Mississippi River Basin Alliance v. Westphal

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 99-31235
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MISSISSIPPI RIVER BASIN ALLIANCE; NATIONAL WILDLIFE FEDERATION;
AMERICAN RIVERS; ARKANSAS WILDLIFE FEDERATION; MISSISSIPPI WILDLIFE
FEDERATION; SIERRA CLUB, THROUGH ITS DELTA AND MISSISSIPPI CHAPTERS;
and LOUISIANA WILDLIFE FEDERATION,
Plaintiffs-Appellants,

v.

JOSEPH W. WESTPHAL, ASSISTANT SECRETARY OF THE ARMY FOR CIVIL WORKS;
LT. GEN. JOE N. BALLARD, CHIEF OF ENGINEERS; MAJ. GEN. PHILLIP R.
ANDERSON, COMMANDER, MISSISSIPPI VALLEY DIVISION, U.S. ARMY CORPS OF
ENGINEERS; AND COL. ROBERT CREAR, COMMANDER, VICKSBURG DISTRICT, U.S.
ARMY CORPS OF ENGINEERS,
Defendants-Appellees,

and

BOARD OF MISSISSIPPI LEVEE COMMISSIONERS; BOARD OF LEVEE
COMMISSIONERS FOR THE YAZOO-MISSISSIPPI DELTA,
Intervenors-Appellees.

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Appeals from the United States District Court
for the Eastern District of Louisiana
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October 23, 2000

Before KING, Chief Judge, and REYNALDO G. GARZA, and PARKER, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

BACKGROUND

On October 2, 1996, a coalition of environmental and wildlife conservation groups
 2

(“Conservation Groups”) filed suit seeking a declaratory judgment and injunctive relief to prevent

the United States Army Corps of Engineers (“Corps”) from proceeding with a flood control

project known as the Mississippi River Mainline Levee Enlargement and Berm Construction

Project (“Project”). The Project involves 1,610 miles of authorized levees and berms and

associated seepage control measures along the Mississippi River, including the levees, all lands

between the levees, the river, and 3,000 feet landside of the levees on both sides of the river.

Completion of the project will require construction of 128 separate components or “work items”

in seven states: 49 in Louisiana, 40 in Mississippi, 17 in Arkansas, 13 in Missouri, 6 in Illinois, 2

in Tennessee, and 1 in Kentucky. The Project, part of the Mississippi River and Tributaries

Project which Congress mandated under the Mississippi River Flood Control Act of 1928, is

estimated to require 33 years for completion.

The Project’s Environmental Impact Statement was initiated in 1974 and finalized in April

of 1976. The Conservation Groups challenged the Corps’s decision to proceed with the Project,

alleging that the action violated the National Environmental Policy Act of 1969 (“NEPA”), 42

U.S.C. § 3421-4379d, because the Corps neglected to prepare a Supplemental Environmental

Impact Statement (“SEIS”) on the Project in light of: (1) new information and new circumstances

that had arisen over the past two decades and (2) changes that were made to the Project since the

preparation of the original EIS.

Once the Complaint was filed, the Board of Mississippi Levee Commissioners and the

Board of Levee Commissioners for the Yazoo–Mississippi Delta (“Levee Boards”) moved for
 3

leave to intervene as defendants, which the district court granted.1 The Levee Groups, Corps and

Conservation Groups entered into settlement negotiations. Those negotiations culminated in a

Consent Decree that was entered by the district court on June 25, 1997. The Consent Decree

obligated the Corps to prepare a SEIS on the Project that satisfied all of NEPA’s requirements.

In July 1998, after distributing a draft SEIS for public comment and receiving extensive comments

and critiques from the Conservation Groups on the draft, the Corps issued the final impact

statement for the Project, which was approximately 1,700 pages in length. The Conservation

Groups re-submitted comments raising legal and factual concerns. On October 5, 1998, the

Corps signed the Record of Decision for the Project, approving the plan recommended in the final

SEIS.

The SEIS identifies and discusses four alternative plans. First, under the Nonstructural

option, in the event of floods, the government would simply seek to reduce and reimburse for

existing damages. Second, under the Landside Borrow choice, the levees would be raised,

strengthened, maintained and protected from seepage through continuing construction, using

earth obtained solely from the landside of the levee.2 Third, under the Traditional Method, as in

the Landside Borrow alternative, the levees’ construction would be commenced, however, the

building material would be obtained primarily from the riverside locations closest to the

construction site. Fourth, under the Environmental Design or Avoid and Minimize plan, the

1
The Levee Boards served as partners with the Corps in the Project, having acquired
thousands of acres of riverside lands from which to supply the Corps with borrow material for the
Project.
2
The Conservation Groups argue that the Nonstructural and Landside Borrow
alternatives were eliminated from consideration on the basis of preliminary screening and not
evaluated in detail in the SEIS.
 4

Corps would first obtain landside cropland for borrow material from willing sellers, but if such

land were not reasonably available, riverside land could be used.

The Conservation Groups preferred the Landside Borrow alternative. The Corps selected,

however, the Avoid and Minimize alternative as the plan to accomplish the objectives of the

Project at an additional cost of 33 million dollars in order to reduce the impact to bottomland

hardwoods. To obtain construction material for the levees and landside seepage berms, the Corps

will use the soil from bottomland hardwood wetlands and other wetlands.3

According to the SEIS, the selected alternative method minimizes, to the maximum extent

practicable, the impact of individual work items by requiring detailed surveys and subsurface

information evaluations to reduce the effect on bottomland hardwood wetlands. The plan

involves 7,328 acres of wetlands (3,691 acres of forested wetlands and 3,637 acres of farmed

wetlands). There are 5,166 acres of affected bottomland hardwood wetlands. The SEIS

recommends reforesting 5,863 acres of frequently flooded agricultural land not directly impacted

by borrow excavation to mitigate wetland, terrestrial, and waterfowl resource impacts. The SEIS

maintains that a net gain of over 6,700 acres of high quality riverside aquatic habitat will be

created by constructing borrow pits. Three thousand acres of riverside borrow pits will be

designed for drainage and reforestation of high quality bottomland hardwoods. The SEIS

concludes that there will be a net increase in terrestrial, wetland, waterfowl, and aquatic resource

values and that, when the proposed action is considered in conjunction with other activities, no

cumulative negative environmental impact results on an ecosystem, landscape, or regional scale.

3
The “borrow pits” that are left after the soil is excavated are an average size of eight feet
deep over 100 to 200 acres. The riverside borrow lands in Mississippi were acquired for the
specific purpose of fulfilling the Levee Boards’ responsibilities to the Corps.
 5

The Conservation Groups contend that potential mitigation lands were not identified in the

SEIS and that, although the Record of Decision adopts the recommended number of mitigation

acres, the Project destroys vast areas of wetlands where the levee or berms will actually be

located and where soil will be dug up to be used as building material for the levees and landside

seepage berms. The Conservation Groups allege that the bottomland hardwood wetlands are

among the Nation’s most important and most depleted, with some 80 percent of the original

wetlands already having been lost. In addition, the Groups note that the wetlands support many

wildlife species, help clean chemical pollutants from the river water, ease erosion from nearby

farmlands, and recharge ground water supplies.

The Conservation Groups contend that the SEIS is misleading and inaccurate because it

fails to provide sufficient information upon which the Corps could make a rational decision

concerning the manner in which to proceed with the Project. The dispute is centered on the

Corps’s decisions regarding the location and source of the material that will be used to enlarge

portions of the existing levee system. The Conservation Groups want the material to be obtained

from the landside of the levees, but the Corps decided to extract it from the riverside of the

levees.

The Corps maintains that it complied with the terms of the consent decree by producing a

SEIS that: 1) included comments from other federal agencies; 2) was completed within 24 months

of the date of the entry of the consent decree; 3) analyzed site specific techniques as an alternative

to achieve project objectives; 4) analyzed direct, indirect, and cumulative impacts of the Project;

and 5) analyzed mitigation.

On December 4, 1998, the Conservation Groups challenged the substantive adequacy of
 6

the SEIS under the auspices of the Consent Decree. On September 8, 1999, the district court

entered judgment denying the Conservation Groups’ Motion to Enforce Consent Decree and for

Summary Judgment and granting the Corps’s and Intervenors’ Motions for Summary Judgment.

This appeal followed.

ANALYSIS

A. Standard of Review

Courts of Appeals review summary judgments de novo, applying the same standard as the

district courts. Fed.R.Civ.P. 56. The moving party is entitled to judgment as a matter of law

when the pleadings, answers to interrogatories, admissions and affidavits on file indicate no

genuine issue as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct.

2548, 2552, 91 L.Ed.2d 265, 273 (1986). If the burden at trial rests on the non-movant, the

movant must merely demonstrate an absence of evidentiary support in the record for the non-

movant’s case. See id.

This Court will consider the evidence in the light most favorable to the non-movant, yet

the non-movant may not rely on mere allegations in the pleadings; rather, the non-movant must

respond to the motion for summary judgment by setting forth particular facts indicating that there

is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct.

2505, 91 L.Ed.2d 202 (1986). After the non-movant has been given the opportunity to raise a

genuine factual issue, if no reasonable juror could find for the non-movant, summary judgment

will be granted. See Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548; Fed.R.Civ.P. 56(c).

This Court’s role in reviewing the adequacy of the SEIS is governed by the Administrative

Procedure Act (“APA”), 5 U.S.C. § 706. Section 706(2) provides that a reviewing court shall
 7

“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. 1980). This Court has set

forth three criteria for determining the adequacy of an EIS:

(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.

See Isle of Hope Historical Ass’n, Inc. v. U.S. Army Corps of Engineers, 646 F.2d 215, 220 (5th

Cir. 1981). The SEIS must provide information to satisfy these criteria. Id. Furthermore, the

conclusions upon which an SEIS is based must be supported by evidence in the administrative

record. See e.g., Sabine River Authority v. U.S. Dept. of Interior, 951 F.2d 669, 678 (5th Cir.

1992), cert. denied, 506 U.S. 823 (1992).

This Court must not “substitute [its] judgment for that of the agency,” Ross v. Federal

Highway Admin., 162 F.3d 1046, 1050 (10th Cir. 1998), and it must “avoid placing extreme or

unrealistic burdens on the compiling agency.” Isle of Hope Historical Assoc., Inc., 646 F.2d at

220. Because the “analysis of the relevant documents requires a high level of technical expertise,

[courts] must defer to the informed discretion of the responsible federal agencies.” Marsh v.

Oregon Natural Resources Council, 490 U.S. 360, 377, 109 S.Ct. 1851, 1861 (1989) 104

L.Ed.2d 377 (internal quotation omitted).

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
 8

variety of concerned public and private actors. Morongo Band of Mission Indians v. Federal

Aviation Administration, 161 F.3d 569, 575 (9th Cir. 1998). NEPA “exists to ensure a process,

not a result.” Id. This Court is to follow the “rule of reason” and a “pragmatic standard which

requires good faith objectivity but avoids ‘fly specking.’” Id. (citing Lathan v. Brineger, 506 F2d

677, 693 (9th Cir. 1974)). Agencies must explore and evaluate all reasonable alternatives. 40

C.F.R. § 1502.14. The regulations of the Council on Environmental Quality (“CEQ”) and the

Corps, which are entitled to substantial deference, require federal agencies to prepare supplements

if there are significant new circumstances or information relevant to environmental concerns and

bearing on the proposed action or its impacts.

B. SEIS

1. Cumulative Impacts Analysis

On appeal, the Conservation Groups argue that the SEIS prepared by the Corps violates

NEPA because its cumulative impacts analysis, its mitigation analysis, and its alternatives analysis

are fatally flawed.4 First, the Groups contend that the cumulative impacts analysis does not

appropriately consider the cumulative impacts of other ongoing, proposed, or reasonably

foreseeable future projects, and improperly substitutes general statements about mitigation for the

requirement to analyze cumulative impacts.5 The Conservation Groups maintain that the

cumulative impacts analysis is based on arbitrary conclusions directly contradicted by relevant

4
The Conservation Groups do not challenge the district court’s analysis and conclusions
with regard to the Project’s site specific or water quality impacts.
5
The Conservation Groups allege that the administrative record reveals no analysis
whatsoever of: (1) other Corps water resources projects in the Project area; (2) other Corps
operations and maintenance activities on the Mississippi River; and (3) a multitude of private
actions in the Project area.
 9

evidence in the administrative record and that the Corps should not avoid an analysis of the

cumulative impacts on the grounds that compensatory mitigation resolves the issue. According to

the Conservation Groups, the SEIS analysis places the environmental impacts of the Project in a

false light by painting a picture of an environmentally benign project, when nothing could be

further from the truth.

The district court found that the decision of the agency was not arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law because the Corps considered the

cumulative impacts of the Project, which it concluded would not be significant.6 The district

court noted that the Corps considered other proposed projects and made the information available

to a larger audience. The district court also observed that there was no indication that the

selected alternative Project plan would have any cumulative impact other than that addressed in

the SEIS.

6
To support its assertion, the district court quotes the SEIS:

Currently, there is a variety of proposed water resource projects (flood control and
environmental restoration) in the Delta. Studies are being conducted to evaluate the
direction and magnitude of environmental change associated with these proposed projects.
However, these projects are being designed to avoid and minimize environmental impacts
to the extent practicable, and where appropriate offset unavoidable impacts. . . .

The incremental impact of the proposed action, when added to former, present, and
foreseeable future actions, results in a net gain in nationally significant habitat and
environmental values in the study area. The proposed action would not improve or
worsen any cumulative effects associated with the existing Mississippi River levees and
other activities in the Lower Mississippi River Valley. Although the project may induce
some sediment and nutrient retention, this retention would be small in scale and would not
affect the hypoxia zone in the Gulf of Mexico. The environmental design and
compensation features net an increase in terrestrial, wetland, waterfowl, and aquatic
resource values such that no significant cumulative environmental impact results on an
ecosystem, landscape, or regional scale when the proposed action is considered in
conjunction with other activities.
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Under the “arbitrary and capricious” standard of review, this Court must give the Corps’s

decision substantial deference. After an examination of the administrative record, we find that the

Corps’s cumulative impact analysis provided sufficiently rigorous identification and consideration

of the cumulative impacts of ongoing, proposed, and reasonably foreseeable future action to allow

appropriate public assessment of the Project in accordance with NEPA. The Corps’s

consideration of other projects’ potential cumulative environmental impacts in the relevant

geographical area fulfills NEPA’s requirements.

2. Mitigation Analysis

The Conservation Groups claim that the SEIS does not provide sufficiently detailed

analysis of the effectiveness of the proposed mitigation, disputing the Corps’s assertion that the

net and cumulative effect of the proposed work is zero because all unavoidable impacts of

construction including the loss of wetland functions and values are being fully compensated

through mitigation. The Groups contend that the administrative record does not support the

SEIS’s mitigation analysis and shows that mitigation efforts often fail for a number of reasons,

including poor project design, inadequate monitoring, and a lack of adequate maintenance or

remedial monitoring. Further, the Conservation Groups question whether the proposed mitigation

will be implemented because the Corps already has a backlog of 27,249 acres of reforestation and

mitigation in the district where another 5,200 acres of mitigation must occur for this Project.

They contend that, if the mitigation is unsuccessful, the impact of the Project is much more

adverse than the Corps concedes. Thus, they maintain that the SEIS does not satisfy NEPA.

The district court found that the Corps’s SEIS fully complies with NEPA’s mitigation

requirements because it discusses the environmental impacts to terrestrial, wetland, waterfowl,
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and aquatic resources for each of the five alternatives for the Project. Under CEQ regulations,

agencies must provide a discussion of actions that can be taken to mitigate adverse environmental

impacts to guarantee that agencies have seriously contemplated the environmental consequences

of proposed federal projects. As the district court observes, citing Robertson v. Methow Valley

Citizens Council, 109 S.Ct. 1835, 1847 (1989), there is “a fundamental distinction, however,

between a requirement that mitigation be discussed in sufficient detail to ensure that

environmental consequences have been fairly evaluated, on the one hand, and a substantive

requirement that a complete mitigation plan be actually formulated and adopted, on the other.”

The Corps’s mitigation analysis has produced a result that is not subject to reversal under

an arbitrary and capricious standard of review. The SEIS identifies the unavoidable impacts to

terrestrial, wetland, and waterfowl resources and formulates alternative measures to compensate

for those losses, including the acquisition of in-kind land for compensation. The Conservation

Groups make valid points in challenging the Corps’s mitigation assumptions, arguing that the

success of wetlands mitigation is questionable.7 However, the Corps has conducted a serious and

thorough evaluation of environmental mitigation options for the Project to allow its analysis to

fulfill NEPA’s process-oriented requirements, and thus to survive the arbitrary and capricious

standard of review.

3. Alternatives Analysis

The Conservation Groups challenge the SEIS on the grounds that its alternatives analysis

fails to adequately evaluate a wholly reasonable alternative and an appropriate range of

7
The Conservation Groups point to documents in the administrative record pertaining to
the success rate of mitigation, the pre-existing mitigation commitments, and the uncertainty of
funding.
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alternatives. The Groups contend that the Corps did not rigorously evaluate the Landside Borrow

alternative and violated NEPA in choosing the Avoid and Minimize method. According to the

Conservation Groups, the SEIS should not have abandoned the Landside Borrow alternative after

only preliminary screening and is misleading because it abandons its stated priority for locating

borrow areas in landside cropland and adopts landside borrowing as an option of last resort.

Furthermore, the Conservation Groups maintain that the range of alternatives considered was

insufficient because each of the alternatives have the same end result. See State of California v.

Block, 690 F.2d 753, 767 (9th Cir. 1982) (holding that an inadequate range of alternatives was

considered where the end result of all eight alternatives was development of a substantial portion

of wilderness). Under NEPA, the SEIS should “rigorously explore and objectively evaluate all

reasonable alternatives.” 40 C.F.R. § 1502.14(a). According to the Conservation Groups, the

Corps did not evaluate all reasonable alternatives for the Project.

Stating that the Conservation Groups’ argument amounts to nothing more than a

disagreement with the alternative the Corps chose, the district court held that the analysis of

Project alternatives in the SEIS was sufficient to satisfy NEP and the CEQ regulations. The

district court was satisfied with the reasons the Corps gave for rejecting the landside alternative

after only preliminary screening: 1) the alternative is at odds with the Project’s purpose of

providing protection to valuable farmland and urban areas on the landside of the levees; 2)

acquiring the valuable farmland would cost approximately 30% more than acquiring the

frequently-flooded farmland on the riverside; 3) there were numerous objections to the alternative

by Project sponsors and residents in the delta; and 4) the relative habitat values of the riverside

borrow area are superior to the landside borrow areas because periodic flushing on the landside
 13

will accumulate more agricultural pesticides and herbicides. Accordingly, the district court was

persuaded that the Corps had rigorously evaluated all reasonable alternatives.

Our review of the record persuades us that the Corps has conducted a “rigorous” and

“thorough” evaluation in this case. It rejected alternatives, even those that could be considered to

be viable and reasonable alternatives, after an appropriate evaluation. That rejection was not

arbitrary or capricious. Therefore, we affirm the district court’s decision to grant summary

judgment in favor of the defendants.

CONCLUSION

Given the heightened deference that this Court must afford the Corps’s decision to

proceed with the Project under an “arbitrary and capricious” standard of review, we affirm the

district court’s finding that the SEIS’s cumulative impacts, mitigation, and selected alternatives

analysis satisfies NEPA’s requirements. Accordingly, we affirm the denial of the Conservation

Groups’ Motion to Enforce Consent Decree and for Summary Judgment, and we affirm the grant

of the Corps’s and Intervenors’s Motion for Summary Judgment.