Harrison County v. U.S. Army Corps of Engineers

The federal district court for the Southern District of Mississippi ruled that local governments and organizations representing the lodging and tourism and commercial fishing industries did not have standing for their lawsuit asserting that the U.S. Army Corps of Engineers was required to apply for an incidental take permit under the Marine Mammal Protection Act for operation of the Bonnet Carré Spillway, which the Corps uses to divert water from the Mississippi River to protect the City of New Orleans from “overwhelming” floods. The plaintiffs alleged that the freshwater diversions had adverse impacts on environmental and economic interests in the Mississippi Sound area and resulted in “take” of the bottlenose dolphin. The court found that “[t]he possibility of future harm claimed by Plaintiffs is too speculative to constitute an injury-in-fact for Article III standing purposes,” and also that it was unlikely that the plaintiffs could establish causation and redressability since their claims would “hinge” on the actions by a third party, the National Marine Fisheries Service. In their attempt to establish future injury, the plaintiffs cited the 2023 Fifth National Climate Assessment and other sources to support their argument that increased flooding was expected that, in combination with recent Spillway openings that resulted in dolphin take, made their claims more than speculative. The court agreed with the Corps that the frequency and length of Spillway openings and the harm such openings would pose to dolphins was “unpredictable” and insufficient to establish standing.