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

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.

The Karankawa Kadla Tribe of the Texas Gulf Coast and two nonprofit organizations filed a lawsuit against the U.S. Army Corps of Engineers in the federal district court for the Southern District of Texas challenging issuance of a Clean Water Act Section 404 permit for expansion of the Moda Ingleside Energy Center, a crude oil export terminal in the Corpus Christi Ship Channel. The plaintiffs asserted violations of the Clean Water Act, NEPA, and the Administrative Procedure Act, including a failure to consider the expansion’s contribution to climate change.