Louisiana Wildlife Federation, Inc. v. Dennis J. York, Colonel
761 F.2d 1044, 22 ERC (BNA) 2009, 15 Envtl. L. Rep. (Envtl. Law Inst.) 20614 (1985)
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Rule of Law:
An agency must prepare a supplemental Environmental Impact Statement (EIS) if new information or circumstances present a seriously different picture of the likely environmental consequences of a proposed action, especially if it undermines a critical assumption of the original EIS and raises a substantial environmental issue. When evaluating permits for wetlands conversion, the Corps of Engineers must consider practicable alternatives in light of the applicant's overall project purposes.
Facts:
- Six private landowners applied for individual permits from the U.S. Army Corps of Engineers to clear and convert approximately 5200 acres of bottomland hardwood wetlands for agricultural use, specifically soybean production.
- The U.S. Army Corps of Engineers planned the Sicily Island Area Levee Project (the Project), a federal flood control and drainage plan designed to reduce backwater flooding in a 75,000-acre area of Catahoula Parish, Louisiana.
- The Corps' final Environmental Impact Statement (EIS) for the Sicily Island Project was submitted in 1981.
- The 1981 EIS identified 21,100 acres of bottomland hardwood forests within the project area, with 1,357 acres classified as wetlands.
- Based on a survey of property owners, the Corps' 1981 EIS assumed that 82% (17,300 acres) of the forested land within the project area would be cleared for agriculture even if the Sicily Island Project was not undertaken.
- The Avoyelles III litigation established that a private landowner's clearing of wetlands for agricultural use is subject to the permit requirements of the Corps of Engineers under Section 404 of the Clean Water Act.
Procedural Posture:
- Six environmental organizations objected to the U.S. Army Corps of Engineers' issuance of six individual permits to private landowners for converting wetlands to agriculture and to the Corps' construction of the Sicily Island Area Levee Project without an additional Environmental Impact Statement.
- The environmental organizations filed a lawsuit against the Corps in the U.S. District Court for the Western District of Louisiana.
- The district court ruled that the Corps properly followed the National Environmental Policy Act (NEPA) and Environmental Protection Agency (EPA) regulatory guidelines in issuing the six individual permits.
- The district court further held that the Avoyelles III judicial decision was not a "significant new circumstance or information" that required the Corps to prepare a supplemental EIS for the Sicily Island Project.
- The environmental organizations appealed the district court's decision to the U.S. Court of Appeals for the Fifth Circuit.
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Issue:
1. Does the U.S. Army Corps of Engineers (Corps) properly consider a permit applicant's objectives when evaluating "practicable alternatives" for the conversion of wetlands to agriculture under the Clean Water Act? 2. Is the Corps required to supplement an Environmental Impact Statement (EIS) for a federal flood control project when a subsequent judicial decision (Avoyelles III) changes the regulatory landscape such that a prior assumption about land clearing is no longer tenable, potentially leading to significant new environmental impacts?
Opinions:
Majority - PER CURIAM
1. Yes, the Corps properly considered the permit applicants' objectives when evaluating "practicable alternatives" for the conversion of wetlands to agriculture. The court found that the Corps' Guidelines and case law allow, and indeed require, consideration of the applicant's "overall project purposes" to determine if an alternative is practicable. The district court's finding that the Corps did not primarily consider profit-maximization but rather balanced economic feasibility with environmental protection, by limiting clearing and requiring buffer zones, was supported by the record. 2. No, the Corps failed to give adequate consideration to whether its 1981 EIS for the Sicily Island Project must be revised in light of Avoyelles III. The Avoyelles III decision made the Corps' prior assumption that 17,300 acres of forest would be cleared regardless of the project no longer tenable, as such clearances are now subject to Section 404 permit requirements. This new legal circumstance presents a "seriously different picture of the environmental landscape" and raises a substantial environmental issue regarding potential impacts on those acres not considered in the original EIS. Therefore, the Corps' failure to reevaluate its assumption and consider the effects of Avoyelles III was unreasonable. The court vacated the district court's decision on this issue and remanded, requiring the Corps to perform an adequate analysis to determine if a supplemental EIS is necessary based on the possibility of significant unconsidered impacts.
Concurring-in-part-and-dissenting-in-part - Alvin B. Rubin
2. No, the majority is incorrect in requiring the Corps to perform an adequate analysis of whether a supplemental EIS is required. The plaintiffs failed to meet their burden of proof by not adducing any evidence, such as expert testimony, to establish that the Avoyelles III decision would have a significant environmental impact or that the Corps acted unreasonably. In environmental litigation, the plaintiff bears the burden of proving that an EIS is inadequate or that a supplemental EIS is necessary. The dissent argues that the majority based its decision on mere allegations and mathematical computations rather than on affirmative evidence presented by the plaintiffs, which deviates from sound judicial precepts and may unduly delay federal projects.
Analysis:
This case is significant for clarifying the standards agencies must apply when determining the need for a supplemental Environmental Impact Statement (EIS) under NEPA and for interpreting "practicable alternatives" under Clean Water Act Section 404 regulations. It emphasizes that new legal information, not just scientific or technical data, can trigger the need for reevaluation if it fundamentally alters the environmental baseline or an agency's critical assumptions. The ruling reinforces judicial oversight over agency environmental review processes, ensuring agencies take a "hard look" at potential environmental impacts when circumstances change, and highlights the ongoing challenge of balancing economic development with environmental protection, especially in complex, long-term projects.
