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Bayou Liberty Ass'n v. Corps of Eng'rs

ELR Citation: 29 ELR 20258
Nos. Civ. A. 98-2910, (E.D. La., 11/13/1998) unpublished

The court holds that an environmental group is not entitled to a preliminary injunction suspending a proposed retail development's construction permit and ordering the U.S. Army Corps of Engineers to prepare an environmental impact statement (EIS) addressing the development's impact on flooding. The court first assumes, for the purposes of the instant motion, that plaintiff has standing to bring this action. The court considers it highly unlikely that the group's alleged injury will be redressed by the relief sought. However, because this case presents a suit to enforce a procedural requirement for an EIS, the group need not establish with certainty that if the court were to require preparation of an EIS, the permit would be denied. Next, the court holds that the group is not entitled to a preliminary injunction because it has failed to meet the necessary requirements for that relief. The administrative record indicates that contrary to the environmental group's assertion, the Corps did consider the possible effect on flooding of this development in isolation, as well as cumulatively. Furthermore, the court finds that the reports of the permit applicant's engineers are no less persuasive than the reports of the environmental group's engineers, and thus, the Corps was justified in relying on the reports of the applicant's engineers. Accordingly, the Corps' decision to issue the permit was not arbitrary and capricious. Therefore, not only has the environmental group failed to demonstrate a substantial likelihood of success on the merits, it is clear to the court that the group cannot meet the required burden of proof at trial.

Counsel for Plaintiff
Anne Sobol
Law Offices of Anne Sobol
235 Robert St., Slidell LA 70458
(504) 645-0605

Counsel for Defendant
Sandra E. Gutierrez
U.S. Attorney's Office
210 Hale Boggs Federal Bldg.
501 Magazine St., New Orleans LA 70130
(504) 680-3000