The U.S. Army Corps of Engineers issued a permit to allow an oil export terminal to expand. Two Native American tribes and a local environmental association sued to invalidate the permit. The Court of Appeals for the Fifth Circuit upheld the issuance of the permit.

Failure to Meet Burden
The opponents asserted that the Corps violated the National Environmental Policy Act (NEPA) and the Clean Water Act (CWA). Specifically, they argued the Corps did not adequately assess 1) the risk of oil spills, 2) the impacts to seagrass, 3) the impacts on the neighboring communities of noise and lights, 4) the actual benefits and costs of the project, 5) the impacts on climate change, 6) the cumulative impacts of past and reasonably foreseeable future activities, and 7) the need for a full environmental impact statement.

As to all arguments, the 5th Circuit determined the opponents did not meet their burden to establish that issuing the permit was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”

Compliance with NEPA and CWA
For example, the Corps is allowed to “evaluate only the effects proximately caused by the permitted action, even if it also discusses broader benefits of the project.” In doing so, assessment of the “project’s benefits and costs were consistent with both NEPA and CWA regulations.”

Regarding incremental impacts, because the Corps “concluded that mitigation efforts offset any incremental and cumulative impacts, acknowledged extrinsic past impacts on the surrounding environment, and explained how the project wouldn’t interfere with further efforts to restore the watershed, the analysis…was compliant with NEPA.”

Finally, regarding climate change, the opponents cited “non-binding, out-of-circuit cases” to argue “that NEPA required the Corps to do more.” Even if other circuits disagree, the 5th Circuit declined to require “that the Corps needed to consider downstream impacts—that is, the emissions from the end-use of petroleum products that may be exported from the expanded Terminal.”

To see the opinion https://www.ca5.uscourts.gov/opinions/pub/23/23-40555-CV0.pdf