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

The Fifth Circuit Court of Appeals affirmed the dismissal of claims brought by a group of Mississippi municipalities and associations to compel the preparation of a supplemental environmental impact statement (EIS) under the National Environmental Policy Act (NEPA) to address changed circumstances that resulted in more frequent use of the Bonnet Carré Spillway, which is used to divert Mississippi River water to Lake Pontchartrain instead of New Orleans. The Fifth Circuit noted that these diversions come “at a cost to the environment and to the Mississippi-based plaintiffs in this case.” The Fifth Circuit also noted that 6 of the 15 openings of the Spillway in its 89-year history had occurred in the past 10 years, with 4 of the openings occurring between 2018 and 2020, and that “[s]ome expect that matters will only get worse” due to factors including “rising global temperatures and intensified hydrologic cycles.” The Fifth Circuit agreed, however, with the district court that the U.S. Army Corps of Engineers was immune from suit. The Fifth Circuit reasoned that the Corps had no duty to prepare a supplemental EIS because while the plaintiffs identified “an abundance of new information regarding the Spillway’s usage and impacts,” they did not identify “pending decisionmaking regarding the Spillway that might hinge on the Corps’ consideration of that new information.” The plaintiffs therefore did not establish that there was “major Federal action” that remained pending that would require preparation of a supplemental EIS under NEPA, and as a result the plaintiffs could not show that the Administrative Procedure Act’s statutory waiver of sovereign immunity for claims of unlawful agency inaction applied.