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.