Gulf Restoration Network v. United States Department of Transportation

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit June 8, 2006

Charles R. Fulbruge III
Clerk
No. 05-60321

GULF RESTORATION NETWORK; SIERRA CLUB; LOUISIANA CHARTER BOAT
ASSOCIATION,

Petitioners

VERSUS

UNITED STATES DEPARTMENT OF TRANSPORTATION,

Respondent

CONOCOPHILLIPS CO.; COMPASS PORT LLC; BEACON PORT LLC; GULF
LANDING LLC,

Intervenors

PETITION FOR REVIEW OF AN ORDER OF
THE UNITED STATES DEPARTMENT OF TRANSPORTATION

Before HIGGINBOTHAM, DAVIS and STEWART, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge.

Petitioners seek review of a decision by the Secretary of

the Department of Transportation granting a license for a

liquified natural gas (“LNG”) facility in the Gulf of Mexico

under the Deepwater Port Act, 33 U.S.C. § 1501 et seq.

Petitioners submit two issues for review. First, they contend

that the Environmental Impact Statement (“EIS”) prepared by the
Secretary as required by the National Environmental Policy Act

(“NEPA”), 42 U.S.C. § 4321 et seq., was deficient in that it did

not adequately consider the “environmental impacts of the

proposed action.” More particularly, Petitioners contend the

Secretary acted arbitrarily and capriciously in concluding that

the effects of three potential future projects in the Gulf of

Mexico were too speculative to consider in evaluating the

cumulative impact of the licensing decision under NEPA. Second,

Petitioners argue that the Secretary violated the Deepwater Port

Act by failing to require that the proposed facility use a closed

loop system, which they assert is the “best available technology

to prevent or minimize adverse impact on the marine environment.”

For the reasons that follow, we conclude that the Secretary did

not act arbitrarily or capriciously in concluding that the

effects of three potential future projects were speculative in

light of the uncertainty regarding whether they would be

constructed, and if constructed, whether they would use an “open

loop” or “closed loop” system to warm the LNG. We also conclude

that the Secretary did not violate the “best available

technology” requirement of the Deepwater Port Act. We therefore

deny the petition for review.

I. Background

On November 3, 2003, Gulf Landing LLC filed a complete

2
application with the Secretary of Transportation,1 pursuant to

the Deepwater Port Act, for a license to operate a deepwater

port2 off the coast of Louisiana, 38 miles south of Cameron,

described in more detail below. The facility will receive ultra-

cooled liquid natural gas, store it, regasify it by heating, and

transfer it to existing pipelines for delivery to the Gulf Coast.

It will be located in 55 feet of water and will consist of two

units fixed to the seabed, including two LNG storage tanks. The

LNG will be vaporized using “open rack” vaporizers. This system,

known as an “open loop” system, will heat the LNG by pumping warm

seawater to the top of each open rack vaporizer and allowing it

to flow down panels, in which LNG is flowing through tubes,

warming and regasifying the LNG. A “closed loop” system, by

contrast, burns natural gas to heat water which is used

repeatedly to heat the LNG.

1
The Secretary of Transportation has delegated the licensing
authority to the Maritime Administrator, 49 C.F.R. §
1.66(aa)(1)–(2), and various license processing tasks to the
United States Coast Guard, 33 C.F.R. § 148.3. Because the
Secretary remains ultimately responsible under the Deepwater Port
Act, the opinion will refer to actions by the Maritime
Administrator and the Coast Guard as actions by the Secretary.
2
The Deepwater Port Act defines deepwater ports as: “any
fixed or floating manmade structure other than a vessel, or any
group of such structures, that are located beyond the State
seaward boundaries and that are used or intended for use as a
port or terminal for transportation, storage, or further handling
of oil for transportation, to any State...and for other uses not
inconsistent with the purposes of this chapter, including
transportation of oil from the United States outer continental
shelf.” 33 U.S.C. §1502(9)(A).

3
 Because open loop systems require the uptake and release of

a large volume of seawater, they affect the marine environment,

primarily by entrapping fish, fish eggs, and larvae in the intake

screens, decreasing water temperature, and emitting anti-

biofouling agents necessary for production into the water. A

closed loop system, while more expensive to run, is friendlier to

the environment in most respects.3

The facility will be located in what the NOAA Fisheries

Service has considered the “‘fertile fisheries crescent,’ the

most biologically productive area in the Gulf of Mexico marine

ecosystem.” Accordingly, the facility will affect many types of

animals, including fish, turtles, mammals, and birds. Of primary

concern is the red drum, a popular sport-fish not commonly fished

commercially. According to the Final Environmental Impact

Statement (“FEIS”) for the project, the Gulf Landing facility

alone could destroy annually a number of red drum equal to 3.8%

of Louisiana’s annual red drum fish harvest.4

Under the Deepwater Port Act, the Secretary has

approximately one year after receiving a complete application to

issue a decision. 33 U.S.C. § 1504(c)(1),(g),(i)(1),(4). During

3
Apparently, however, open loop systems result in the
emission of less air pollution.
4
As intervenor Gulf Landing points out, this is not to say
that 3.8% of the fish will be killed. It also points out that
3.8% is the high end of the estimate, with 0.8% as the average
and 0.1% as the low end.

4
this time, he must take various steps, including conducting an

environmental review and issuing an Environmental Impact

Statement (“EIS”) under NEPA and holding a public hearing. Id.

As part of this process, the Secretary published notice of

availability of the draft EIS in the Federal Register on June 25,

2004, and issued the 297-page FEIS in November 2004. At the time

the FEIS was issued, five other applications had been submitted

for similar facilities in the Gulf of Mexico.5 In following

NEPA’s mandate that an EIS take into account cumulative effects

from “reasonably foreseeable future actions,” the Secretary took

into account only two of the five pending applications. The

Secretary considered the other three applications too

speculative, and two of the other three as too geographically

distant from the Gulf Landing project as well.6

On January 3, 2005, the NOAA Fisheries Service wrote to the

Secretary that a license decision without analysis of the

cumulative impacts from the other three facilities would not be

“adequately evaluated” and that the draft EIS and FEIS should

5
The other applicants included: Port Pelican LLC for a GBS
platform; El Paso Energy Bridge Gulf of Mexico LLC for a
submerged turret loading system; Freeport McMoRan Energy Main
Pass Energy Hub™ for reuse of an existing structure for storage
and regasification and for construction of caverns in an
underlying salt dome for storage of regasified natural gas;
Conoco Phillips Compass Port for a GBS platform; and Exxon Mobile
Pearl Crossing for a GBS platform.
6
Included in the FEIS were the Port Pelican Deepwater Port
and the Energy Bridge Deepwater Port.

5
have analyzed the cumulative impact from those facilities. It

also stated in a letter that the open loop system was not the

“more environmentally responsible action:” “[a]s we have

consistently stated in our previous comments on this project, we

are convinced that the use of a [closed loop system] would

greatly reduce ecological impacts and yield a stronger, more

environmentally responsible action.” Louisiana Governor Kathleen

Blanco, the Louisiana Department of Wildlife and Fisheries, the

Gulf States Marine Fisheries Commission, and the Gulf of Mexico

Fishery Management Council expressed the same two concerns in a

letter to the Secretary.7

Despite these concerns, the Secretary approved the Gulf

Landing license on February 16, 2005, subject to certain

conditions and environmental monitoring requirements. On April

15, the Petitioners filed a petition in this court, pursuant to

the Deepwater Port Act, arguing: (1) that the Secretary should

have analyzed the cumulative impact from the other three proposed

LNG facilities; and (2) that a closed loop system should have

been required for the license to issue.

II. Standard of Review

When reviewing the adequacy of an EIS, we are mindful that

7
The letter stated: “The level of uncertainty in determining
the effects of the open rack vaporizer is not acceptable. A
comprehensive evaluation incorporating existing data and
additional data must be developed. Part of this evaluation should
include an assessment of the cumulative impacts of the numerous
open rack vaporizers.”

6
NEPA guarantees a process, not a certain result.8 As such, this

court has set forth three considerations:

(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 involves; and (3) whether the EIS
explanation of alternatives is sufficient to permit a
reasoned choice among different courses of action.

Miss. River Basin Alliance v. Westphal, 230 F.3d 170, 174 (5th

Cir. 2000); see id. (Stating that this court “follow[s] a ‘rule

of reason’ and ‘a pragmatic standard which requires good faith

objectively but avoids ‘fly specking’”). “[T]his three-part test

is applied under the highly deferential standard of review” set

forth in § 706(A)(2) of the APA. Avoyelles v. Sportsmen’s League

v. Marsh, 715 F.2d 897, 905 (5th Cir. 1983).

Under that section, a reviewing court shall “hold unlawful

and set aside agency action, findings, and conclusions found to

be—(A) arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” 5 U.S.C. § 706; Citizens

for Mass Transit, Inc. v. Adams, 630 F.2d 309, 313 (5th Cir.

8
See, e.g., Cal. Save Our Streams Council, Inc. v. Yeutter,
887 F.2d 908, 910-13 (9th Cir. 1989)(finding that petitioner’s
independent NEPA claims were subject to the Federal Power Act
jurisdictional provision); City of Tacoma v. Nat’l Marine
Fisheries Serv., 383 F. Supp. 2d 89, 91-93 (D.D.C.
2005)(dismissing for lack of jurisdiction a challenge under the
Endangered Species Act as a collateral attack on a Federal Energy
Regulatory Commission license); Idaho Rivers United v. Foss, 373
F. Supp. 2d 1158, 1160-61 (D. Idaho 2005)(same).

7
1980). “This standard of review is highly deferential,”

Avoyelles, 715 F.2d at 904, and we should not substitute our own

judgment for the agency’s. Kleppe v. Sierra Club, 427 U.S. 390,

410 n.21 (1976). “We must look at the decision not as a chemist,

biologist, or statistician that we are qualified neither by

training nor experience to be, but as a reviewing court

exercising our narrowly defined duty of holding agencies to

certain minimal standards of rationality.” Avoyelles, 715 F.2d

at 905 (internal quotation marks and citation omitted).

III. Cumulative Impacts Analysis Under NEPA

We first address Petitioners’ contention that the Secretary

failed to adequately consider the cumulative impact of the Gulf

Landing deepwater port with three other ports for which

applications were filed. Under the Deepwater Port Act,

organizations wishing to construct the type of facility

contemplated here must apply to the Secretary of Transportation

for a license. 33 U.S.C. § 1503(a). As part of the approval

process, the Act requires the Secretary to prepare an EIS

pursuant to NEPA. 33 U.S.C. § 1504(f). In accord with NEPA, the

Secretary must include a detailed statement of “the environmental

impacts of the proposed actions.” 42 U.S.C. § 4332(2)(C)(i).

Impacts include “ecological...aesthetic, historic, cultural,

economic, social, or health, whether direct, indirect, or

cumulative.” 40 C.F.R. § 1508.8. Cumulative impact “is the

8
impact on the environment which results from the incremental

impact of the action when added to other past, present, and

reasonably foreseeable future actions” and “can result from

individually minor but collectively significant actions taking

place over a period of time.” 40 C.F.R. § 1508.7 (emphasis

added).

When analyzing cumulative impacts of a proposed action, we

have held that an agency should consider:

(1) the area in which the effects of the proposed

project will be felt;

(2) the impacts that are expected in that area from the

proposed project;

(3) other actions—past, proposed, and reasonably

foreseeable—that have had or are expected to have impacts in

the same area;

(4) the impacts or expected impacts from these other

actions; and;

(5) the overall impact that can be expected if the

individual impacts are allowed to accumulate.

Fritiofson v. Alexander, 772 F.2d 1225 (5th Cir. 1985)(citing

Cabinet Mountains Wilderness/Scotchman’s Peak Grizzly Bears v.

Peterson, 685 F.2d 678, 683–84 (D.C. Cir. 1982)), overruled on

other grounds, Sabine River Authority v. U.S. Dep’t of Interior,

951 F.3d 669 (5th Cir. 1992). Furthermore, this court has held

9
that “[a]n impact is ‘reasonably foreseeable’ if it is

‘sufficiently likely to occur that a person of ordinary prudence

would take it into account in reaching a decision.’” City of

Shoreacres v. Waterworth, 420 F.3d 440, 453 (5th Cir. 2005)

(citing Sierra Club v. Marsh, 976 F.2d 763, 767 (1st Cir. 1992)).

In issuing the FEIS for the Gulf Landing project, the

Secretary limited his analysis of “cumulative impacts” to the two

ports for which “an approved public Draft NEPA document [was]

available for review at the time of the Draft EIS for Gulf

Landing”. The Secretary therefore did not consider the impact of

the three facilities for which applications had been filed but

the consideration of the application had not progressed to the

draft EIS stage.9 He reasoned that “[i]t would not be reasonable

to speculate on the quantitative or qualitative configurations of

an application until an approved public draft evaluation was

available for review.” He also excluded two of those three ports

on the independent rationale that they were too geographically

distant from the Gulf Landing port, finding that “[t]he

Mississippi River discharge plume is approximately 210 miles east

of the [proposed Gulf Landing port] and, in this case, represents

a reasonable biological boundary for assessment of cumulative

impacts.”

9
The Gulf Landing FEIS was published on December 3, 2004.
The draft EISs for the other three projects were made available
on February 11, 2005, April 21, 2005, and June 17, 2005.

10
 The Petitioners argue that the Secretary’s decision to

exclude consideration of the three ports for which applications

had been filed was arbitrary and capricious. They contend that

the effects of the proposed projects are not speculative because

the details required in an application give the Secretary ample

information to evaluate the effects of the projects.10

Appellants also argue that the dire need for natural gas,

10
The Act requires that applications provide:

(D) the proposed location and capacity of the deepwater
port, including all components thereof;
(E) the type and design of all components of the
deepwater port and any storage facilities associated
with the deepwater port;
(F) with respect to construction in phases, a detailed
description of each phase, including anticipated dates
of completion for each of the specific components
thereof;
(G) the location and capacity of existing and proposed
storage facilities and pipelines which will store or
transport oil transported through the deepwater port,
to the extent known by the applicant or any person
required to be disclosed...
...
(K) a description of procedures to be used in
constructing, operating, and maintaining the deepwater
port, including system of oil spill prevention,
containment, and cleanup; and
(L) such other information as may be required by the
Secretary to determine the environmental impact of the
proposed deepwater port.

33 U.S.C. § 1504(c)(2).

11
the sums expended by the applicants,11 the expense entailed in

preparing such applications, and the financial stability of the

applicants make the projects “sufficiently likely to occur that a

person of ordinary prudence would take [them] into account in

reaching a decision.” City of Shoreacres, 420 F.3d at 453.

The Secretary argues that he was not arbitrary or capricious

in declining to consider the effects of the three projects for

which draft EISs were not available. The Secretary acknowledges

that absolute certainty that a project will come to fruition is

not required in order to include it in the cumulative impact

analysis. He argues, however, that a line must be drawn

somewhere, and he has drawn the line such that projects without a

final license are to be considered, but only after a draft EIS is

available. Specifically, the Secretary contends that the

Deepwater Port Act requires so many steps after the filing of an

application that until a draft EIS is available, there is

insufficient certainty about the project’s future construction

and environmental consequences to include it in the cumulative

impact calculus. He argues that accepting Petitioners’ argument

would require the Secretary to engage in four “layers of

speculation.”

First, the Secretary would have to presume that information

provided by the applicant is sufficient for consideration,

11
The Gulf Landing facility, for example, would cost around
$700 million.

12
without the independent analysis by the Secretary mandated by the

Act. He points out that this analysis is not superficial or

perfunctory; for example the Act requires expertise from a number

of different agencies.12 Second, the Secretary may decide to

deny the license or impose conditions on it that alter the

project’s environmental effects. He argues that one of the

conditions may even be a change from open loop to closed loop

technology, or vice-versa, a change with significant

environmental effects.13 Third, the Act imposes requirements

beyond the Secretary’s control that may require him to deny or

impose conditions on a license. For example, the license cannot

issue if the EPA informs the Secretary that the project does not

comply with environmental statutes or if the Governor of the

adjacent state timely indicates disapproval. 33 U.S.C. §

1503(c)(8). Fourth, even if a license issues, the facility may

never be built, because of the cost of the project, a volatile

market or because of unanticipated conditions the Secretary

12
He offers an example of the Gulf Landing license itself,
where after Gulf Landing submitted its application, the Secretary
and the Coast Guard determined that it submitted insufficient
environmental data and directed it to submit additional data. He
also notes that the EPA and NMFS provided important comments
before the Draft EIS issued.
13
Again, he offers as an example the Gulf Landing license
itself, which was granted subject to certain conditions, such as
technical monitoring requirements allegedly designed to mitigate
environmental impacts.

13
imposes on construction.14 The Secretary argues that while he

could have cast his net wider, it was not arbitrary or capricious

for him to cast it where he did because of the above

uncertainties.

Finally, intervenor, ConocoPhillips points to the continued

monitoring requirements, imposed by the Secretary requiring the

operator to mitigate undue environmental damage. Pointing to the

short, 356-day window given to the Secretary to act on an

application, it also argues that with these time constraints the

Secretary could not have taken into account the three speculative

ports, and that the Secretary cannot be expected to consider

applications filed up until the date it completes its EIS.

We agree that the Secretary did not act arbitrarily or

capriciously when he included only two of the five ports for

which applications were filed. We recognize the high demand for

natural gas and these LNG ports, thereby increasing the

possibility that the ports will be built. We also recognize that

the companies which have filed the applications certainly have

the resources to build the ports.

However, the Secretary was entitled to conclude that the

occurrence of any one of a number of contingencies could cause

the plans to build the ports to be cancelled or drastically

14
As the Secretary points out, one of the two already
licensed projects included in the Gulf Port FEIS is indefinitely
on hold.

14
altered.15 For example, one or more of the applicants may decide

for a number of reasons to withdraw its application before the

Secretary’s approval, such as ExxonMobil did with its application

for the Pearl Crossing GBS platform.16 The Secretary, after

receiving input from other agencies, may deny an application or

make changes to the application’s construction specifications

such as demanding that the port be closed loop rather than open

loop. The technology in this area is also advancing rapidly and

may change the effects of the planned ports. Finally, based on

public statements and correspondence from Louisiana Governor

Kathleen Blanco, the Secretary was aware that she might well

15
See Airport Impact Relief v. Wykle, 192 F.3d 197 (1st Cir.
1999)(concluding that an airport expansion was not reasonably
foreseeable because it was “contingent on several events that may
or may not occur over an eight-year span” including “the
acquisition of permits, the arrangement of funding, the drafting
of expansion plans, and other contingencies that must occur
before even the trilateral land exchange can occur. These
contingencies render any possibility of airport expansion
speculative and, . . . neither imminent nor inevitable.”). Cf.
Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208,
1215 (9th Cir.1998)(court concluded that a single EIS was
required because proposed timber sales were reasonably
foreseeable: “they were developed as part of a comprehensive
strategy” and they were “disclosed by name to a coalition of
logging companies, along with estimated sale quantities and
timelines” before the proposed project’s environmental assessment
was completed).

We also acknowledge the Petitioners’ argument that some of
these events could happen even after a draft EIS is complete.
However, we find the Secretary has wide discretion in determining
where to draw the line, that the line must be drawn somewhere,
and that he acted within his discretion when he included only
projects for which draft EISs were available.
16
See 70 Fed. Reg. 73059 (Nov. 17, 2005).

15
decide to veto any open loop port approved by the Secretary.17

Under the facts presented to us and under the deferential

standard which we review the agency’s determination, we find that

the Secretary did not abuse his discretion or act arbitrarily or

capriciously in concluding that the three ports were not

“reasonably foreseeable future actions,” or, as this court has

put it, actions that “a person of ordinary prudence would take []

into account in reaching a decision.” City of Shoreacres, 420

F.3d at 453.18

IV.

We next address Petitioners’ argument that the Secretary

violated the Deepwater Port Act by issuing a license for a facility

that does not require the “best available technology, so as to

prevent or minimize adverse impact on the marine environment,” as

required by the Act.

Under § 1503(c) of the Act, the Secretary “may” issue a

license if:

(2) he determines that the applicant can and will
comply with applicable laws, regulations, and license
conditions;

17
After oral argument, but before this opinion issued,
Governor Blanco did, in fact, exercise her power to veto the
Freeport McMoRan Port—one of the three ports excluded from the
cumulative impact analysis.
18
Because we conclude that the Secretary was not arbitrary or
capricious when he excluded potential projects without a
completed draft EIS from the Gulf Landing EIS, we need not answer
the question whether the Secretary’s alternative geographical
rationale for excluding two of the ports is valid.

16
 (3) he determines that the construction and operation
of the deepwater port will be in the national interest
and consistent with national security and other
national policy goals and objectives, including energy
sufficiency and environmental quality;
...

(5) he determines, in accordance with the environmental
review criteria established pursuant to section 1505 of
this title, that the applicant has demonstrated that
the deepwater port will be constructed and operated
using best available technology, so as to prevent or
minimize adverse impact on the marine environment...

33 U.S.C. § 1503(c)(emphasis added).

The implementing regulations also provide that the application

must use “the best available technology to prevent or minimize

adverse impact on the environment.” 33 C.F.R. § 148.710(a)(2).

The regulation further instructs the Secretary to evaluate “a

deepwater port proposal and reasonable alternatives...on the

basis of how well they: (a) Reflect the use of best available

technology in design, construction procedures, operations, and

decommissioning;...(g) avoid interference with biotic

populations, especially breeding habitats or migration routes.”

33 C.F.R. § 148.725.

The Petitioners argue that the Secretary violated the plain

language of subsection (5) by failing to require a closed loop

system, a system which would “prevent or minimize adverse impact

on the marine environment.” They point out that the Secretary

admitted in the FEIS that the open loop system will have a

“higher effect” on the “water quality and marine life” than a

17
closed loop system, a conclusion other agencies agree with.19

They argue that the FEIS reflects that the Secretary approved

open loop technology because of lower operating costs:

The Applicant selected [open loop] technology because
it is widely used and highly proven technology, is a
simple process (highly reliable), and has low fuel-
usage requirements and resultant reduced operating
costs. The Applicant has also made sound arguments on
the basis of safety and availability of means to ensure
protection of environment.

Thus, appellants argue that because the open loop system is

more harmful to the environment than the closed loop system, the
20
Secretary’s approval of a port with an open loop system was

“contrary to law” under § 706(2)(A) of the APA.

The Secretary argues that the Congressional directive to

require the applicant to demonstrate it will construct the port,

using the best technology “so as to prevent or minimize adverse

impact on the marine environment” is best read to require

construction that reasonably minimizes adverse impact to a

reasonable degree given all relevant circumstances. He also

contends that the Petitioners’ reading ignores the prior clause

in subsection (5)—“in accordance with the environmental review

19
The NMFS stated that it was “convinced that the use of a
[closed loop system] would greatly reduce ecological impacts and
yield a stronger, more environmentally responsible action.” The
Gulf States Marine Fisheries Commission and the Gulf of Mexico
Fishery Management Council stated that the open loop system “will
have unacceptable negative impacts on fishery stocks” and that
“[a closed loop system] should have been fully analyzed.”
20
See 70 Fed. Reg. 73059 (Nov. 17, 2005).

18
criteria established pursuant to 33 U.S.C. § 1505". The

Secretary points out that § 1505 requires the Secretary to

consider broad criteria other than marine environment;21 he

argues that the Petitioners would have him ignore these criteria

entirely whenever a technology marginally better for the marine

environment is worse for the rest of the environment.

The Petitioners’ reading of the subsection at issue in

isolation cannot be correct. First, under the Petitioners’

reading, the Secretary could not apply the overall environmental

criteria of § 1505, which is mandated by subsection (5) itself.

Second, under petitioner’s reading, the Secretary could not

properly follow NEPA, as mandated by subsection (5) and § 1505,

because he would have to ignore NEPA-mandated variables not

21
Section 1505 expressly provides that the Secretary “shall
establish. . . environmental review criteria consistent with the
National Environmental Policy Act” and that “[s]uch criteria
shall be used to evaluate a deepwater port as proposed in an
application, including—
(1) the effect on the marine environment;
(2) the effect on oceanographic currents and wave
patterns;
(3) the effect on alternate uses of the oceans and
navigable waters such as scientific study, fishing, and
exploitation of other living and nonliving resources;
(4) the potential dangers to a deepwater port from
waves, winds, weather, and geological conditions, and
the steps which can be taken to protect against or
minimize such dangers;
(5) effects of land-based developments related to
deepwater port development;
(6) the effect on human health and welfare; and
(7) such other considerations as the Secretary deems
necessary or appropriate.

33 U.S.C. § 1505(a)(1)–(7) (emphasis added).

19
related to the marine environment. See, e.g., 33 U.S.C.A.§

4331(b)(5) (requiring the federal government to “achieve a

balance between population and resource use which will permit

high standards of living and a wide sharing of life’s

amenities.”). Third, the Petitioners’ reading would prevent the

Secretary from considering the factors in subsection (3): whether

the license was in the “national interest” and good for “energy

sufficiency and [overall] environmental quality.” 33 U.S.C. §

1503(c)(3). The Secretary’s cost-analysis of the technology also

complies with Congress’ intent to “promote the construction and

operation of deepwater ports as a safe and effective means of

importing oil or natural gas into the United States.” 33 U.S.C.

§ 1501(a)(5). As the Secretary points out, this goal would be

compromised if the “best available technology” requirement

demanded the use of the technology that is best for the marine

environment, even if the costs were so prohibitive that no

applicant could ever construct a port using that technology.

For these reasons, we conclude that the Secretary’s issuance

of the Gulf Landing license was not contrary to law.

Petition for review DENIED.

20