Fifth Circuit Denies Shrimpers and Fishermen Relief from Oil Pipeline Construction
Shrimpers and Fishermen of the RGV, et al. v. US Army Corps of Engineers, et al., 2023 WL 108558 (2023).
Author: Mallory Grefer
Shrimpers and Fishermen of the RGV (Petitioner) appealed the issuance of a Clean Water Act permit by the U.S. Army Corps of Engineers. The Fifth Circuit denied the petition for review because the “Corps approved the least environmentally damaging practicable alternative presented before it during the permitting process and did not act arbitrarily in its evaluation of pipeline construction impacts and mitigation efforts….”[1] In 2016, the Developers filed an application for a natural gas pipeline in south Texas partly on wetlands. They submitted alternative proposal locations and their own environmental impact statement; subsequently the CWA issued a permit in 2020. The petitioner challenged the issuance of the permit because it allegedly was not the “least environmentally damaging” alternative as required by statute, and the trial court’s holding that the “wetland impacts caused by the pipeline construction did not necessitate compensatory mitigation.”
First, the court held that the alternatives proposed by petitioner failed as the Corps “sufficiently explained that it would result in the same functional impairment of wetlands as the permitted design and thus was not the LEDPA” (least environmentally damaging practicable alternative). Further, the construction alternative proposed by the petitioner would cause adverse effects to the hydrology of the area causing the remaining wetlands to lose function and degradation. Thus, this alternative failed to provide evidence that the issuance of the permit should be overturned.
Second, the petitioners proposed a second alternative shifting the structure of the project more west. However, it is unclear if petitioner presented this option during the permitting phase. Any alternative offered by the petitioner was not sufficiently similar to the actual plan by the Corps to force the Corps into submitting a meaningful response. The petitioner attempted to offer several alternatives that were neither logistically accurate or practicable as they employed unavailable technology. The Corps had sufficiently satisfied the “minimal standards of rationality” standard set forth by the court in rejecting the proposed alternatives thus the permitted project is the LEDPA.
The petitioner additional arguments asserting that the Corps acted arbitrarily in determining the impacts to the wetlands and the lack of mitigation. The permit still requires the Corps to adhere to certain environmental practices and minimize damage to the wetlands. Further, the court held that when the impact is temporary the Corps will determine if there are compensatory mitigation requirements and it was satisfied with the Corps’ analysis of the temporary impacts and that they do not require compensatory mitigation. Therefore, the appellate panel held that “the Corps did not act arbitrarily in its consideration of and conclusions regarding the impacts of pipeline construction and the need for compensatory mitigation.”
[1] Shrimpers and Fishermen of the RGV, et al. v. US Army Corps of Engineers, et al., 2023 WL 108558 (2023).
