Sierra Club et al v. United States Army Corps of Engineers et al
Filing
210
MEMORANDUM and ORDER denying 201 Motion to Dismiss; denying 203 Motion to Dismiss; granting 209 Motion for Leave to File. Signed by Honorable Richard G. Kopf on November 16, 2011. (jn)
THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
SIERRA CLUB, NATIONAL
AUDUBON SOCIETY, and
AUDUBON ARKANSAS,
Plaintiffs,
vs.
UNITED STATES ARMY CORPS
OF ENGINEERS, COLONEL
JEFFREY R. ECKSTEIN, District
Engineer, Vicksburg District, U.S.
Army Corps of Engineers,
Defendants,
vs.
SOUTHWEST ELECTRIC
POWER COMPANY,
Intervenor.
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4:10CV4017
MEMORANDUM
AND ORDER
The Sierra Club, the National Audubon Society, Audubon Arkansas, and two
individuals brought this lawsuit against the United States Army Corps of Engineers
requesting declaratory and injunctive relief for the Corps’ failure to comply with
federal and state laws in issuing a Clean Water Act permit (the “§ 404 permit”) to
intervening defendant Southwest Electric Power Company (“SWEPCO”), which
planned to build the John W. Turk, Jr., power plant in Arkansas.1
1
The Amended Complaint describes the power plant’s location as “in
Hempstead, Miller and Little River Counties, Arkansas, near the confluence of the
Little River and the Red River near Fulton, Arkansas.” (Filing 66 ¶ 4.)
After reaching a settlement with the defendants, individual plaintiffs Yancey
Reynolds and Charles Mills were dismissed from this action on August 22, 2011.
(Filing 200.) Thereafter, SWEPCO filed motions to dismiss this matter for lack of
standing (filing 201) and mootness (filing 203).
SWEPCO’s motions assert that this matter must be dismissed for lack of
jurisdiction because:
(1) the individual plaintiffs’ dismissal from this action,
combined with “actions by SWEPCO to mitigate potential environmental impacts as
part of its settlement with the Hempstead County Hunting Club in a companion
action 2 challenging the Corps permit,” deprive the remaining organizational plaintiffs
of standing to proceed further with this action; and (2) because completed design work
has “eliminated all but less than 0.000046 acres of the remaining discharges
authorized by the Corps permit,”3 this matter is now moot because “there is no longer
2
In Hempstead County Hunting Club, Inc. v. Southwestern Electric Power
Company, Inc., No. 4:10CV4098 (D. Ark.), the parties filed the non-confidential terms
of the settlement agreement reached by the plaintiff and SWEPCO. The terms include
various environmental and remedial measures SWEPCO agreed to perform in order
to preserve the “ecological attributes” of the area, such as providing funding,
performing testing, monitoring and installing technology related to “carbon capture
and sequestration,” installing “both a clay and synthetic liner for any coal combustion
residuals” on the Turk Plant property, limiting future development and construction,
complying with the “Cross-State Air Pollution Rule” for certain emissions at the Turk
Plant, and using certain fuel for operation of the Turk Plant. (Filing 242-1 in Case No.
4:10CV4098.)
3
The “permit” at issue is the permit issued to SWEPCO by the United States
Corps of Engineers under section 404 of the Clean Water Act. As described by the
Eighth Circuit Court of Appeals in a decision affirming the district court’s grant of
Plaintiffs’ motions for preliminary injunction in this case, the final § 404 permit
“allowed SWEPCO to discharge ‘dredged and/or fill material’ into 8.07 acres of
wetlands (5.6 acres prospectively as well as the 2.47 acres filled without
authorization) and into or along 8,150 linear feet of streams. The permit also
authorized the placement of several transmission lines across the Little and Red Rivers
and the disturbance of 0.06 acres of streambed within the Little River in connection
2
any Corps permitting decision that could be meaningfully informed by further review
of potential impacts under the National Environmental Policy Act [“NEPA”] or Clean
Water Act [“CWA”].” (Filings 201 & 203.)
I. Motion to Dismiss for Lack of Standing
SWEPCO argues that the Eighth Circuit Court of Appeals “concluded that the
plaintiffs in this action had standing based solely on the injuries alleged by Mr.
Reynolds and Mr. Mills.” Because Reynolds and Mills have now been dismissed
from this action, SWEPCO asserts, the remaining organizational plaintiffs (Sierra
Club, National Audubon Society, Audubon Arkansas) “can no longer rely on any
alleged injuries to [the dismissed individual plaintiffs] to satisfy the requirements for
associational standing.” (Filing 202 at CM/ECF pp. 7-8.)
Article III establishes three elements as a constitutional minimum
for a party to have standing: (1) “an injury in fact,” meaning “the actual
or imminent invasion of a concrete and particularized 4 legal interest”; (2)
a causal connection between the alleged injury and the challenged action
of the defendant; and (3) a likelihood that the injury will be redressed by
a favorable decision of the court. See Lujan v. Defenders of Wildlife, 504
U.S. 555, 560–61 (1992). Organizations like the Sierra Club, the
National Audubon Society, Audubon Arkansas, and the Hunting Club
“can assert the standing of their members,” Summers v. Earth Island
Inst., 555 U.S. 488 (2009), so long as (1) the individual members would
have standing to sue in their own right; (2) the organization’s purpose
with the placement of a cooling water intake structure. The permit required SWEPCO
to provide compensatory mitigation for the authorized impacts by enhancing and
protecting stream channels on site.” Sierra Club v. U.S. Army Corps of Engineers,
645 F.3d 978, 984 (8 th Cir. 2011). A copy of the permit may be found at AR003276.
4
“Particularized” means that “the injury must affect the plaintiff in a personal
and individual way.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n.1 (1992).
3
relates to the interests being vindicated; and (3) the claims asserted do
not require the participation of individual members.
Sierra Club v. U.S. Army Corps of Engineers, 645 F.3d 978, 985-86 (8 th Cir. 2011)
(parallel citations omitted). When organizations assert the standing of their members,
as is the case here, “generalized harm to the forest or the environment will not alone
support standing, [but] if that harm in fact affects the recreational or even the mere
esthetic interests of the plaintiff, that will suffice.” Summers, 555 U.S. at 494. The
Supreme Court’s cases dealing with “the law of organizational standing . . . have
required plaintiff-organizations to make specific allegations establishing that at least
one identified member had suffered or would suffer harm.” Summers, 555 U.S. at
498.
The party invoking federal jurisdiction has the burden of establishing the
elements of standing. “Since they are not mere pleading requirements but rather an
indispensable part of the plaintiff’s case, each element must be supported in the same
way as any other matter on which the plaintiff bears the burden of proof, i.e., with the
manner and degree of evidence required at the successive stages of the litigation.”
Lujan, 504 U.S. at 561. The parties agree 5 that this case is beyond the pleading stage
during which “general factual allegations of injury resulting from the defendant’s
conduct may suffice,” id., and is instead at the summary-judgment stage where the
plaintiff can no longer rest on mere allegations.
While “the desire to use or observe an animal species, even for purely esthetic
purposes, is undeniably a cognizable interest for purpose of standing,” Lujan, 504
U.S. at 562-63, the “injury in fact” requirement for standing “requires more than an
injury to a cognizable interest. It requires that the party seeking review be himself
among the injured.” Id. at 563. At this stage of the litigation, it means that Plaintiffs
5
See Filing 202, SWEPCO’s Br. at CM/ECF p. 4; Filing 205, Pls.’ Br. at
CM/ECF p. 2.
4
must “submit affidavits or other evidence showing, through specific facts, not only
that listed species were in fact being threatened by [Defendants’] activities . . . , but
also that one or more of [Plaintiffs’] members would thereby be ‘directly’ affected
apart from their ‘“special interest” in th[e] subject.’” Id. (quoting Sierra Club v.
Morton, 405 U.S. 727, 735 (1972)). However, “[i]njury in fact necessary for standing
need not be large; an identifiable trifle will suffice.” Sierra Club v. U.S. Army Corps
of Engineers, 645 F.3d at 988 (internal quotation & citation omitted).
The organizational plaintiffs have filed five affidavits6 of Sierra and Audubon
members that presumably seek to establish that these members have “sustained or
faced the threat of . . . ‘injury in fact’” from the dredge and fill activities authorized
by the § 404 permit. Friends of the Earth, Inc. v. Laidlaw Environ. Svs., Inc., 528
U.S. 167, 181 (2000). These affidavits are summarized below:
Fred Harrington: This Sierra Club member lives in Mena, Arkansas,
and “regularly navigate[s] the Little River in the area of the Turk Plant
Site” in his boat. He participates in “fishing for white bass and bird
watching on these trips,” the most recent of which was April 2011.
Harrington has been boating, fishing, and birding on the Little River for
seven years. Harrington is “concerned about impacts from filling
wetlands, running powerlines through the area, and withdrawing water
from the Little River” and “the larger impacts of air pollution from the
coal[-]fired power plant once it becomes operational. The mercury from
the stacks will potentially impact the wetlands and the fish and wildlife
even more than the initial filling and physical disturbance.” Harrington
says he “intend[s] to continue recreating on the Little River and in the
area around the Turk Plant.” (Filing 205 at CM/ECF p. 19.)
Georgia Enoch: Sierra Club member Georgia Enoch lives near
Texarkana, Arkansas, and is a birdwatcher who enjoys “taking walks and
birdwatching around Millwood Lake in the area nearby the Turk Plant.”
This fall Enoch “intend[s] to visit the area again to watch for migratory
6
SWEPCO has not objected to the filing of these affidavits.
5
birds including geese.” Enoch is “concerned about the negative impacts
that the Turk Plant might have on the area.” She “believe[s] the
wetlands and bodies of water in the area to be important habitats for
birds and other wildlife” and she does “not want SWEPCO to fill in
wetlands, run power lines through wetlands, build intake structures, and
draw massive amounts of water from the Little River.” Enoch’s “other
concerns” with the Turk Plant include “the air pollution it will pump out
and drop on the whole area.” Enoch “depend[s] on the Army Corps of
Engineers to look seriously at the environmental impacts of this coal
fired power plant and [is] upset that it failed to require a full
environmental review and failed to require the Turk Plant to locate
somewhere less damaging.” (Filing 205 at CM/ECF p. 20.)
Gail Louise Gilbert: Gilbert is a Sierra Club member who lives in
Texarkana, Arkansas, and visits the Millwood Lake and Little River
areas “often.” She has camped, fished, boated, and picnicked on
Millwood Lake for decades. Gilbert is “concerned about the negative
impacts of emissions, particularly mercury, and the destruction of habitat
and aesthetic value around the Turk Plant site,” which she observed “this
summer.” She “fear[s] that filling in wetlands, stringing power lines
through sensitive areas, and sucking large amounts of water out of the
ecosystem will harm the overall health of people and wildlife, as well as
the value of the ecosystem.” Gilbert is “horrified that SWEPCO went
ahead and built this tremendous coal fired plant, and that the U.S. Army
Corps of Engineers permitted it to happen, without properly considering
the damage it would cause.” (Filing 205 at CM/ECF p. 21.)
Daniel Scheiman: This member of the National Audubon Society lives
in Little Rock, Arkansas, and has been a bird-watcher for 24 years. He
is the Bird Conservation Director for Adubon Arkansas and has “visited
the area around the Turk Plant on many occasions over the past five
years, including Millwood Lake, the Little River Bottoms, and Grassy
Lake.” He visited the Grassy Lake/Little River Bottoms area 14 times
in 2007 and 2008 to conduct biological surveys in which he “identified
151 species of birds.” Scheiman “intend[s] to continue visiting the area
around the Turk Plant site in pursuit of [his] professional, scientific, and
aesthetic interests.” He is “aggrieved by the construction of the Turk
Plant and its intrusion in and around the wetlands and waterbodies of the
6
area.” He does “not believe the Corps of Engineers properly weighed the
relevant factors in issuing the Section 404 permit to SWEPCO.” (Filing
205 at CM/ECF p. 22.)
Frances Jo Blackburn: Blackburn is a member of the Sierra Club and
resides in Texarkana, Arkansas. A retired school teacher, Blackburn has
“a strong interest in maintaining a clean and healthy environment and
natural areas to leave our children and grandchildren.” She says she is
“concerned about the impact of the proposed SWEPCO Turk plant on
the wetlands, streams, air quality, water quality and other parts of the
environment in southwest Arkansas and beyond, including the Little
River bottomlands and the ecologically-sensitive cypress swamp areas
in the areas surrounding the proposed plant site . . . .” She is “also very
concerned about the exposure that I, my family and others in southwest
Arkansas and in the State as a whole will have to airborne contamination
from emissions from the proposed plant, and from contamination of
water from such emissions and from stormwater runoff from the plant.”
(Filing 205 at CM/ECF p. 25.)
SWEPCO contends that none of these affidavits satisfies the requirement for
associational standing that “at least one individual member will be adversely affected
in his or her ‘activities or pastimes’ by the authorized activity.” (Filing 206 at
CM/ECF p. 206.) See Sierra Club v. Morton, 405 U.S. 727, 735 (1972).
In the Eighth Circuit Court of Appeals’ decision affirming the district court’s
grant of Plaintiffs’ motions for preliminary injunction in this case, Sierra Club v. U.S.
Army Corps of Engineers, 645 F.3d at 985-86, the court found that National Audubon
Society member and then-plaintiff Charles Mills alleged adequate injury in fact for
standing purposes based on his statements that he “is an avid bird watcher and nature
photographer in the Grassy Lake area” and his “concern that plant construction would
affect one of the most beautiful areas he has visited.” Id. at 989. Those statements,
combined with the fact that “[t]he record suggests that dredging or filling portions of
the Little River, installing the water intake structure, and erecting electrical
transmission lines would injure those interests,” was enough for the court to conclude
7
that “the threat of harm to Mills’s aesthetic interests constitutes an adequate injury in
fact.” Id.
Although Mills is no longer a party to this case, Plaintiffs have submitted two
affidavits from Sierra Club and Audubon Society members that set forth the same
aesthetic interests and concerns Mills had, and which the Eighth Circuit Court of
Appeals found adequate to constitute injury in fact for standing purposes in this case.
Specifically, Audubon Society member Daniel Scheiman states that he has been a
bird-watcher for 24 years; he has visited the area around Turk Plant on many
occasions over the past five years; he has visited the Grassy Lake area 14 times in
2007 and 2008 to conduct biological surveys involving 151 species of birds; he
intends to visit this same area to pursue these scientific and aesthetic interests in the
future; and he is “aggrieved” by the Turk Plant’s “intrusion in and around the
wetlands and waterbodies of the area.” (Filing 205 at CM/ECF p. 22.) Similarly,
Sierra Club member Georgia Enoch says she is a birdwatcher who enjoys
birdwatching and walking in the Millwood Lake area near the Turk Plant; she
“intend[s] to visit the area again to watch for migratory birds including geese”; she is
“concerned about the negative impacts that the Turk Plant might have on the area”
because she “believe[s] the wetlands and bodies of water in the area to be important
habitats for birds and other wildlife”; and she does “not want SWEPCO to fill in
wetlands, run power lines through wetlands, build intake structures, and draw massive
amounts of water from the Little River.” (Filing 205 at CM/ECF p. 20.)
Because the interests and concerns reflected in Scheiman’s and Enoch’s
affidavits mirror those of Mills, and because the record—according to the Eighth
Circuit Court of Appeals—“suggests that dredging or filling portions of the Little
River, installing the water intake structure, and erecting electrical transmission lines
would injure those interests,” the plaintiffs have established adequate injury in fact for
standing purposes.
8
While it is true that the affidavits referenced above do not specifically allege
that the affiants have refrained from or curtailed bird-watching due to their concern
about the occurrence of activities authorized by the § 404 permit, see Friends of the
Earth, Inc., 528 U.S. at 182-83 (describing affidavits stating that affiants “no longer
engaged” in activities due to concern about discharge of illegal and harmful
pollutants), the affidavits and record do establish that: (1) the wetlands and bodies of
water in the Turk Plant area are habitats for birds and other wildlife; (2) some of the
organizational plaintiffs’ Arkansas members who have submitted affidavits in this
case have frequently used the Turk Plant area to further their scientific, professional,
or aesthetic interests in bird-watching and wish to do so in the future; (3) these
members are “aggrieved” and “concerned” about SWEPCO’s intrusion in, filling in,
and running power lines through, wetlands that are bird habitats in the Turk Plant
area; and (4) “dredging or filling portions of the Little River, installing the water
intake structure, and erecting electrical transmission lines would injure” the birdwatching interests of these organizational members, and at least some of those actions
are authorized under the § 404 permit at issue. Sierra Club v. U.S. Army Corps of
Engineers, 645 F.3d at 989.
This is enough to conclude that at least one identified member of the plaintiff
organizations will suffer, or has suffered, particularized harm to their aesthetic,
recreational, or scientific interests and bird-watching activities in the Turk Plant area
due to actions taken by intervenor defendant SWEPCO under the § 404 permit issued
by the defendant Corps of Engineers. Morton, 405 U.S. 735. Therefore, SWEPCO’s
motion to dismiss based on a lack of standing must be denied.
II. Motion to Dismiss Plaintiffs’ Claims as Moot
SWEPCO next moves to dismiss this case as moot because “all but less than
0.000046 acres of the remaining discharges authorized by the Corps permit” have
been completed, making further Corps review of potential impacts under the NEPA
or CWA meaningless. (Filing 203.)
9
Two varieties of mootness exist: Article III mootness and
prudential mootness. Article III mootness arises from the Constitution’s
case and controversy requirement: Article III of the United States
Constitution limits the jurisdiction of the federal courts to actual,
ongoing cases and controversies. When, during the course of litigation,
the issues presented in a case lose their life because of the passage of
time or a change in circumstances . . . and a federal court can no longer
grant effective relief, the case is considered moot. If an issue is moot in
the Article III sense, we have no discretion and must dismiss the action
for lack of jurisdiction.
On the other hand, prudential mootness, the cousin of the
mootness doctrine, in its strict Article III sense, is a melange of doctrines
relating to the court’s discretion in matters of remedy and judicial
administration. Even if a court has jurisdiction under Article III to
decide a case, prudential concerns may militate against the use of judicial
power, i.e., the court should treat the case as moot for prudential reasons.
Ali v. Cangemi, 419 F.3d 722, 723-24 (8 th Cir. 2005) (internal quotations, alterations
& citations omitted). While the Eighth Circuit Court of Appeals has recognized these
two types of mootness, “little is gained by struggling with the distinctions between the
mootness that arises from Article III and that which results from remedial discretion.”
13C Charles Alan Wright, et al., Federal Practice & Procedure § 3533.3 (3d ed.,
Westlaw 2011). “The central question of all mootness problems is whether changes
in the circumstances that prevailed at the beginning of litigation have forestalled any
occasion for meaningful relief. A wise answer to this question is always bound by the
facts of the specific case.” Id.
As described by the Eighth Circuit Court of Appeals, the § 404 permit at issue
in this case:
allowed SWEPCO to discharge “dredged and/or fill material” into 8.07
acres of wetlands (5.6 acres prospectively as well as the 2.47 acres filled
without authorization) and into or along 8,150 linear feet of streams.
The permit also authorized the placement of several transmission lines
10
across the Little and Red Rivers and the disturbance of 0.06 acres of
streambed within the Little River in connection with the placement of a
cooling water intake structure. The permit required SWEPCO to provide
compensatory mitigation for the authorized impacts by enhancing and
protecting stream channels on site.
Sierra Club v. U.S. Army Corps of Engineers, 645 F.3d at 984. See AR003276 (copy
of permit).
According to SWEPCO, “[t]he last remaining discharge authorized by the
Corps permit is related to the installation of the water intake in the Little River,” for
which the permit authorized “the disturbance of 0.06 acres of streambed within the
Little River.” (Filing 204 at CM/ECF p. 8.)7 Specifically, “the only remaining
authorized discharge required to complete the intake structure is a single boring
through the bed of the Little River for the installation of a six-inch air burst line and
straightening or replacing one piling that is no longer plumb as a result of being struck
by trees during periods of high river flows in the spring.” (Filing 204-1, Aff. Joseph
G. Deruntz, Project Manager for American Electric Power Service Corporation &
Turk Plant Project, at ¶ 11.) This work “will affect an estimated two (2) square feet
of the river bed,” id., which is “approximately 0.000046 acre, or approximately
0.00086% of the 5.6 acres of total impacts to jurisdictional waters authorized by the
permit. Thus, the authorized discharges are more than 99.999% complete.” (Filing
204, SWEPCO’s Br. at CM/ECF p. 9 n.14.)
7
The water intake structure “consists of a submerged 36-inch water intake pipe
and 6-inch air burst line extending from the left descending bank to a point near the
center of the river approximately ten feet above the river bottom. The pipe is
supported on a steel frame consisting of vertical piles driven into the river bed that are
connected by horizontal beams on which the intake pipe will rest.” (Filing 204-1, Aff.
Joseph G. Deruntz, Project Manager for American Electric Power Service Corporation
& Turk Plant Project, at ¶ 11.)
11
As of July 2011, Turk Plant construction was 73% complete with expenditures
of $1.5 billion and a scheduled commercial operation date of October 2012. (Filing
204-1, Aff. Joseph G. Deruntz, Project Manager for American Electric Power Service
Corporation & Turk Plant Project, at ¶ 8.)
Plaintiffs’ Amended Complaint for declaratory and injunctive relief alleges that
in issuing the § 404 permit to SWEPCO, the Corps failed to comply with the National
Environmental Policy Act of 1969, the Clean Water Act, and implementing
regulations issued by the White House Council on Environmental Quality, the Corps
of Engineers, and the U.S. Environmental Protection Agency by failing to follow
various procedural and substantive requirements during SWEPCO’s permitapplication process, thereby making the permit “null and void, and of no effect.”8
(Filing 66.)
Plaintiffs request several forms of relief, including a declaration that the § 404
permit is void; an injunction against the Corps prohibiting “dredge and fill activities
contained in the Permit”; revocation of the permit; an injunction prohibiting the
defendants from “taking any new action on any new permit application for this project
until they have analyzed the entire proposed development pursuant to NEPA and the
8
Specifically, Plaintiffs allege that the Corps failed to timely prepare an
Environmental Impact Statement (“EIS”) when it received SWEPCO’s permit
application; allowed SWEPCO to begin construction on the Turk Plant and to fill
regulatory wetlands on the site without a permit; failed to prepare the EIS, retain a
contractor to do so, or independently evaluate information provided by SWEPCO in
support of its permit application; failed to provide various documents, as well as to
provide a meaningful opportunity to review and comment upon key environmental
documents; affirmatively misrepresented the status of the NEPA process in
SWEPCO’s application for the permit; issued a Department of the Army Permit
Evaluation and Decision Document that did not meet NEPA requirements to analyze
alternatives and direct, indirect, and cumulative impacts; and approved mitigation
measures without analysis. (Filing 66.)
12
Clean Water Act”; an order compelling the Corps to follow NEPA, the CWA, and
relevant regulations “to prepare any future environmental documentation regarding
the proposed Project”; and an order halting further construction of the Turk Plant and
awarding Plaintiffs costs and attorney fees. (Filing 66.)
Many federal courts have dismissed similar claims as moot based on substantial
completion of projects that were at the heart NEPA disputes. See Sierra Club v.
United States Army Corps of Engineers, 277 Fed. Appx. 170, 2008 WL 2048359 (3 rd
Cir. 2008) (filling of all but 0.12 acres of 7.69 acres of wetlands allowed by § 404
permit and substantial completion of construction on top of former wetlands rendered
permit challenge prudentially moot; while court could “theoretically protect”
remaining wetlands, preserving two small remaining parcels of wetlands that were
separated by New Jersey Turnpike would not constitute “meaningful” relief); One
Thousand Friends of Iowa v. Mineta, 364 F.3d 890 (8 th Cir. 2004) (NEPA action to
stop modification of highway interchanges rendered moot by facts that interchanges
were 100% completed and open to traffic, making it impossible to preserve status quo;
noting that plaintiffs could have avoided this result by seeking stay pending appeal);
Neighborhood Transp. Network, Inc. v. Pena, 42 F.3d 1169, 1173 (8 th Cir. 1994)
(same); Voyageurs Nat’l Park Ass’n v. Norton, 381 F.3d 759 (8 th Cir. 2004) (because
procedural mistake under Endangered Species Act was cured, violation rendered
prudentially moot); Bayou Liberty Ass’n, Inc. v. United States Army Corps of
Engineers, 217 F.3d 393, 396 (5 th Cir. 2000) (NEPA suit requesting injunctive and
declaratory relief was moot when construction authorized by permit was substantially
completed; stating that substantial or complete construction is enough to moot case,
“at least in the absence of blatant bad-faith violations”); Richland Park Homeowners
Ass’n, Inc. v. Pierce, 671 F.2d 935 (5 th Cir. 1982) (while completion of project alone
might not moot claim for injunctive relief for NEPA violations, because plaintiffs
failed to seek to enjoin construction and the disputed project was completely
constructed and fully occupied, plaintiffs could not prevail unless they showed blatant
NEPA violations and that the value of requested relief outweighed interests that would
be adversely affected if relief was granted).
13
Indeed, this is a very close case. But, after carefully reading the opinion of the
Court of Appeals in this case, I reluctantly conclude that the facts of this case do not
clearly indicate that changed circumstances have “forestalled any occasion for
meaningful relief.” 13C Charles Alan Wright, et al., Federal Practice & Procedure
§ 3533.3. Under the circumstances in this case—that is, where it is unclear the degree
to which performance of the remaining work authorized under the § 404 permit would
harm the interests of the plaintiffs’ members, making it equally as unclear whether
the remedy of enjoining further activity under the permit would be “meaningful”;
where it is not apparent that the Corps’ alleged procedural and substantive
irregularities in the permit process have been corrected; where activities under the
permit and overall construction of the Turk Plant are not completed and the plant is
not yet operational; where there are allegations of affirmative misrepresentations by
the Corps during the permit process; and where SWEPCO made “repeated decisions
to proceed with plant construction even in the absence of administrative authority”
and “repeatedly ignor[ed] administrative and legal challenges and a warning by the
Corps that construction would proceed at its own risk,” Sierra Club v. U.S. Army
Corps of Engineers, 645 F.3d at 991 9—I conclude that this matter is not moot, and
SWEPCO’s motion to dismiss on that basis must be denied.10 See, e.g., Airport
9
The Eighth Circuit Court of Appeals referred to this activity as “bureaucratic
steam roll[ing],” resulting in harm that “was largely self[-]inflicted.” Sierra Club v.
U.S. Army Corps of Engineers, 645 F.3d at 991 & 997.
10
Because I have found that SWEPCO’s motion to dismiss based on mootness
must be denied, I need not address the plaintiffs’ argument that their claims are
capable of repetition yet evading review. In any event, “NEPA cases have not usually
applied this exception.” Daniel R. Mandelker, NEPA Law and Litigation 2d § 4:30
(2011). See also Neighborhood Transp. Network, Inc. v. Pena, 42 F.3d 1169, 1173
(8 th Cir. 1994) (NEPA action to enjoin highway construction project did not evade
review for purposes of exception to mootness doctrine because future projects “may
be sufficiently time-consuming so as to permit appellate review”); Bayou Liberty
Ass’n, Inc. v. United States Army Corps of Engineers, 217 F.3d 393, 398 (5 th Cir.
2000) (exception to mootness doctrine did not apply because “there are methods
available to halt the construction and receive full review of the Corps’ procedures
before the construction is substantially completed or the wet-lands are destroyed”).
14
Neighbors Alliance, Inc. v. United States, 90 F.3d 426 (10 th Cir. 1996) (NEPA case
challenging proposed upgrade of airport runway not moot even though construction
was substantially completed because if defendants failed to comply with NEPA, court
could order that runway be closed or could restrict use until defendants complied with
NEPA; stating that “courts still consider NEPA claims after the proposed action has
been completed when the court can provide some remedy if it determines that an
agency failed to comply with NEPA”).
Accordingly,
IT IS ORDERED:
1.
The Motion to Dismiss for Lack of Standing (filing 201) filed by
Southwestern Electric Power Company is denied;
2.
The Motion to Dismiss Plaintiffs’ Claims as Moot (filing 203) filed by
Southwestern Electric Power Company is denied;
3.
The Motion for Leave to File Reply in Support of Motion to Dismiss
Plaintiffs’ Claims as Moot (filing 209) filed by Southwestern Electric Power
Company is granted and its reply brief has been considered by the court.
DATED this 16th day of November, 2011.
BY THE COURT:
s/ Richard G. Kopf
United States District Judge
15
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