A Petition for Review challenged issuance by the US Army Corps of Engineers of a permit under section 404 of the Clean Water Act in connection with construction of a liquefied natural gas (LNG) terminal. The Petitioners alleged that the Corps improperly incorporated an Environmental Impact Statement issued by the Federal Energy Regulatory Commission (FERC), which did not consider a key alternative, and that “the Corps did not adequately justify its deviation from the statutory hierarchy of compensatory mitigation schemes…”

Issue Not Raised During Comment Period
The Petitioners argued that in failing to consider the alternative, the Corps could not demonstrate it chose the “least environmentally damaging practicable alternative.” The 5th Circuit determined the Petitioners failed to raise this argument during the public comment period. The Court rejected the argument that an untimely comment was sufficient; the Court also rejected the argument that the Corps’ “independent knowledge” of the alternative should allow Petitioners to raise the issue. The Petitioners “did not timely alert the Corps” to the alternative; “as a result, they are unable to challenge the permit issuance on that ground.”

Deviation from Hierarchy Adequately Explained
The 5th Circuit determined the statute allowed the Corps to “override” the preferences in the statutory hierarchy when “a permittee-responsible project will restore an outstanding resource based on rigorous scientific and technical analysis.” The reviewing court does not determine if the “analysis” is sufficient; its role is to ensure the administrative record shows the agency adequately explained its reasoning. In this case, the 5th Circuit concluded: “The record reveals thorough analysis and cooperation by the Corps and other agencies, and a lucid explanation of why the Corps was permitting a departure from the default hierarchy.”

To see the opinion https://www.ca5.uscourts.gov/opinions/pub/22/22-60397-CV0.pdf