps may approve a project only if it is the least damaging practicable alternative, if its discharges do not cause or contribute to significant degradation of the waters of the United States (including, in relevant part, loss of fish and wildlife habitat), and if potential adverse impacts to aquatic ecosystems are minimized to the extent practicable. 40 C.F.R. § 230.10.

In its 2006 RSEIS, the Corps certified the project's full compliance with the Clean Water Act and the Section 404(b)(1) guidelines, and declared that "impacts to significant fish and wildlife resources are fully compensated." 2006 RSEIS, attached to Plaintiffs' MSJ [87] as Ex. 104 at x, table S.2 (hereinafter "2006 RSEIS"). As explained below, however, this certification of compliance "runs counter to the evidence before the agency [and] is so implausible that it [cannot] be ascribed to a difference in view or the product of agency expertise." State Farm, 463 U.S. at 43 (1983).

Environmental impact statements are also reviewed for compliance with the National Environmental Policy Act, which was designed to "prevent or eliminate damage to the environment." 42 U.S.C. § 4321. NEPA is a procedurally-oriented statute intended to prevent uninformed agency action. Agencies must prepare environmental impact statements under NEPA for all projects "significantly affecting the quality of the human environment," 42 U.S.C. § 4332(2)(C), identifying "any adverse environmental effects which cannot be avoided should the proposal be implemented," 42 U.S.C. § 4332(C)(ii). A "reasonably complete discussion of possible mitigation measures" is implicitly required. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989).

"Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA." 40 C.F.R. § 1500.1. For this reason, agencies are under an affirmative mandate to "insure the professional integrity, including scientific integrity, of the discussions and analyses in environmental impact statements[,] identify any methodologies used and . . . make explicit reference by footnote to the scientific and other sources relied upon for conclusions[.]" 40 C.F.R. § 1502.24.

Courts reviewing agency action for compliance with NEPA must confirm "that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious." Nevada v. Dept. of Energy, 457 F.3d 78, 87-88 (D.C. Cir. 2006). Under NEPA, if "the administrative record contains evidence that supports the positions of both the agency and the party seeking relief, the agency is entitled to rely on its experts' tests and observations," Central South Dakota Coop. Grazing Dist. v. U.S. Dept. of Agric., 266 F.3d 889, 899 (8th Cir. 2001), "even if . . . a court . . . find[s] contrary views more persuasive." Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989). "So long as the record demonstrates that the agencies in question followed the NEPA procedures, which require agencies to take a 'hard look' at the ...


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