Case: 10-20502 Document: 00511559274 Page: 1 Date Filed: 08/02/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 2, 2011
No. 10-20502 Lyle W. Cayce
Clerk
SIERRA CLUB; HOUSTON AUDUBON SOCIETY,
Plaintiffs – Appellants
v.
FEDERAL HIGHWAY ADMINISTRATION; DEPARTMENT OF
TRANSPORTATION; SECRETARY OF TRANSPORTATION; TEXAS
TRANSPORTATION COMMISSION; DEIDRE DELISI, in her official
capacity as Chair of the Texas Transportation Commission; JANICE W.
BROWN, in her official capacity as Division Administrator of the Federal
Highway Administration, Texas Division; JEFFREY F. PANIATI, in his
official capacity as Administrator of the Federal Highway Administration;
RAYMOND LAHOOD, in his official capacity as Secretary of Transportation
of the U.S. Department of Transportation,
Defendants – Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:09-CV-692
Before KING, DAVIS, and GARZA, Circuit Judges.
PER CURIAM:*
Sierra Club and Houston Audubon Society brought this suit under the
National Environmental Policy Act, 42 U.S.C. § 4321 et seq., alleging that the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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Federal Highway Administration and others failed to follow certain
requirements when preparing the Final Environmental Impact Statement for
Segment E of the Grand Parkway, a highway planned in northwest Houston.
The district court concluded that the defendants had complied with the Act’s
requirements and entered summary judgment in their favor. We affirm.
BACKGROUND
The Grand Parkway—Texas State Highway 99—was first proposed in
1961 and is a 180-mile highway encircling the greater Houston area. Planners
split the highway into eleven lettered segments, Segment A through Segment I-
2. This case involves Segment E in northwest Houston. As proposed, Segment
E is approximately 15 miles long and will connect I-10 near Katy, Texas with US
290 northwest of Houston. Segment E is designed as a four-lane controlled
access toll road with intermittent frontage roads, all to be located within a 400-
foot right-of-way.
The Texas Department of Transportation (“TxDOT”) and the Federal
Highway Administration (“FHWA”) first filed a Notice of Intent to build Segment
E in 1993 and began preparing an Environmental Impact Statement (“EIS”).
Following public meetings in 1993 and 2000, FHWA and TxDOT published a
draft EIS in February 2003. After a public hearing on the draft EIS, FHWA and
TxDOT issued a Final Environmental Impact Statement (the “FEIS”) in
November 2007, and FHWA issue a Record of Decision (“ROD”) approving the
construction of Segment E on June 24, 2008.
Sierra Club filed the instant suit on March 9, 2009, against TxDOT,
FHWA, the United States Department of Transportation, and various
individuals in their official capacities (collectively, the “Agencies”). In its
complaint, Sierra Club contended that the Agencies violated the National
Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., in preparing the
FEIS. Specifically, Sierra Club alleged that the FEIS inadequately analyzed the
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following: (1) the alternatives to construction of Segment E; (2) the impacts on
floodplains; (3) the impacts on wetlands; (4) the impacts on air quality; (5) the
noise impacts; and (6) the indirect and cumulative impacts.
In June 2009, the Agencies prepared a re-evaluation of the FEIS (the “Re-
evaluation”) to address a design revision for Segment E. The Re-evaluation also
considered whether a supplemental EIS was necessary based on the design
revision and other new information, including changes to the floodplain map for
the area. The Re-evaluation concluded that a supplemental EIS was
unnecessary. The FHWA then issued a Revised Record of Decision (“Revised
ROD”) in which it re-affirmed its selected alternative route for Segment E.
In October 2009, Sierra Club sought to amend its complaint to add the
Houston Audubon Society as an additional plaintiff and Harris County as an
additional defendant. Sierra Club also sought to add five additional claims
related to the Re-evaluation and the Revised ROD. The district court granted
Sierra Club’s motion to add Houston Audubon Society as a plaintiff, but denied
the motion to amend in all other respects. The parties then cross-moved for
summary judgment. In a thorough opinion, the district court concluded that the
Agencies had not acted arbitrarily or capriciously in issuing the FEIS and ROD,
and the court granted summary judgment to the Agencies on all claims. Sierra
Club v. Fed. Highway Admin., 715 F. Supp. 2d 721 (S.D. Tex. 2010). Sierra Club
and Houston Audubon Society (collectively, “Appellants”) appeal the district
court’s decision with regard to their first three claims against the Agencies and
argue that the district court erred in denying leave to amend the complaint.
DISCUSSION
I. NEPA CLAIMS
A. Standard of Review
We review the district court’s grant of summary judgment de novo, using
the same standard as the district court. La. Crawfish Producers Ass’n v. Rowan,
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463 F.3d 352, 356 (5th Cir. 2006). Summary judgment is warranted if the
movant shows that “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
“NEPA-related decisions are accorded a considerable degree of deference,”
and “courts are to uphold the agency’s decisions unless the decision is ‘arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.’ ”
Spiller v. White, 352 F.3d 235, 240 (5th Cir. 2003) (quoting 5 U.S.C. § 706(2)(A)).
“Under this highly deferential standard of review, a reviewing court has the
least latitude in finding grounds for reversal.” Sabine River Auth. v. U.S. Dep’t
of Interior, 951 F.2d 669, 678 (5th Cir. 1992) (citation and internal quotation
marks omitted). We may not “substitute [our] judgment for that of the agency
as to the environmental consequences of its actions.” Kleppe v. Sierra Club, 427
U.S. 390, 410 n.21 (1976). Instead, we must assess whether the agency’s
decision is “within the bounds of reasoned decisionmaking,” and determine
whether the agency has “considered the relevant factors and articulated a
rational connection between the facts found and the choice made.” Balt. Gas &
Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 105 (1983). The plaintiff
bears the ultimate burden to prove that an agency’s decision was arbitrary or
capricious. See Medina Cnty. Envtl. Action Ass’n v. Surface Transp. Bd., 602
F.3d 687, 699 (5th Cir. 2010).
B. NEPA Framework
“NEPA imposes procedural requirements on federal agencies, requiring
agencies to analyze the environmental impact of their proposals and actions.”
Coliseum Square Ass’n, Inc. v. Jackson, 465 F.3d 215, 224 (5th Cir. 2006); see
also Miss. River Basin Alliance v. Westphal, 230 F.3d 170, 175 (5th Cir. 2000)
(“NEPA was created to ensure that agencies will base decisions on detailed
information regarding significant environmental impacts and that information
will be available to a wide variety of concerned public and private actors.”).
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NEPA is a strictly procedural statute and does not mandate that the agency
reach any particular conclusion. Robertson v. Methow Valley Citizens Council,
490 U.S. 332, 350 (1989) (“NEPA itself does not mandate particular results, but
simply prescribes the necessary process.”). NEPA ensures that agencies will
engage in an environmentally-conscious process, not that they will reach the
most environmentally-friendly result. Id. (“If the adverse environmental effects
of the proposed action are adequately identified and evaluated, the agency is not
constrained by NEPA from deciding that other values outweigh the
environmental costs.”); Sabine River Auth., 951 F.2d at 676 (“NEPA does not
prohibit the undertaking of federal projects patently destructive of the
environment; it simply mandates that the agency gather, study, and disseminate
information concerning the projects’ environmental consequences.”).
NEPA directs federal agencies to prepare an EIS when they engage in
“major Federal actions significantly affecting the quality of the human
environment.” 42 U.S.C. § 4332(C). The EIS must include:
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided
should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man’s
environment and the maintenance and enhancement of
long-term productivity, and
(v) any irreversible and irretrievable commitments of resources
which would be involved in the proposed action should it be
implemented.
Id. “[O]nce an agency has made a decision subject to NEPA’s procedural
requirements, the only role for a court is to insure that the agency has
considered the environmental consequences . . . .” Strycker’s Bay Neighborhood
Council, Inc. v. Karlen, 444 U.S. 223, 227 (1980). We have set forth three
criteria for reviewing the adequacy of an environmental impact statement:
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(1) whether the agency in good faith objectively has taken a hard
look at the environmental consequences of a proposed action and
alternatives;
(2) whether the EIS provides detail sufficient to allow those who did
not participate in its preparation to understand and consider the
pertinent environmental influences involved; and
(3) whether the EIS explanation of alternatives is sufficient to
permit a reasoned choice among different courses of action.
Westphal, 230 F.3d at 174. In addition, “the conclusions upon which an [EIS] is
based must be supported by the evidence in the administrative record.” Id. at
174–75.
C. Failure to Adequately Consider Alternatives
Appellants first argue that the Agencies failed to sufficiently consider
alternatives to Segment E. To satisfy NEPA’s requirement to provide an
analysis of alternatives to the project, agencies must “[r]igorously explore and
objectively evaluate all reasonable alternatives, and for alternatives which were
eliminated from detailed study, briefly discuss the reasons for their having been
eliminated.” 40 C.F.R. § 1502.14(a). “The rejection of even viable and
reasonable alternatives, after an appropriate evaluation, is not arbitrary and
capricious.” City of Dallas v. Hall, 562 F.3d 712, 718 (5th Cir. 2009).
The FEIS considered two major alternatives, a No-Build and a Build
alternative. Under the No-Build alternative, the FEIS considered no-build
options such as high-occupancy vehicle lanes, bus transit, and rail transit.
Under the Build alternative, the FEIS first considered several potential
corridors for Segment E. Once the preferred corridor was identified, the FEIS
considered the environmental impact of several alternate alignments within the
preferred corridor. The FEIS ultimately concluded that a hybrid of two of the
proposed alignments would satisfy the project objectives while minimizing the
environmental impact of Segment E.
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Appellants argue that the FEIS’s analysis of alternatives fails to comply
with NEPA for two reasons: (1) the FEIS’s stated purpose and need for the
project is so narrow that it foreclosed consideration of alternatives other than the
construction of Segment E; (2) the analysis was so deficient in some areas that
the deficiency prevented a thorough consideration of alternatives.
1. Purpose and Need Statement
Appellants contend that the Agencies drafted the purposes and needs for
the project too narrowly, which foreclosed the Agencies from fully considering
the No-Build alternative. Under NEPA, “agencies must look hard at the factors
relevant to the definition of purpose.” Citizens Against Burlington, Inc. v. Busey,
938 F.2d 190, 196 (D.C. Cir. 1991). “[A]n agency may not define the objectives
of its action in terms so unreasonably narrow that only one alternative from
among the environmentally benign ones in the agency’s power would accomplish
the goals of the agency’s action, and the EIS would become a foreordained
formality.” Id. (citation omitted). “Nor may an agency frame its goals in terms
so unreasonably broad that an infinite number of alternatives would accomplish
those goals and the project would collapse under the weight of the possibilities.”
Id. An agency may prefer one alternative from the outset, but must “proceed[]
to perform its environmental tasks with . . . good faith objectivity.” Envtl. Def.
Fund, Inc. v. Corps of Eng’rs of the U.S. Army, 492 F.2d 1123, 1129 (5th Cir.
1974) (citation and internal quotation marks omitted).
The FEIS identifies four objectives in its purpose and need statement: (1)
system linkage; (2) expanded capacity; (3) increased safety; and (4) economic
development. Appellants claim that these objectives are too narrow because the
No-Build alternative could not possibly satisfy them, and therefore the Agencies
did not fully consider the No-Build alternative. We disagree. The FEIS fully
considered several options under the No-Build alternative, and it assessed
whether each of those options would satisfy the purposes of the project.
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Appellants rely on Simmons v. U.S. Army Corps of Engineers, 120 F.3d
664 (7th Cir. 1997), to demonstrate that the purpose and need statement in the
FEIS was too narrow. In Simmons, the Seventh Circuit held that the U.S. Army
Corps of Engineers had crafted a needs statement too narrowly when drafting
the EIS for a reservoir project that would serve two water systems because the
statement precluded consideration of any alternative that would use more than
one source to supply water to both systems. Id. at 670 (“By focusing on the
single-source idea, the Corps never looked at an entire category of reasonable
alternatives . . . .”). In contrast to the stated purpose in Simmons, the purpose
and need statement in the FEIS at issue here did not foreclose consideration of
any reasonable alternatives. In fact, the Agencies thoroughly considered the
possibility of not building Segment E. They also fully considered various
alternative locations for the new highway, ultimately choosing one of the options
with the least environmental impact. The purpose and need statement was
therefore not so narrow that it foreclosed consideration of reasonable
alternatives.
2. Adequacy of Alternatives Analysis
Appellants argue that the FEIS was deficient in its analysis of traffic
congestion, traffic safety, and induced growth, which hampered full
consideration of the No-Build alternative. With respect to traffic congestion and
safety, Appellants’ contentions lack merit. Appellants do not challenge the
accuracy of the data in the FEIS. See Native Ecosystems Council v. U.S. Forest
Service, 418 F.3d 953, 964 (9th Cir. 2005) (“To take the required ‘hard look’ at a
proposed project’s effects, an agency may not rely on incorrect assumptions or
data in an EIS.”). Instead, they challenge the Agencies’ decision to approve the
construction of Segment E, arguing that the data in the FEIS does not support
such a decision. Appellants assert that the data in the FEIS suggest that
Segment E will not improve traffic congestion or safety, particularly given that
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an initiative called “Smart Streets” will improve both congestion and safety for
the other roads in the area.
As the district court recognized, the FEIS does indeed indicate “only a
modest improvement” in traffic congestion and safety, which “calls into question
the wisdom of building an expensive and environmentally disruptive road . . . .”
Sierra Club, 715 F. Supp. 2d at 734. However, “NEPA merely prohibits
uninformed—rather than unwise—agency action.” Robertson, 490 U.S. at 351.
Although some of the statements in the FEIS may be viewed as overstated or
hyperbolic because they suggest that traffic congestion will become unbearable
in the coming years, these exaggerated statements do not amount to a violation
of NEPA. The FEIS provides sufficient and accurate data regarding traffic
congestion and safety, and it thoroughly explains how the Agencies reached their
conclusions from the data provided. This satisfies NEPA’s requirements.
Appellants next argue that the FEIS’s analysis of “induced growth” is
deficient. An EIS must include an assessment of indirect or secondary effects
that “are caused by the action and are later in time or farther removed in
distance, but are still reasonably foreseeable.” 40 C.F.R. § 1508.8. Development
induced by the construction of a new highway is a secondary effect that must be
considered in the EIS for the proposed highway.
Appellants challenge the methodology the Agencies used to determine the
amount and nature of growth that would be induced by Segment E. To assess
the development that would be induced by Segment E, the Agencies convened
a panel of twenty-eight “knowledgeable members of the Houston community
with first hand experience in planning or development in the government,
education, and private sectors.” (AR009213). A guidance document in the
administrative record states that such panels are one of several acceptable
methods for calculating induced growth, (AR008342–3), and Appellants
articulate no other reasons why the methodology in the FEIS is flawed.
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Appellants also challenge the data produced by the panelists, arguing that
it does not include the 11,500-acre Bridgeland development planned for the
Segment E project area. The draft EIS states that “[b]oth existing and proposed
development were removed from the panel’s realm of consideration . . . .”
(AR009215), but the FEIS states that the panel determined that “planned
developments would continue as planned.” (AR018032). The FEIS also states
that the panel contacted various developers in the project area “to determine
location, percent build-out (as of September 2006), proposed build-out date, and
approximate total number of structures proposed in each subdivision currently
under construction or proposed within the study area.” (AR018073). One
statement in the draft EIS is in conflict with statements in the FEIS that speak
to a later date. The later statements clearly indicate to us that the panel did
consider the proposed Bridgeland development in the FEIS. Apart from this
feeble attempt, Appellants fail to articulate how the calculations regarding
induced growth in the FEIS are deficient or inaccurate. We are therefore
satisfied that the Agencies took full account of the induced development when
analyzing the environmental impacts of Segment E and complied with NEPA’s
requirement to examine the indirect consequences of the proposed action.
The purpose and need statement in the FEIS, as well as the data and
analysis regarding traffic congestion, traffic safety, and induced development,
was sufficient to permit the Agencies to consider reasonable alternatives to
Segment E and to make a reasoned choice among the considered alternatives.
D. Reliance on Inaccurate Floodplain Data
Appellants contend that the Agencies failed to comply with NEPA because
the FEIS relies on inaccurate and outdated floodplain data for the area in which
the alternative routes for Segment E were considered. In calculating the area
of floodplain that would be impacted by Segment E, the FEIS used a Digital
Flood Insurance Rate Map (“DFIRM”) developed by the Federal Emergency
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Management Agency (“FEMA”) for the National Flood Insurance Program
(“NFIP”). The DFIRM used in the FEIS floodplain analysis was approved in
January 2007 for use beginning in June 2007. The DFIRM was the product of
a study that revealed the prior flood elevations were too low. Shortly after the
DFIRM was released, in February 2007, the Sierra Club sued FEMA, alleging
that the DFIRM underestimated the flood elevation by approximately four feet.
On August 19, 2008, the Harris County Commissioner’s Court adopted a new
map prepared by the Harris County Flood Control District and submitted it to
FEMA for approval. The Agencies considered Harris County’s new floodplain
map in the Re-evaluation, and concluded that a supplemental EIS was
unnecessary because the additional floodplain encroachment under the new map
was small, and because “[t]he 100-yr floodplain acreage was not the primary
reason for the selection of a preferred corridor.” (AR023736). Appellants argue
that the FEIS should have disclosed that the DFIRM it used to analyze the
floodplain acreage was contested and could potentially be revised.
The district court held that the analysis of the floodplain issues for
Segment E satisfied NEPA’s requirements. The court reasoned that the
Agencies reasonably relied on the floodplain maps issued in 2007, and that the
Agencies had adequately responded to the 2008 revisions in the Re-evaluation.
The court also noted that the additional floodplain acreage encroached on by the
project under Harris County’s new map “is not a substantial increase from what
was reported in the FEIS.” Sierra Club, 715 F. Supp. 2d at 736. We agree.
The FEIS’s floodplain analysis satisfies the requirements of NEPA. The
FEIS clearly explained that it relied on the DFIRM that was effective as of June
18, 2007. Furthermore, as the FEIS noted, FHWA regulations require the
FHWA to use an NFIP map (which the DFIRM was) to determine whether a
highway project will encroach on a floodplain. See 23 C.F.R. § 650.111(a).
Perhaps the FEIS could have disclosed that the DFIRM was the subject of an
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ongoing legal challenge and possibly subject to revision, but we do not find the
Agencies’ reliance on the official DFIRM to be arbitrary and capricious.
Appellants rely on two Ninth Circuit cases for their argument that the
Agencies impermissibly relied on outdated and inaccurate floodplain data, and
that the Agencies had a duty to disclose the inaccuracies in the FEIS. See Native
Ecosystems Council v. U.S. Forest Service, 418 F.3d 953 (9th Cir. 2005); Seattle
Audubon Society v. Espy, 998 F.2d 699 (9th Cir. 1993). Both cases are
distinguishable from this case. In Native Ecosystems Council, the EIS failed to
disclose how the Forest Service had calculated the range for an elk herd, and the
court criticized the Forest Service’s “contradictory calculations” and the “opaque
nature of the record.” 418 F.3d at 964. The Ninth Circuit held that the Forest
Service had violated NEPA’s requirements by using an inaccurate calculation
and failing to disclose the shortcomings of the calculation. Id. at 964–5. In
Seattle Audubon Society, the Ninth Circuit held that the Forest Service violated
NEPA’s requirements by failing to supplement the EIS for its spotted owl
management plan when a study released shortly thereafter revealed that the
EIS may have relied on inaccurate data. 998 F.2d at 704. The Ninth Circuit
reasoned that the Forest Service was required to acknowledge the opposing
views and explain why further study was unnecessary or infeasible. Id. (citing
40 C.F.R. § 1502.9(b)).
In contrast to the EIS at issue in Native Ecosystems Council, the FEIS in
this case clearly disclosed which floodplain map it had relied on for its analysis.
The calculations were clear and straightforward and provided sufficient detail
to allow those who did not participate in the preparation of the FEIS to
understand how the FEIS arrived at the calculated number of floodplain acres
encroached on by Segment E. And in contrast to Seattle Audubon Society, the
Agencies disclosed the inaccuracies in the floodplain map in the Re-evaluation.
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In any event, the Agencies updated the floodplain analysis in the Re-
evaluation submitted in June 2009. As the district court noted, the updated
analysis in the Re-evaluation shows that the updated maps resulted in an
increase of 0.4 acres of floodway and 7.8 acres of floodplain that would be
encroached upon by Segment E under the preferred alignment. The Agencies
stated in the Re-evaluation that this slight increase in floodplain encroachment
“would not change the reasons for the selection of a preferred corridor.”
(AR023737). Ultimately, the Agencies concluded that “there have been no
significant changes to the assessed areas” and that a new EIS was unnecessary.
(AR023751). Appellants cite a report they submitted to the district court stating
that the new map “shows significant increases in flood levels and the floodplain
study area for this project.” Considering the detailed calculations in the Re-
evaluation, this broad statement is insufficient for us to conclude that the
Agencies’ decision not to prepare a supplemental EIS was arbitrary and
capricious. We are therefore satisfied that the Agencies took the requisite “hard
look” at the floodplain issues in the EIS, and in the Re-evaluation after the
floodplain map was revised.
Appellants also contend that the FEIS failed to consider an alternative of
bridging of all floodplains. This is incorrect. The FEIS indicates that “[t]he
preferred alternative alignment would bridge all of the regulatory floodways it
crosses, and final design will include further consideration of bridging 100-year
floodplains.” (AR018521). The FEIS also states that “bridging of some
floodplains . . . will likely be incorporated to the Preferred Alternative Alignment
during final design, thus further reducing the impact to the region’s floodplains.”
(AR018522). Bridging the floodplains, in addition to the floodways, is a
mitigatory action. NEPA requires that agencies evaluate mitigation options, but
it does not require that a full mitigation plan be formulated in the FEIS.
Westphal, 230 F.3d at 177. The FEIS therefore satisfied NEPA’s requirement
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to consider options to mitigate Segment E’s encroachment on the floodways and
floodplains.
E. Inadequate Wetlands Analysis
Appellants argue that the analysis of the wetlands impacted by Segment
E in the FEIS is inadequate for several reasons. First, they argue that the FEIS
does not sufficiently address the mitigation steps for wetlands impacted by
Segment E. We agree with the district court’s holding that the mitigation
analysis in the FEIS was sufficient. “NEPA does not require a fully developed
plan that will mitigate all environmental harm before an agency can act; NEPA
requires only that mitigation be discussed in sufficient detail to ensure that
environmental consequences have been fully evaluated.” Laguna Greenbelt, Inc.
v. U.S. Dep’t of Transp., 42 F.3d 517, 528 (9th Cir. 1994); see also Robertson, 490
U.S. at 353 (“[I]t would be inconsistent with NEPA’s reliance on procedural
mechanisms—as opposed to substantive, result-based standards—to demand the
presence of a fully developed plan that will mitigate environmental harm before
an agency can act.”). Although “[a] mere listing of mitigation measures is
insufficient to qualify as the reasoned discussion required by NEPA,” Neighbors
of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372, 1380 (9th Cir. 1998)
(citation and internal quotation marks omitted), the FEIS at issue here does
more than simply list the possible mitigation measures. The FEIS details the
measures, both on-site and off-site, that would be considered in the final
mitigation plan and identified the agencies that “will be involved in decisions
regarding appropriate mitigation ratios and the location, size, and character of
the mitigation.” (AR018500). The FEIS also indicates that a full mitigation plan
will be formulated before construction, and that such a plan is a condition of the
final permit for the project.1 (AR018500).
1
Appellants also argue, somewhat contradictorily, that “the FEIS throws in almost
every type of mitigation measure available.” That Appellants would suggest that the FEIS
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Second, Appellants argue that the Agencies’ failure to address the
inadequacies of the floodplain maps resulted in inaccurate data for the wetlands
analysis in the FEIS. This contention lacks merit. The FEIS plainly states that
the acreage of wetlands affected by Segment E was calculated by using “field
investigations and aerial photo interpretation.” (AR018390). The FEIS contains
no indication that the wetlands analysis was tied to the floodplain maps.
Indeed, the Re-evaluation concludes that the updated floodplain maps did not
affect the wetlands analysis and that “the ROD analysis remains valid.”
(AR023735). Appellants point to no other information to suggest that the FEIS
contains inaccurate data for the wetlands analysis.
Third, Appellants argue that the FEIS fails to consider the indirect impact
on the wetlands from development induced by Segment E. On the contrary, the
FEIS considers the acreage of wetlands that could be impacted through
development following construction of Segment E and concludes that Segment
E “could indirectly impact 823 acres of wetlands above that expected for the No-
Build Alternative.” (AR018068). Moreover, the FEIS states that any
“[d]evelopment and subsequent impacts of any aquatic resource at any location
would require coordination with the [U.S. Army Corps of Engineers] and other
permitting agencies.” (AR018504). Thus, the FEIS clearly considers the indirect
impact on the wetlands.
Finally, Appellants contend that the FEIS fails to consider bridging all of
the wetlands as an alternative. The FEIS states that the preliminary design for
Segment E “includes bridging stream crossings with portions of the wetlands
and riparian forest” and that “[f]urther minimization of impact through bridging
would be considered during final design.” (AR018500). As the district court
noted, “the FEIS is concerned primarily with whether and where to build
contains too many mitigation options further convinces us that the Agencies fully considered
the ways in which they could mitigate the environmentally destructive effects of Segment E.
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Segment E, and leaves most design considerations for later approval in
conjunction with other agencies.” Sierra Club, 715 F. Supp. 2d at 739. The
Agencies satisfied NEPA’s requirements by considering the bridging of all
wetlands as a mitigation strategy, and it was appropriate for the Agencies to
leave the final bridge design out of the FEIS.
Having reviewed the FEIS and the administrative record, and having
considered Appellants’ various challenges to the FEIS, we hold that the Agencies
complied with NEPA’s requirements.2
II. LEAVE TO AMEND
Appellants argue that the district court erred when it denied the Sierra
Club leave to amend its complaint. Sierra Club’s original complaint contained
six claims, all related to the alleged inadequacy of the FEIS. On October 15,
2009, Sierra Club sought to amend its complaint to add the Houston Audubon
Society as an additional plaintiff and Harris County as an additional defendant.
Sierra Club also sought to add five additional claims related to the Re-evaluation
and Revised ROD. The Agencies opposed the addition of Harris County as a
defendant on the basis that Harris County had not participated in the
preparation of the FEIS or Re-evaluation. The Agencies also asserted that three
of Sierra Club’s additional claims were repetitive of claims brought in the
original complaint, and that the two new claims could have been brought in the
original complaint. The district court granted Sierra Club’s motion to add
Houston Audubon Society as a plaintiff and denied Sierra Club’s motion to
amend in all other respects, but the court did not provide reasons for its decision.
2
Appellants also refer to Executive Order No. 11,988, 42 Fed. Reg. 26,951 (May 24,
1977), and Executive Order No. 11,990, 42 Fed. Reg. 26961 (May 24, 1977), which require
federal agencies to find that siting a project in a floodplain or in wetlands is “the only
practicable alternative.” We do not construe Appellants’ bare references to the Executive
Orders as a claim that the Agencies incorrectly determined that the only practicable
alternative for Segment E was encroaching on some portion of floodplains and wetlands.
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No. 10-20502
We review the district court’s decision to deny leave to amend for an abuse
of discretion. Gentilello v. Rege, 627 F.3d 540, 546 (5th Cir. 2010). “A decision
to grant leave is within the discretion of the court, although if the court ‘lacks a
substantial reason to deny leave, its discretion is not broad enough to permit
denial.’ ” State of La. v. Litton Mortg. Co., 50 F.3d 1298, 1302–03 (5th Cir. 1995).
Rule 15(a) of the Federal Rules of Civil Procedure provides a “strong
presumption in favor of granting leave to amend,” and “a district court may be
reversed for failing to provide an adequate explanation for denying it.” Fin.
Acquisition Partners, LP v. Blackwell, 440 F.3d 278, 291 (5th Cir. 2006). “When
the reason for the denial is readily apparent, however, a district court’s failure
to explain adequately the basis for its denial is unfortunate but not fatal to
affirmance if the record reflects ample and obvious grounds for denying leave to
amend.” Mayeaux v. La. Health Serv. and Indem. Co., 376 F.3d 420, 426 (5th Cir.
2004) (citations and internal quotation marks omitted).
We are unable to conclude that the grounds for denying the Sierra Club’s
motion for leave to amend are ample or obvious. “Denial of leave to amend may
be warranted for undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies, undue prejudice to the opposing
party, or futility of a proposed amendment.” United States ex rel. Steury v.
Cardinal Health, Inc., 625 F.3d 262, 270 (5th Cir. 2010). None of these reasons
for denial is apparent from the record.
Although the district court may have erred in denying Appellants leave to
amend, or at least erred in failing to provide its reason for doing so, any error
was harmless. See Fed. R. Civ. P. 61 (“At every stage of the proceeding, the
court must disregard all errors and defects that do not affect any party’s
substantial rights.”). Appellants assert that their rights were affected because
the district court’s denial of leave to amend prevented them from addressing
inadequacies in the Re-evaluation. On the contrary, the district court never
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No. 10-20502
prohibited the parties from addressing the Re-evaluation. Furthermore, most
of the additional claims in the proposed amended complaint were duplicative of
the claims asserted in the original complaint. The relief sought by Appellants
in the original complaint included the preparation of a supplemental EIS, and
the Agencies concluded in the Re-evaluation that a supplemental EIS was
unnecessary; therefore, the Re-evaluation was relevant to and appropriately
addressed as part of Appellants’ claims based on the FEIS. Two of the claims
based on the Re-evaluation did not mirror claims in the original complaint, but
one claim could have been brought in the original complaint and the other was
fully addressed by the parties in their summary judgment briefing as part of one
of the original claims. Appellants are therefore unable to demonstrate that their
substantial rights were affected by the district court’s denial of leave to amend
their complaint.
CONCLUSION
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
18