Indigenous Peoples of the Coastal Bend v. U.S. Army Corps of Engineers

The Fifth Circuit Court of Appeals affirmed a district court’s determination that the U.S. Army Corps of Engineers conducted an adequate environmental review of a Clean Water Act permit to facilitate cxpansion of a crude oil export terminal at the Port of Corpus Christi in Texas. The Corps prepared an environmental assessment for the project and concluded it would not have a significant impact on the environment. The Fifth Circuit held that the Corps did not violate the National Environmental Policy Act (NEPA), the Clean Water Act, or the Administrative Procedure Act. Regarding the plaintiffs’ arguments that the Corps’ consideration of climate change was insufficient, the Fifth Circuit found that the Corps did not act arbitrarily or capriciously by limiting its analysis of climate change impacts to the effect of the dredging and filling activity authorized by the permit. The court noted that the Corps had found that the project would result in “a negligible release of greenhouse gases into the atmosphere” from impacts to aquatic resources and from operation of construction equipment. The Fifth Circuit said the Corps’ discussion “easily” met the Fifth Circuit’s standard for agency obligations to consider climate change under NEPA. The court declined to adopt any requirement adopted by other courts requiring consideration of downstream impacts such as “emissions from the end-use of petroleum products that may be exported from the expanded Terminal.” The Fifth Circuit further noted, in any event, that the plaintiffs had forfeited arguments related to impacts resulting from increased vessel traffic.

The federal district court for the Southern District of Texas granted summary judgment to the U.S. Army Corps of Engineers and the owner of a crude export terminal on the Gulf Coast in a lawsuit challenging the Corps’ issuance of an amended permit to facilitate expansion of the terminal. The court rejected the claims by two Tribes and a local association that the Corps violated NEPA and the Clean Water Act, including by failing to analyze climate change and its impacts. The court first declined to permit extra-record evidence, including a 2018 climate assessment from the U.S. Global Change Research Program, of which the plaintiffs asked the court to take judicial notice for purposes of background information. On the merits of the plaintiffs’ argument regarding consideration of climate change, the court agreed with the defendants that the Corps did not have to consider the terminal’s downstream operational effects, but instead could limits its analysis to the specific activity requiring a Corps permit. Based on this scope of impacts, the court found that the Corps satisfied NEPA’s hard look standard when it considered the greenhouse gas emissions from construction activities and found them to be minimal. The court also rejected the plaintiffs’ argument that the Corps’ public interest review overlooked climate change in violation of the Clean Water Act. The Corps found that the review was well reasoned and met Clean Water Act requirements.