Bayou Liberty Ass'n v. United States Army Corps of Engineers

No. Civ. A. 98-2910 (E.D. La. November 13, 1998)

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

[29 ELR 20258]

Barbier, J.:

Order

Before the court is the Motion for Preliminary Injunction filed by plaintiff, Bayou Liberty Association ("BLA"), which the Court has consolidated with plaintiff's suit for permanent injunctive and declaratory relief, because of the identity of issues presented in plaintiff's Motion for Preliminary Injunction and Complaint for Injunctive and Declaratory Relief in this non-jury matter. Fed. R. Civ. P. 65(a)(2).¹ Defendant, the U.S. Army Corps of Engineers ("Corps") opposes the motion, as do intervenors, permit applicants Wal-Mart, Stores, Inc. and Home Depot, USA, Inc. After oral argument on the motion on October 16, the Court denied BLA's motion for a temporary restraining order, and issued a briefing order to the parties. At the hearing, the parties consented to submit the matter on memoranda, affidavits, and documents, including the Corp's Administrative Record. The Court issued a briefing order to the parties, and pleadings were deemed complete as of November 9, 1998, at which time the Court took the matter under submission. Having reviewed the memoranda of counsel and applicable law, the Court finds that plaintiff is not entitled to the relief sought, for reasons more fully discussed below.

Background

This action has its genesis in the grant of a permit² by the Corps for the construction of a Wal-Mart, Sam's Club, and Home Depot retail store in the Bayou Liberty area of St. Tammany Parish. BLA, comprised of 129 Bayou Liberty area residents concerned that the proposed development will cause an increase in flooding in the area, challenges the issuance of the permit on the ground that the environmental assessment ("EA"), in which the Corps concluded that an environmental impact statement was not required, "was flawed and legally inadequate."³

The EA was drafted after a lengthy process in which there was broad public participation, including that of plaintiff, the Corps, the permit applicants, the U.S. Environmental Protection Agency, the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, the Louisiana Department of Environmental Quality, an officer of the Louisiana Department of Culture, Recreation and Tourism, and the St. Tammany Parish Police Jury,⁴ as well as many individual citizens⁵ and other environmental organizations.⁶

At the conclusion of this process, on September 24, 1998, the Corps issued a permit⁷ together with a Permit Evaluation and Decision Document, which included the EA, and reflected the Corps' finding of no significant impact ("FONSI").⁸ The Corps' Administrative Record reflects that the FONSI was based upon the Corps' review of hydraulic calculations⁹ and drainage analyses¹⁰ of the permit applicants, including discussions of detention requirements,¹¹ detention pond routing,¹² a drainage and grading plan,¹³ storage volume need,¹⁴ a comparison of pre-project and post-project discharge,¹⁵ the St. Tammany Master Drainage Plan,¹⁶ public comment,¹⁷ and the comments of Dr. Joseph Suhayda and Dr. Steven Faulkner, experts retained by plaintiff.¹⁸ The record also reflects that the grant of the permit was conditioned upon the applicants undertaking certain mitigation actions — restoring 39.2 acres of pine savanna, to compensate for 33.8 acres of wetlands that would be lost through the project,¹⁹ and constructing detention ponds to replace wetland floodwater storage²⁰ — which they have done.

In addition to the flooding issues considered, the EA reveals that the Corps also considered the need for the project, possible alterative sites, environmental impact, impact on wetlands and habitat loss, and the potential for economic gains.²¹

Because of its finding of no significant impact, the Corps did not prepare an Environmental Impact Statement ("EIS"), a more detailed analysis which is required prior to "major federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(c). Dissatisfied with this result, BLA filed the instant motion for injunctive relief, requesting the Court to suspend the permit, and remand the matter to the Corps with instructions that it prepare an EIS.

Discussion

Under the National Environmental Policy Act ("NEPA"), 42 U.S.C. [§] 4321 et seq., a permit of the nature under scrutiny in this action is issued only after preparation of an EA. An EA, typically 15 pages long, is a "concise public document" that serves to "briefly provide sufficient evidence and analysis for determining whether to prepare an EIS" and shall include brief discussions of need, alternatives, environmental impacts and agencies and persons consulted. 40 C.F.R. 1508.9. If the finding of the EA is that the project consists of a non-major action or a major action which does not have significant environmental impact, an EIS is not required. Sabine River Authority v. U.S. Dept. of Interior, 951 F.2d 669, 677 [22 ELR 20633] (5th Cir.), [29 ELR 20259] cert. denied, 113 S. Ct. 75 (1992); Sierra Club v. Hassel, 636 F.2d 1095, 1097 [11 ELR 20227] (5th Cir. Unit B Feb. 1981). Additionally, if a mitigation condition is present which will eliminate all significant environmental impact, no EIS is required. Roanoke River Basin Ass'n v. Ronald E. Hudson, 940 F.2d 58, 62 [21 ELR 21238] (4th Cir. 1991), cert. denied, 502 U.S. 1092, 112, 112 S. Ct. 1164, __, 117 L. Ed. 2d 411, (1992); C.A.R.E. Now v. F.A.A., 844 F.2d 1569, 1575 [18 ELR 21081] (11th Cir. 1988). In the instant case, the Corps issued a FONSI (and therefore did not prepare an EIS), after the permit applicants' complied with mitigation requirements. It is this finding which BLA objects to, arguing that the EA fails to adequately consider the effect of the development taken alone on Bayou Liberty, as well as the cumulative effect of development on flooding in the Bayou Liberty Basin.

1. Standing

A threshold issue in this matter is the question of BLA's standing to bring this action. In addition to the organizational standing requirement applicable to this case, BLA must demonstrate constitutional standing. To demonstrate constitutional standing, a plaintiff must demonstrate: (1) an injury in fact; (2) a causal connection between the injury and the conduct complained of; and (3) the likelihood that the injury will be redressed by a favorable court decision ("redressability"). Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 [22 ELR 20913] (1992). On the facts presented here, the Court has serious doubts that the redressability requirement for constitutional standing has been met. The injury BLA alleges is an increased risk of harm (i.e. flooding) due to the Corps' allegedly uninformed decision to issue the permit. The relief plaintiff seeks is a remand to the Corps for further consideration of the permit application and the preparation of an EIS. Apparently, plaintiff harbors the hope that if forced to reconsider and produce an EIS, the Corps will change its mind and deny the permit. However, the Corps has already produced a 20-page EA exceeding the statutory minimum, based on a nearly 700 page administrative record, after broad community and agency involvement, including involvement by BLA and its experts. Given these extensive proceedings which culminated in the issuance of the permit, the Court does not consider it likely that if remanded to the Corps for further consideration, the Corps would reverse its prior decision. Thus, the Court considers it highly unlikely that the plaintiff's alleged injury will be redressed by the relief sought.

While in any other context, failure to demonstrate to a certainty that plaintiff's injury would be remedied by the relief requested would result in dismissal for lack of standing, because this case presents a suit to enforce a procedural requirement for an EIS, plaintiff need not establish with certainty that if the Court were to require preparation of an EIS, the permit would be denied. See Lujan, 504 U.S. at 572, 112 S. Ct. at 2142, and id. at n.7. Accordingly, while acknowledging that plaintiff's standing is tenuous, for purposes of the instant motion, it is assumed.

2. Unlikelihood of Success on the Merits

Even assuming that plaintiff has standing to bring this action, plaintiff is not entitled to a preliminary injunction pursuant to Federal Rule of Civil Procedure ("FRCP") 65, because it has failed to meet the necessary requirements for that relief. In order to obtain a preliminary injunction, plaintiff must demonstrate: (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury if the injunction is not granted; (3) the threatened injury outweighs any injury the injunction might cause; and (4) the injunction will not disserve the public interest. Canal Authority of Florida v. Calloway, 489 F.2d 567, 572 [4 ELR 20164] (5th Cir. 1974).

In considering whether it is likely that plaintiff can succeed on the merits, the Court must employ a highly deferential standard of review. The Court must uphold the Corps' decision absent a finding that the decision was "arbitrary, capricious, an abuse of discretion or otherwise not according to law." Administrative Procedures Act, 5 U.S.C. § 706(2)(A); Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 376 109 S. Ct. 1851, 1860 [19 ELR 20749] (1989).²² Applying the "arbitrary and capricious" standard, courts must uphold administrative action "if the agency has considered the relevant factors, and articulated a rational connection between the facts found and the choice made." Sierra Club v. Glickman, 67 F.3d 90, 97 [26 ELR 20160] (5th Cir. 1995). Further, when the agency is presented with conflicting evidence, "the agency and not the reviewing court has the discretion to accept or reject from the several sources of evidence." Sabine, 951 F.2d at 678.

The administrative record in this matter, a voluminous document of around 700 pages, indicates that contrary to BLA's assertion, the Corps did consider the possible effects on flooding of this development in isolation, as well as cumulatively. The drainage calculations were reviewed by both the Corps and the City of Slidell before approving them. The City of Slidell found that the drainage calculations not only met, but exceeded the requirements of the Slidell city ordinance, which requires that post-development discharge not exceed 90% of pre-development discharge.²³ The Corps determined that mitigation in the form of detention ponds should be undertaken to ensure that post-project runoff would not affect flooding, a requirement with which the applicant has complied.²⁴ The Corps also reviewed hydraulic calculations prepared by Home Depot's engineers, which established that the detention ponds built to hold and release storm water slowly were adequately designed. At the suggestion of the Corps' permit writer,²⁵ the calculations by Home Depot's engineer were reviewed by an independent analyst, after which the Corps' determined that "the detention ponds should ensure that post project flows do not exceed pre-project flows" and that "the development would not substantially alter the 100-year flowline/flood plain."²⁶

As for cumulative impacts, the administrative record reveals that they were considered by the Corps.²⁷ Further, because any subsequent developer will be required to obtain a permit before undertaking new development, a review of the cumulative effects of future development is assured.

BLA places great emphasis on the fact that its expert, Dr. Joseph Suhayda, has produced a report suggesting that the hydraulic analysis used does not adequately consider the volume and duration of projected runoffs; Home Depot contends, to the contrary, that Dr. Suhayda did not take cognizance of portions of their report that directly addressed these issues.²⁸ However, the discretion to accept or reject conflicting evidence lies with the Corps, not with the Court, when the expert reports are equally persuasive. Sabine, 951 F.2d at 678, citing Marsh, 490 109 S. Ct. at 1861. On reviewing the administrative record, the Court finds that the reports of the applicant's engineers are no less persuasive than the reports of plaintiff's engineers, and thus the Corps' was justified in relying on the reports of the applicant's engineers, which were reviewed and approved by the City of Slidell.

While the Court sympathizes with BLA members, who are witnessing the urbanization of this once rural region,²⁹ presented with these facts and the detailed administrative record, which chronicles a broad review of relevant facts and issues, including present and cumulative impacts on flood conditions, the Court finds that the Corps'decision to issue the permit was not arbitrary and capricious. Therefore, not only has BLA failed to demonstrate a substantial likelihood of success on the merits, but it is clear to the Court that BLA cannot meet the required burden of proof at trial. Accordingly;

IT IS ORDERED that plaintiff, Bayou Liberty Association's Motion for Preliminary Injunction is hereby DENIED;

IT IS FURTHER ORDERED that plaintiff, Bayou Liberty Association's Complaint seeking Injunctive and Declaratory Relief is DISMISSED with prejudice.

1. In consolidating this matter, the Court relies on the fact that the parties have presented their best cases, and, since the entire Administrative Record is before it, no further significant evidence would be forthcoming at trial.

2. Permit No. EJ-19-980.

3. Plaintiff's Memo in Support at 2.

4. Administrative Record ("AR") at CE 00068-69, 00084, 00042, 00638-653, 00090, 00482, and 00542.

5. AR at CE 00064-67, 00078-83, 00669-670.

6. AR at CE 00092-93, 00096-117.

7. AR at CE 00678.

8. AR at CE 00656-675.

9. AR at CE 00308 et seq.

10. AR at CE 00370 et seq.

11. AR at CE 00313.

12. AR at CE 00314, 00442.

13. AR at CE 00319.

14. AR at CE 00358.

15. AR at CE 00383-386.

16. AR at CE 00131-177.

17. See supra note 4 and 5.

18. AR at CE 00548-550, 000671.

19. AR at CE 00667 and 00681.

20. AR at CE 00662.

21. AR at CE 00676.

22. The "reasonableness" standard — which required the Court to review whether the agency's finding was reasonable — applied in this circuit in Fritlofson v. Alexander, 772 F.2d 1225 [15 ELR 21070] (5th Cir. 1985) has been specifically disavowed. Sabine, 951 F.2d at 677.

23. AR at CE 00315. Indeed, it was determined that the post-development discharge would be only 58% of pre-development discharge in a 10-year storm event. AR at CE 00386.

24. AR at CE 00662.

25. AR at CE 00544.

26. AR at CE 00603.

27. AR at CE 00667 para. F.

28. Home Depot's Opposition at 18.

29. In fact, the problems attendant to the rapid urbanization of St. Tammany Parish were the focus of a recent serialized article in the Times-Picayune.