ATCHAFALAYA BASINKEEPER; LOUISIANA CRAWFISH PRODUCERS ASSOCIATION-WEST; GULF RESTORATION NETWORK; WATERKEEPER ALLIANCE; SIERRA CLUB, and its Delta Chapter, Plaintiffs - Appellees
UNITED STATES ARMY CORPS OF ENGINEERS, Defendant-Appellant BAYOU BRIDGE PIPELINE, L.L.C.; STUPP BROTHERS, INCORPORATED, doing business as Stupp Corporation, Intervenor Defendants - Appellants
Appeals from the United States District Court for the Middle
District of Louisiana
REAVLEY, JONES, and GRAVES, Circuit Judges.
H. JONES, Circuit Judge
United States Army Corps of Engineers (the "Corps")
and Bayou Bridge Pipeline, LLC ("Bayou Bridge," a
convenience that includes co-appellant Stupp Brothers, Inc.),
appeal the district court's grant of a preliminary
injunction preventing Bayou Bridge from constructing a
pipeline in part through the Atchafalaya Basin of southern
Louisiana. The injunction was based on the Corps' alleged
failure to satisfy the demands of the National Environmental
Policy Act in issuing a construction permit. Because the
court misperceived the applicable regulations, and the
Corps' analysis, properly understood, vindicates its
decision that an Environmental Assessment sufficed under
these circumstances, we vacate the preliminary injunction and
remand to the district court.
December 14, 2017, after a year-long review, the Corps issued
Bayou Bridge a permit under Section 404 of the Clean Water
Act ("CWA"), 33 U.S.C. § 1344, and Sections 10
and 14 of the Rivers and Harbors Act of 1899, 33 U.S.C.
§§ 403, 408, allowing it to build a 162-mile crude
oil pipeline from Lake Charles, Louisiana to terminals near
St. James. Portions of the pipeline will cross the
Atchafalaya Basin, affecting wetlands. The discharge of
dredge or fill material into these wetlands necessitated the
Corps' permitting action under the Clean Water Act, 33
U.S.C. § 1311(a), while the Rivers and Harbors Act
requires permitting for structures in or affecting
"navigable waters" as defined by regulations.
discharging its permit responsibilities, the Corps was
required to implement the National Environmental Policy Act
("NEPA"), a procedural statute, which requires
certain steps before federal agencies may approve projects
that will affect the environment. To comply, the agency first
prepares an environmental assessment ("EA").
Sabine River Auth. v. U.S. Dep't of Interior,
951 F.2d 669, 677 (5th Cir. 1992). As this court has held,
"[a]n EA should be a 'concise public document . . .
that serves to . . . [b]riefly provide sufficient evidence
and analysis for determining whether to prepare an
[environmental impact statement].'" O'Reilly
v. U.S. Army Corps of Eng'rs, 477 F.3d 225, 228 (5th
Cir. 2007) (quoting 40 C.F.R. § 1508.9(a)). If the
agency finds during this process that the proposed action
will result in "significant" effects to the
environment, then it must also prepare an environmental
impact statement ("EIS"). Id.; 42 U.S.C.
§ 4332(C). If the agency finds that the project will not
have a significant impact, it will conclude with a
"Finding of No Significant Impact"
("FONSI") and no EIS will be required. Sabine
River Auth., 951 F.2d at 677.
instance, the Corps authored two EAs, one under the Rivers
and Harbors Act (the "408 EA"), and the other under
Section 404 of the CWA (the "404 EA"). Based on
those assessments, which together run over two hundred pages,
plus appendices of nearly 200 pages more, the Corps
determined that an EIS would not be necessary for this
project and issued a FONSI.
Basinkeeper and other organizations interested in the
Atchafalaya basin brought suit in January 2018 against the
Corps and sought a preliminary injunction to redress alleged
violations of NEPA and the CWA. Bayou Bridge and Stupp
Brothers intervened as defendants. The district court held an
expedited hearing even before the complete administrative
record could be filed. The court's decision, filed soon
afterward, rejected a number of Appellees' contentions
but found that Appellees had shown irreparable harm and had
demonstrated a likelihood of success on the merits as well as
other prerequisites of preliminary relief for two of their
claims: (1) the EAs violated NEPA and the CWA by failing to
adequately analyze mitigation for the loss of cypress-tupelo
swamp along the pipeline right of way through the Basin, and
(2) the EAs violated NEPA and the CWA by failing to
adequately consider historical noncompliance by other
pipelines and the cumulative effects of this project. The
resulting preliminary injunction stopped construction only
"within the Atchafalaya Basin."
sought a stay of the injunction pending appeal, which this
court granted in a split decision.
raise a number of issues for review: that the district court
applied an incorrect standard for determining injunctive
relief; abused its discretion in finding Appellees likely to
succeed on the merits and affirming the other bases for
injunctive relief; and issued an improper and overbroad
injunction. We need only rule on the court's errors in
assessing the likelihood that Appellees will succeed on the
of a preliminary injunction is reviewed for abuse of
discretion. La Union Del Pueblo Entero v. FEMA, 608
F.3d 217, 220 (5th Cir. 2010). Factual determinations within
the preliminary injunction analysis are reviewed for clear
error, and legal conclusions within the analysis are reviewed
de novo. Id. A preliminary injunction is an
extraordinary remedy. In addition to proving a likelihood of
prevailing on the merits, the movant must demonstrate a
substantial threat of irreparable injury if the injunction is
not granted; the threatened injury outweighs any harm that
will result to the non-movant if the injunction is granted;
and the injunction will not disserve the public
interest." Id. at 219. The district court
abuses its discretion if it relies on clearly erroneous
factual findings in deciding whether to grant a preliminary
injunction or relies on "erroneous conclusions of
law." O'Reilly, 477 F.3d at 238 (internal
citations and quotations omitted).
Corps' actions under the NEPA and CWA are subject to
review under the Administrative Procedure Act
("APA"). As relevant here, a court will uphold an
agency action unless it finds it to be "arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law." 5 U.S.C. § 706(2)(A);
Coastal Conservation Assoc. v. U.S. Dep't of
Commerce, 846 F.3d 99, 110-11 (5th Cir. 2017). This is a
demanding standard. The Supreme Court carefully explained
factors that inform judicial review under this provision.
Motor Vehicle Mfrs. Ass'n v. State Farm Mut.
Auto Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866-67
(1983), and its words are worth repeating here:
The scope of review under the "arbitrary and
capricious" standard is narrow and a court is not to
substitute its judgment for that of the agency. Nevertheless,
the agency must examine the relevant data and articulate a
satisfactory explanation for its action including a
"rational connection between the facts found and the
choice made." In reviewing that explanation, we must
"consider whether the decision was based on a
consideration of the relevant factors and whether there has
been a clear error of judgment." Normally, an agency
rule would be arbitrary and capricious if the agency has
relied on factors which Congress has not intended it to
consider, entirely failed to consider an important aspect of
the problem, offered an explanation for its decision that
runs 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.
district court decision.
district court analyzed at length each of the Appellees'
specific challenges to the procedural and substantive
sufficiency of the EAs. The court rejected the complaint that
the Corps' analysis of the environmental impact on the
Basin of possible oil spills was insufficient and therefore
arbitrary and capricious. The court also rejected the
assertion that the Corps provided defective public notice of
the "type and location of the proposed mitigation"
measures; as the court noted, the public comments, many of
which were made by the Appellees here, were addressed and
responded to by the Corps in 26 pages of the Section 404 EA.
court then focused on specific impacts of this project in the
Basin, i.e., that 455.5 acres of "jurisdictional
wetlands" will be temporarily affected and approximately
142 acres of those wetlands "[will] be permanently
converted from forested to herbaceous wetlands within the
permanent right-of-way." The Section 404 EA states that
"[t]he proposed project will change and/or reduce
wetland functional quality along the proposed ROW by
conversion of forested habitat types." The EA identifies
"[a] key issue(s) of concern in this watershed is the
loss of wetland function and value."
court found three failures in the Corps' ultimate FONSI
determination. First, the court acknowledged that
"reliance on mitigation measures may reduce a
project's impacts below the level of significance,"
quoting O'Reilly, 477 F.3d at 231, and the
agency's reasoning "need not be laid out to the
finest detail . . . ." However, "an EIS involving
mitigation" may not be predicated on "mere
perfunctory or conclusory language . . .," quoting
O'Reilly, 477 F.3d at 231-32. The court believed
the Corps was perfunctory.
the court accepted the Appellees' reading of the relevant
CWA regulation, 33 C.F.R. §332.3, and concluded it does
not "impos[e] a mechanical and rigid hierarchy"
according to which out-of-kind mitigation credits within the
watershed must be substituted for alternative in-kind
mitigation alternatives. The court accordingly criticized the
Corps' EAs for failing to discuss "how the
mitigation choices serve the stated goal of
'replac[ing] lost functions and services;'" and
failing to analyze in the Section 404 EA whether a
'preference' for mitigation bank credits was
appropriate or whether the particular mitigation bank credits
to be acquired are "located where it is most likely to
successfully replace lost functions and services."
(quoting 33 C.F.R. § 332.3(b)(1)). The court found the
404 EA "devoid" of data analyzing the consequence
of the "irretrievabl[e] los[s]" of 142 acres of
cypress/tupelo swamp wetlands. Consequently, "there is
not one iota of discussion, analysis, or explanation"
how out-of-kind credits mitigate the loss of function of the
cypress/tupelo swamp. The court also found "precious
little analysis" of what "best practices" the
Corps required for Bayou Bridge's construction will be
and how they offset temporary impacts of construction within
the Basin. For these basic reasons, the court determined that
the FONSI for this project was arbitrary and capricious.
the court also discussed Appellees' contention that
because earlier pipeline projects through the Basin had
created spoil banks and other detrimental conditions, the EAs
did not properly address "cumulative impacts" of
this project in terms of those defaults. The court agreed
with Appellees' contention, referring to
O'Reilly, 477 F.3d at 234-35, and 40 C.F.R.
§§ 1508.7 and 1508.25. It concluded that Appellees
had demonstrated a likelihood of success on the merits in
showing the deficiency of the EAs.
in mind that the Corps' NEPA obligation was limited to
discussing relevant factors and explaining its decision, not
to reaching conclusions that this court or the district court
approves, Robertson v. Methow Valley Citizens
Council, 490 U.S. 332, ...