National Wildlife Federation et al v. United States Army Corps of Engineers et al
Filing
50
ORDER denying 14 Motion for Preliminary Injunction. Signed by Judge David R. Herndon on 11/25/14. (klh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
NATIONAL WILDLIFE FEDERATION,
PRAIRIE RIVERS NETWORK, MISSOURI
COALITION FOR THE ENVIRONMENT,
RIVER ALLIANCE OF WISCONSIN, GREAT
RIVERS HABITAT ALLIANCE, and
MINNESOTA CONSERVATION
FEDERATION,
Plaintiffs,
v.
NO. 14-590-DRH-DGW
UNITED STATES ARMY CORP OF
ENGINEERS; LT. GENERAL THOMAS P.
BOSTICK, Commanding General and Chief
of Engineers; MAJOR GENERAL MICHAEL
C. WEHR,1 Commander of the Mississippi
Valley Division of the Army Corps of
Engineers,
Defendants.
MEMORANDUM AND ORDER
HERNDON, District Judge:
I.
INTRODUCTION
This matter comes before the Court on Plaintiffs’ Notice of Motion and
Motion for a Preliminary Injunction (Doc. 14).
Plaintiffs contend that the
Defendants’ management of the Upper Mississippi River System (“UMRS”) violates
the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321, et seq. They
1
Major General Wehr is now the Commander of the Mississippi Valley Division of the United
States Army Corps of Engineers and is automatically substituted as a defendant. See Fed. R. Civ.
P. 25(d).
1
seek an injunction halting construction of any new river training structures in the
UMRS pending the resolution of this case (Doc. 14-1).
Specifically, Plaintiffs
contend that the Environmental Impact Statement (“EIS”) prepared by Defendant
United States Army Corp of Engineers in 1976 has become obsolete, and that the
Corps cannot go forward with three proposed new projects in the Middle
Mississippi River (“MMR”) (the portion of the Mississippi River between its
confluence with the Ohio and Missouri Rivers) until it completes a Supplemental
Environmental Impact Statement (“SEIS”).
Defendants do not dispute the need for an SEIS and expect to have one
completed by the end of 2016. But Defendants respond that they have complied
with NEPA by analyzing the environmental impacts of the proposed projects in
Environmental Assessments (“EAs”), wherein they determined the projects are
unlikely to have a significant impact on the human environment.
Defendants
further contend that they are charged with maintaining a safe and dependable
navigation channel on the Middle Mississippi River and that the proposed new
projects are in furtherance of that mission.
Plaintiffs filed their motion for a preliminary injunction on July 3, 2014
(Doc. 14). Defendants filed their brief in opposition on July 29, 2014 (Doc. 21).
This Court held a hearing on the motion on October 16, 2014, and took the
matter under advisement. After carefully considering the arguments and evidence
presented by the parties, both in their written submissions and during the
hearing, the Court finds and concludes as follows.
2
II.
A.
FINDINGS OF FACT
The Corps, the Middle Mississippi River, and the Environment.
1.
Through a series of acts beginning in 1824, Congress directed the
Corps to create and maintain a navigation channel through the Mississippi River
of sufficient depth to support year-round navigation. See Act of May 24, 1824, 4
Stat. 32, 33; Act of June 10, 1872, 17 Stat. 347; Act of Mar. 3, 1873, 17 Stat.
560; Act of June 25, 1910, Pub. L. No. 61-262, 36 Stat. 630; Act of Jan. 21,
1927, Pub. L. No. 69-560, 44 Stat. 1010.
2.
For more than 100 years, the Corps has fulfilled that directive. On
the Middle Mississippi River (“MMR”), the Corps relies primarily on “regulating
works” such as river training structures (dikes), revetment (bank stabilization),
and rock removal, all of which contract the flow of the river so that it scours the
river bed. The Corps supplements these regulating works with operations and
maintenance (“O&M”) activities, such as dredging, though these are more costly
and afford only temporary relief.
The project to obtain and maintain the
navigation channel in the Middle Mississippi River, known as the “Regulating
Works Project,” includes both regulating works and O&M activities.
3.
The Corps first prepared an EIS for the Regulating Words Project in
1976.2 The purpose of the EIS was “to investigate environmental changes which
have occurred on the Middle Mississippi River that may have been brought about
2 The EIS states that the Mississippi River can be divided by its physical characteristics into three
segments — the upper, middle, and lower Mississippi River. The section known as the Middle
Mississippi River “extends from the mouth of the Missouri River to the mouth of the Ohio River, a
distance of 195 [river] miles” (AR MVS 22).
3
by the 9-foot navigation project” (Administrative Record (“AR”) MVS 6). The EIS
included analysis of “the continuing attainment and operation and maintenance of
a 9-foot-deep by 300-foot-wide navigation channel within the Mississippi River
between the Ohio and Missouri Rivers by the use of channel contraction dikes,
protective bankline revetments, and any necessary dredging” (AR MVS 6-8; MVS
33-69).
4.
In 2012, the 1976 EIS was reviewed by an interdisciplinary team,
called the Project Delivery Team (“PDT”), within the St. Louis District of the
Corps. The PDT members compared the 1976 EIS with the current management
of the project, examined potential new information to determine whether the EIS
should be supplemented, and ultimately issued a report titled “Draft Review of the
1976 Final EIS:
Mississippi River between the Ohio and Missouri Rivers
Regulating Works” (AR MVS 667-712).
5.
The PDT concluded that the project as described in the 1976 EIS had
not substantially changed.
Specifically, the PDT noted that while the
configuration of dikes can vary widely, the basic configuration feature is the same:
“namely, these are rock structures engineered to manage the location of sediment
deposition for the purpose of maintaining the 9-foot navigation channel within the
Mississippi River” (AR MVS 678). The PDT also found that the use of bendway
weirs, a low level submerged rock dike, was not a substantial change to the
project because “the EIS was broadly written and clearly referenced the
construction of ‘low dikes,’” and the EIS was not limited to the specific structures
4
listed, as it also referenced future dike construction and allowed for flexibility in
dike design construction (AR MVS 679).
6.
The PDT report notes that “[w]hile configurations of river training
structures have evolved over time to generate more effective results and to
generate enhanced environmental benefits, the purpose and function of these
structures themselves has changed very little over the years” (AR MVS 699).
7.
The
PDT
determined,
however,
that
new
information
and
circumstances relevant to environmental concerns justified preparation of an
SEIS (AR MVS 684-87; MVS 689-98; MVS 700). Specifically, the new information
the PDT considered included: (1) the environmental effects of river training
structures on benthic invertebrates and fisheries; (2) the importance of the
floodplain and off-channel aquatic habitat to riverine organisms; (3) whether the
maintenance of low-velocity fish-migration corridors need to be considered when
designing river training structures to reduce potential impact on spawning fish;
(4) the impact of dredging and disposal on the aquatic habitat of the main
channel; (5) studies on the environmental impact from tow-boat traffic on the
main channel and the mortality of fish from propellers; and (6) the fact that,
subsequent to the preparation of the 1976 EIS, two species were placed on the
federally endangered species list.
Endangered species under NEPA are
considered significant resources and an impact analysis of the project must be
conducted for each alternative. (Id.)
5
8.
After the PDT completed its review and report, it asked the Corps’
Planning Center of Expertise for Inland Navigation (PCXIN) to review the report,
as well as the 1976 EIS and the supporting reference material. To avoid undue
influence on the review, the report reviewed by the PCXIN did not include the
PDT’s recommendation on how to proceed (AR MVS 713).
9.
The PCXIN assembled a team of subject matter experts, who
reviewed the documents and recommended a path forward. Like the PDT, the
PCXIN determined that there had been “no substantial changes” to the Middle
Mississippi River Regulating Works Project: “[e]quipment used to conduct dike
and revetment construction/repairs is essentially the same, maintenance dredging
methods are for the most part identical, and in fact the action has evolved in time
to routine dike and revetment maintenance and less maintenance dredging” (AR
MVS 713, 719).
Nevertheless, the PCXIN also noted there was “persuasive
evidence of a substantial body of new information ... relevant to environmental
concerns” (AR MVS 719) and accordingly, on December 20, 2013, the Corps
issued a Notice of Intent (“NOI”) to prepare an SEIS for the St. Louis District
MMR Regulating Works Project (AR MVS 1021-22; 78 Fed. Reg. 77, 108 (Dec. 20,
2013)). The Corps expects to have a final SEIS completed by the end of 2016
(Feldmann Decl. ¶ 6).
10.
In light of the Corps’ mission to maintain the navigation channel and
the time it will take to issue a final SEIS, the Corps prepared site-specific EAs for
proposed work, including construction of new river training structures, in three
6
areas:
Eliza
Point/Greenfield
Bend
(“Eliza
Point”),
Dogtooth
Bend,
and
Mosenthein/Ivory (“Mosenthein”) (the proposed work at the Mosenthein site is
primarily new revetment work with only one new river training structure) (Id. at
¶¶ 7–10).
11.
The EAs “tiered” off the 1976 EIS3 but considered significant new
circumstances and information relevant to the environmental impacts of each
alternative on the human environment, including the research on the effects of
river training structures on flood levels and the cumulative impacts of the
proposed action (AR MVS 2273-2301; 2320-2346 (Mosenthein); MVS 3075-3103;
3118-3143 (Eliza Point); and MVS 3895-3923; 3940-3965 (Dogtooth Bend)).
12.
The Corps received and responded to comments on its publicly-
issued draft EAs, including comments by Plaintiffs and their expert, Dr. Nicholas
Pinter (AR MVS 2356-2465 (Mosenthein); MVS 3153-3198 (Eliza Point); MVS
3975-4062 (Dogtooth Bend)), and held a public hearing on the Dogtooth Bend EA
(AR MVS 3975-4062).
13.
Ultimately, the Corps determined that the new construction in the
three proposed work areas was not likely to adversely affect the human
environment and on April 17, 2014, it issued Findings of No Significant Impact
(“FONSIs”) for all three work areas (AR MVS 2271 (Mosenthein); MVS 3073 (Eliza
Point); MVS 3893 (Dogtooth Bend)).
3
“[T]hrough a process called ‘tiering,’ agencies can ‘relate broad and narrow actions and . . . avoid
duplication and delay.’” Churchill County v. Norton, 276 F.3d 1060, 1074 (9th Cir. 2001).
Tiering allows an agency to eliminate repetitive discussions of the same issues. Id.
7
14.
Plaintiffs filed their Complaint for Declaratory and Injunctive Relief
on May 22, 2014 (Doc. 2). Defendants filed their Answer on August 11, 2014,
challenging as affirmative defenses both the Court’s subject matter jurisdiction
and the Plaintiffs’ standing to bring the lawsuit (Doc. 25).
B.
Standing
15.
Plaintiffs are nonprofit organizations formed and operated to protect
wildlife. They have established conservation programs to restore rivers’ natural
functions and they take active roles in monitoring legislation and the actions of
federal and state agencies that affect watershed management (Doc. 2 at 10-16;
Doc. 49 at 8:3-18, 9:4-18, 11:1-19).
16.
During the October 16, 2014 hearing, Plaintiffs presented two
witnesses on the issue of standing: Dr. Clark Bullard and Jamie Nash-Mayberry.
Plaintiffs have not presented any other testimony or affidavits to establish their
constitutional standing.
17.
Dr. Bullard is a retired professor of mechanical engineering at the
University of Illinois in Champaign-Urbana. His specialty is in fluid mechanics
and “large system optimization simulation” (Doc. 49 at 5).
He serves on the
Board of Directors for Plaintiff National Wildlife Federation (“NWF”) and is NWF’s
representative in Illinois, Ohio, and Indiana.
He was also the organization’s
Central Vice Chair for the intermountain states and has been a member of NWF
off and on since 1970. Dr. Bullard is also a member of Plaintiff Prairie Rivers
Network’s (“PRN”) Board of Directors (Id. at 10).
8
18.
Dr. Bullard is fascinated by rivers, and as a canoeist and kayaker, he
regularly enjoys and observes them. He has visited various unspecified portions
of the Mississippi River, but he had not seen any of the sites at issue in this
motion until October 15, 2014 – the day before the hearing. Dr. Bullard has not
canoed at the Eliza Point, Dogtooth Bend, or Mosenthein/Ivory sites, but he plans
to do so in the future.
19.
Dr. Bullard has not conducted a formal analysis of the Mississippi
River, but he is concerned that construction of river training structures and
continuing implementation of the nine-foot channel project will increase flooding.
He is also concerned that canoeists on the Mississippi River could become
ensnared by notched, dike-type river training structures. He bases these concerns
on his 40 years of observing rivers in the Upper Mississippi River area.
20.
Ms. Nash-Mayberry is a member of Plaintiff PRN and a high school
social studies teacher (Doc. 49 at 22). The school district where she teaches lies
entirely in a flood plain between Grand Tower and Thebes. She has worked with
her students for years to raise awareness about flooding-related issues. She is
concerned about the effects of the proposed river training structures, particularly
at Dogtooth Bend and Grand Tower, which are both in close proximity to where
she lives and works. She is particularly concerned about the possibility that the
proposed construction in those areas could lead to higher flood levels in her
community.
9
III.
A.
CONCLUSIONS OF LAW
Standing
1.
Plaintiffs National Wildlife Federation, Missouri Coalition for
the Environment, River Alliance of Wisconsin, Great Rivers
Habitat Alliance, and Minnesota Conservation Federation do
not have standing.
1.
Plaintiffs National Wildlife Federation (“NWF”), Missouri Coalition for
the Environment (“MCE”), River Alliance of Wisconsin (“RAW”), Great Rivers
Habitat Alliance (“GRHA”), and Minnesota Conservation Federation (“MCF”) have
failed to meet the requirements to show that they have constitutional standing to
bring this lawsuit and seek preliminary injunctive relief.
2.
Under Article III of the Constitution, federal courts are limited to
hearing “Cases” and “Controversies.” U.S. Const. Art. III. This provision limits
the judicial power “to the traditional role of Anglo-American courts, which is to
redress or prevent actual or imminently threatened injury to persons caused by
private or official violation of law.” Summers v. Earth Island Inst., 555 U.S. 488,
492 (2009). This restriction on the power of the courts “is founded in concern
about the proper – and properly limited – role of the courts in a democratic
society.’” Id. (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). Permitting a
court to decide a case where the plaintiff does not have standing would “allow[]
courts to oversee legislative and executive action” and thus “significantly alter the
allocation of power . . . away from a democratic form of government.” Id. at 493
(quotation omitted).
10
3.
Standing requires that a federal court satisfy itself that the plaintiff
has “alleged such a personal stake in the outcome of the controversy as to warrant
his invocation of federal-court jurisdiction.” Summers, 555 U.S. at 493 (internal
marks omitted).
4.
An organization has standing when: (1) at least one of its members
has or would otherwise have standing; (2) the interests at stake in the litigation
are germane to the organization’s purpose; and (3) neither the claim asserted nor
the relief requested requires an individual member’s participation in the lawsuit.
Sierra Club v. Franklin County Power of Ill., LLC, 546 F.3d 918, 924 (7th Cir.
2008). The Corps has not contested that Plaintiffs satisfy prongs (2) and (3). The
standing inquiry therefore turns on prong (1): whether Plaintiffs have presented
an individual member with standing.
5.
In order for an individual to establish that he has standing, he must
show that (1) he is under threat of suffering “injury in fact” that is concrete and
particularized; (2) the threat is actual and imminent, not conjectural or
hypothetical; (3) the threat is fairly traceable to the challenged action of the
defendant; and (4) it is likely, not just speculative, that a favorable judicial
decision will redress the injury. Sierra Club, 546 F.3d at 925. Because these
elements “are not merely pleading requirements but rather an indispensable part
of the … case, each element must be supported … with the manner and degree of
evidence required at the successive stages of the litigation.” Id. (quoting Lujan v.
Defenders of Wildlife, 504 U.S. 55, 561 (1992)).
11
6.
When the plaintiff is an environmental organization, it adequately
alleges injury in fact when it avers that its members use the affected area and are
persons for whom the aesthetic and recreational values of the area will be
lessened by the challenged activity.
Friends of the Earth, Inc. v. Laidlaw
Environmental Services, 528 U.S. 167, 183 (2000) Sierra Club v. Morton, 405
U.S. 727, 734-36 (1972). Standing is not established by “averments which state
only that one of [plaintiff]’s members uses unspecified portions of an immense
tract of territory, on some portions of which [an] activity has occurred or probably
will occur by virtue of the governmental action.” Lujan v. Nat’l Wildlife Fed’n,
497 U.S. 871, 889 (1990).
7.
In order to establish that a member has standing, an organization is
required to “submit affidavits . . . showing, through specific facts . . . that one or
more of [its] members would . . . be ‘directly’ affected” by the alleged wrongful
activity. Summers, 555 U.S. at 498 (quoting Defenders of Wildlife, 504 U.S. at
563).
The Supreme Court has held that without individual affidavits, a court
cannot assure itself that an organization’s members use the area affected by the
challenged activity or will be burdened by the challenged activity.
Id. at 499
(quotations omitted). An organization is required to identify members who have
suffered the requisite harm. Id.
8.
Plaintiffs MCE, RAW, GRHA, and MCF have not presented any live
testimony or supporting affidavits to establish their constitutional standing, and
the Court accordingly finds that they have no standing in this case.
12
9.
The Court finds that the testimony of Dr. Bullard is insufficient to
establish standing for Plaintiff NWF.
Dr. Bullard had not visited any of the
challenged sites before the Complaint was filed, only visiting the three sites the
day before the hearing. This is not enough. A plaintiff must establish standing at
the time the lawsuit is filed; he cannot establish it after the fact. Pollack v. U.S.
Dep’t of Justice, 577 F.3d 736, 743 n.2 (7th Cir. 2009) (plaintiff couldn’t
establish standing by visiting the challenged site after commencement of lawsuit);
(citing Laidlaw, 528 U.S. at 180 (stating that court considers whether a plaintiff
has standing “at the outset of the litigation”)); Perry v. Vill. of Arlington Heights,
186 F.3d 826, 830 (7th Cir. 1999) (stating that “[t]he requirements of standing
must be satisfied from the outset”).
10.
Moreover, Dr. Bullard’s testimony failed to establish that he is under
threat of imminent and irreparable injury as a result of the proposed construction
at any particular site. See Summers, 555 U.S. at 495 (court found that affidavit
did not establish constitutional standing for organization because member’s
testimony was too generalized and did not identify imminent injury at a particular
site). The mere fact that he has visited unspecified portions of the Mississippi
River as a canoeist and kayaker does not establish standing for NWF. Cf. Lujan,
497 U.S. at 889 (finding that standing could not be demonstrated merely by
offering “averments which state only that one of [the organization]’s members uses
unspecified portions of an immense tract of territory, on some portions of which
[some] activity has occurred or probably will occur by virtue of the governmental
13
action”); Pollack, 577 F.3d at 742-43 (holding that an affiant’s generalized
statements that he visited the Illinois shoreline of Lake Michigan and watched
birds in the Great Lakes watershed were too generalized to challenge activities in
North Chicago).
11.
Finally, much of Dr. Bullard’s testimony relates to a past injury. He
testified that he was concerned about the general harm from the Regulating Works
Project, as well as river training structures that are already in place.
This
testimony relates to a past injury and is therefore insufficient to establish
standing. See Summers, 555 U.S. at 495.
12.
The Court therefore finds that Plaintiffs NWF, MCE, RAW, GRHA,
and MCF have failed to establish that they have constitutional standing.
2.
Plaintiff Prairie Rivers Network has demonstrated that it has
constitutional standing.
13.
The Court finds that Plaintiff PRN has standing, based on the
testimony of its member, Ms. Nash-Mayberry.
She lives and works in a flood
plain along the Middle Mississippi River near Dogtooth Bend and Grand Tower.
Should the construction of new regulating works in those locations actually lead
to an increase in flood levels, she and her school would be directly impacted.
Accordingly, PRN has established that at least one of its members would be
directly affected by the alleged improper government conduct at issue here. See
Laidlaw, 528 U.S. at 183.
14
B.
Plaintiffs’ Motion for a Preliminary Injunction
14.
A preliminary injunction is always an “extraordinary remedy.” See
Winter v. Natural Res. Def. Council, 555 U.S. 7, 24 (2008). Plaintiffs carry the
burden and must make a compelling showing that (1) this Court is likely to rule
in their favor on the ultimate merits; (2) irreparable injury is likely – not just
possible – in the absence of an injunction; (3) the balance of equities tips in their
favor; and (4) an injunction is in the public interest. Id. at 20, 22. Plaintiffs must
show that they meet all four of these prongs. Monsanto Co. v. Geertson Seed
Farms, 561 U.S. 139, 156–57 (2010) (even in a NEPA case, “[a]n injunction
should issue only if the traditional four-factor test is satisfied”); Winter, 555 U.S.
at 21–22 (even a strong showing of likely success cannot compensate for failure to
show likely injury).
15.
No factor alone is enough to support equitable relief. Hoosier Energy
Rural Elec. Co-op. v. John Hancock Life Ins., 582 F.3d 721, 725 (7th Cir. 2009).
Even in environmental cases such as this one, “[i]t is not enough for a court
considering a request for injunctive relief to ask whether there is a good reason
why an injunction should not issue; rather, a court must determine that an
injunction should issue under the traditional four-factor test set out above.”
Monsanto, 561 U.S. at 158. There must also be a likelihood of success on the
merits, and the injunction must do more good than harm. Id.
1.
Plaintiffs are Not Likely to Succeed on the Merits.
16.
Plaintiffs allege that Defendants have violated NEPA, 42 U.S.C.
§§ 4321, et seq., a statute that requires federal agencies to consider the
15
environmental impact of any major federal actions they undertake, and to prepare
EISs for all “major Federal actions significantly affecting the quality of the human
environment.” 42 U.S.C. § 4332(2)(C); Habitat Educ. Ctr. v. U.S. Forest Serv.,
673 F.3d 518, 525 (7th Cir. 2012).
17.
Under NEPA, an agency must prepare a supplement to an EIS if
“[t]he agency makes substantial changes in the proposed action that are relevant
to environmental concerns.”
40 C.F.R. § 1502.9(c)(1)(i).
This section is
interpreted to require an SEIS “if the changed plans or circumstances will affect
the quality of the human environment in a significant manner… not already
considered by the federal agency.” Arkansas Wildlife Fed’n v. U.S. Army Corps of
Eng’rs, 431 F.3d 1096, 1102 (8th Cir. 2005) (ellipses in original) (quoting Airport
Impact Relief, Inc. v. Wykle, 192 F.3d 197, 204 (1st Cir. 1999)). “A change is
substantial if it presents a ‘seriously different picture of the environmental
impact.’” Id. (quoting S. Trenton Residents Against 29 v. Fed. Hwy. Admin., 176
F.3d 658, 663 (3d Cir. 1999). “[D]etermining whether an impact is substantial is
‘a classic example of a factual dispute the resolution of which implicates
substantial agency expertise.’” Id. (quoting Marsh, 490 U.S. at 376).
18.
An agency must also prepare an SEIS when “[t]here are significant
new circumstances or information relevant to environmental concerns and
bearing on the proposed action or its impacts.’” Wisconsin v. Weinberger, 745
F.2d 412, 417 (7th Cir. 1984) (quoting 40 C.F.R. § 1502.9(c)(1)(ii)).
The
determination of whether an SEIS is required is a matter left to the discretion of
16
the agency. Id.; see also Marsh, 490 U.S. at 376 (determination of whether SEIS
is required turns on questions of significance, and courts defer to informed
discretion of agency); Nevada v. D.O.E., 457 F.3d 78, 92 (D.C. Cir. 2006) (“The
decision whether to prepare a programmatic EIS is committed to the agency’s
discretion.”).
19.
NEPA does not specifically provide for judicial review, and so this
case falls under the standard of the Administrative Procedure Act (“APA”), 5
U.S.C. §§ 701–706. See Ind. Forest Alliance v. U.S. Forest Serv., 325 F.3d 851,
858 (7th Cir. 2003). The APA allows courts to set aside agency actions only if
they are “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with the law.” 5 U.S.C. § 706(2)(A). This standard of review “is a
narrow one,” and courts should defer to the considered judgment of an agency.
Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989) (quotation omitted).
The Court must determine “whether the decision was based on a consideration of
the relevant factors and whether there has been a clear error of judgment.” Id.
(citation omitted).
20.
Plaintiffs’ Complaint challenges two decisions made by Defendants:
(a) the decision to prepare an SEIS for only the MMR, and not the entire Upper
Mississippi River System (Doc. 2); and (b) the decision to approve new
construction under the Regulating Works Project while the SEIS is being
prepared.
Accordingly, to succeed on the merits of this case, Plaintiffs must
demonstrate that these decisions were arbitrary, capricious, an abuse of
17
discretion, or otherwise not in accordance with law. The Court finds that the
Plaintiffs are unlikely to meet this burden.
a.
The decision to prepare an SEIS for only the MMR.
21.
The Corps is currently preparing an SEIS for the Regulating Works
Project in the Middle Mississippi River, based on substantial new information
relevant to environmental concerns developed since the 1976 EIS. Plaintiffs are
seeking an order requiring the Corps to prepare an SEIS for the entire Upper
Mississippi River system (Doc. 14-1 at 6–13), but they are unlikely to succeed
because no final agency action has yet been taken on the SEIS.
22.
Under the APA, the Court can review only “final agency action.” See
Bennett v. Spear, 520 U.S. 154, 177–78 (1997). This is important, because the
agency must have the opportunity to apply its expertise in the first instance.
Norton v. S.U.W.A., 542 U.S. 55, 66-67 (2004); Highway J Citizens Grp. v.
Mineta, 349 F.3d 938, 953 (7th Cir. 2003); Cronin, 919 F.2d at 444. “The core
question is whether the agency has completed its process, and whether the result
of that process is one that will directly affect the parties.” Franklin v. Mass., 505
U.S. 788, 797 (1992); Home Builders Ass’n v. USACE, 335 F.3d 607, 614 (7th
Cir. 2003).
The Corps has not completed its process; thus, this Court lacks
jurisdiction to entertain any allegations that the SEIS will be deficient.
23.
Similarly, because no final agency action has been taken on the SEIS,
any challenges to its scope or analysis are not yet ripe.
See Abbott Labs. v.
Gardner, 387 U.S. 136, 148–49 (1967), abrogated on other grounds by Califano
v. Sanders, 430 U.S. 99, 105 (1977).
18
The ripeness doctrine prevents courts
“from entangling themselves in abstract disagreements over administrative
policies, and . . . protect[s] the agencies from judicial interference until an
administrative decision has been formalized and its effects felt in a concrete way
by the challenging parties.” Abbott Labs, 387 U.S. 136 at 148-49.
24.
Plaintiffs are also not likely to succeed on this argument because
there is no proposed action on the Upper Mississippi River system. See Kleppe v.
Sierra Club, 427 U.S. 390, 399 (1976) (no regional EIS required when action
proposed was not regional, but rather local or national in scope). The Corps’
management of the Upper Mississippi River consists of many individual actions
taken and yet to be taken by different Corps districts pursuant to five separate
EISs and different congressional authority. In this way, Plaintiffs’ challenge is not
so much an attack on a specific agency action but rather a broad, programmatic
challenge. Such an action cannot be maintained. See Nat’l Wildlife Fed’n, 497 at
891 (holding that a plaintiff “cannot seek wholesale improvement of [a] program
by court decree, rather than in the offices of the Department or the halls of
Congress, where programmatic improvements are normally made”).
25.
Even if this Court had jurisdiction to consider the merits of this
claim, it would be unlikely to interfere with the Corps’ decision. The Corps has
significant discretion over the geographic scope of its analysis. Kleppe, 427 U.S.
at 399, Old Town Neighborhood Ass’n, Inc. v. Kauffman, 333 F.3d 732, 735 (7th
Cir. 2003) (“And when the federal agency does make a proposal, decisions about
its scope must be reviewed deferentially.”).
19
Plaintiffs have not shown that the
Corps acted unreasonably in restricting its SEIS to the Middle Mississippi River
segment, particularly given that both the 1976 EIS and the congressional
authorization for the Regulating Works Project are directed exclusively at the
MMR. See generally AR MVS 1-602; 36 Stat. at 659.
26.
Finally, Plaintiffs are unlikely to succeed on a claim for failure to act,
pursuant to 5 U.S.C. § 706(1), because they have not alleged that the Corps “failed
to take a discrete agency action that it is required to take.” SUWA, 542 U.S. at 64.
The decision whether to prepare an SEIS is one uniquely committed to agency
discretion. Accordingly, it cannot give rise to a failure to act claim. See SUWA,
542 U.S. at 66 (when a statute gives the agency discretion, it is not a mandate
with sufficient clarity to support a § 706(1) action).
b.
The decision to approve new projects on the MMR while work
on the SEIS is still in progress.
27.
Plaintiffs are also unlikely to succeed in showing that Defendants
violated NEPA by deciding to move forward with the proposed new projects at
Mosenthein, Eliza Point, and Dogtooth Bend.4 Federal regulations state that while
an agency is preparing an EIS, it shall not take actions that would have an adverse
environmental impact or limit the choice of reasonable alternatives.
See 40
C.F.R. § 1506.1(a). But that does not mean that it cannot take any action at all.
28.
The same regulation explains:
(c) While work on a required program environmental
impact statement is in progress and the action is not
covered by an existing program statement, agencies shall
4 The Court concludes that the Grand Tower Project is not a final agency action, as the Corps has
not issued a final decision on this proposed project.
20
not undertake in the interim any major Federal action
covered by the program which may significantly affect
the quality of the human environment unless such
action:
1. Is justified independently of the program;
2. Is itself accompanied by an adequate environmental
impact statement; and
3. Will not prejudice the ultimate decision on the
program. Interim action prejudices the ultimate
decision on the program when it tends to determine
subsequent development or limit alternatives. 40
C.F.R. § 1506.1(c).
29.
Thus, courts have noted that “[e]ven if a particular agency proposal
requires an EIS, applicable regulations allow the agency to take at least some
action in furtherance of that proposal while the EIS is being prepared.”
Monsanto, 561 U.S. at 145; see also ONRC Action v. BLM, 150 F.3d 1132 (9th
Cir. 1998) (when considering amendment of existing resource management plan,
agency could continue to take action); Native Village of Point Hope v. Minerals
Mgt. Serv., 564 F. Supp. 2d 1077, 1085-86 (D. Alaska 2008); Sierra Club v.
Bosworth, 352 F. Supp. 2d 909, 921 (D. Minn. 2005) (agency could proceed with
action because old forest plan remained in effect until effective date of revision
and agency action would not have adverse environmental impact).
30.
The proposed new projects at issue fall outside the prohibition set
forth in 40 C.F.R. § 1506.1(c). First, they are not properly onsidered “major”
federal actions. The Corps examined whether the Regulating Works Project had
changed based on the use of different river training structure configurations and
concluded it had not. Although the Corps determined that the Regulating Works
21
Project is a major federal action, the use of different types of dikes is but a small
component of the Project. Thus, the technical changes to the Project through the
use of different regulating works do not constitute a "substantial change" sufficient
to require an SEIS. Id.; see Arkansas Wildlife Fed'n, 431 F.3d at 1103 (noting
that "the change in the Project is one of design" and did not warrant a SEIS).
31.
This Court must defer to the Corps' reasonable conclusions that the
Regulating Works Project has not changed because of technical changes to the
structures used to implement the Project. See Marsh, 490 U.S. at 376; Arkansas
Wildlife Fed'n, 431 F.3d at 1103.
The question of whether a change is so
substantial as to require supplementation "is a classic example of a factual
dispute the resolution of which implicates substantial agency expertise." Marsh,
490 U.S. at 376. Particularly given that "the NEPA process involves an almost
endless series of judgment calls," Plaintiffs are not likely to demonstrate that the
Corps acted in an arbitrary or capricious manner. See Arkansas Wildlife Fed'n,
431 F.3d at 1104 (quoting Coalition on Sensible Transp., Inc. v. Dole, 826 F.2d
60, 66 (D.C.Cir.1987)).
32.
Second, the projects are covered by an existing program statement.
Although Plaintiffs’ believe it to be “obsolete,” the 1976 EIS is still valid and in
effect, even while it is being updated. See Sierra Club, 352 F. Supp. 2d at 921
(agency could proceed with action because old forest plan remained in effect until
effective date of revision and agency action would not have adverse environmental
impact).
22
33.
Third, the Corps has determined that the proposed new construction
is not likely to “significantly affect the quality of the human environment.” 40
C.F.R. § 1506.1(c). An agency may comply with NEPA’s purpose by preparing a
shorter EA and issuing a finding of no significant impact (FONSI), “which briefly
presents the reasons why the proposed agency action will not have a significant
impact on the human environment.” Dep’t of Transp. v. Pub. Citizen, 541 U.S.
752, 757-58 (2004); Monsanto, 561 U.S. at 145; Highway J, 349 F.3d at 960.
That is precisely what the Corps did in this case.
34.
The three site-specific EAs and FONSIs are final agency actions that
may be challenged under the APA and are ripe for review. See, e.g., Sierra Club
v. U.S. Army Corps of Eng’rs, 446 F.3d 808, 816 (8th Cir. 2006); SW Williamson
Cnty. Cmty. Ass’n v. Slater, 173 F.3d 1033, 1036 (6th Cir. 1999). The Court
examines them under the APA’s arbitrary and capricious standard. See Indiana
Forest Alliance, Inc. v. U.S. Forest Serv., 325 F.3d 851, 862 (7th Cir. 2003).
35.
The EAs for each proposed new construction activity on the MMR
address new information and studies that have been done since the 1976 EIS was
completed, including the effects of river training structures on flood levels.
Appendix A in each EA summarizes the research on the effects of river training
structures on flood levels.
The Corps has analyzed this information and
explained its conclusion that, based on the research and the Corps’ own expertise
and state-of-the-art tools, the proposed river training structures will not increase
23
flood heights (AR MVS 2273-2301 (Mosenthein); MVS 3075-3103 (Eliza Point);
MVS 3895-3923 (Dogtooth Bend)).
36.
Plaintiffs disagree with the Corps’ conclusions, but it is not the
province of this Court to resolve that disagreement or to choose a side. Where, as
here, the Corps has considered the issue and explained its conclusions, it has not
acted arbitrarily, and that is as far as the Court’s inquiry can proceed. See Earth
Island Inst. v. Carlton, 626 F.3d 462, 473 (9th Cir. 2010) (noting that “experts in
every scientific field routinely disagree” but “such a ‘battle of the experts’” does not
establish a NEPA violation); Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556
F.3d 177, 201 (4th Cir. 2009) (holding that the court cannot “simply substitute
the judgment of plaintiff’s experts for that of the agency’s experts” because the
court must defer to agency choices and methodology); cf. Marsh, 490 U.S. at 378
(“When specialists express conflicting views, an agency must have discretion to
rely on the reasonable opinions of its own qualified experts even if, as an original
matter, a court might find contrary views more persuasive.”).
37.
Plaintiffs argue that the Corps has failed to analyze the specific river
training structures, including bendway weirs and chevrons, but this argument
does not hold up. In the EAs, the Corps examined the specific structures being
proposed. See, e.g., AR MVS 3859-60, 3869, 3877–78, 3889-90. In addition, the
1976 EIS discussed that river training structures could have various designs.
And the Corps’ examination of the 1976 EIS (by both the PDT and PCXIN)
24
determined that the technical changes in structures were not a substantial change
from the 1976 EIS.
38.
By issuing a FONSI for each of the proposed projects, the Corps
determined that the projects would not have a significant impact on the
environment. Thus, the Corps complied with the regulations, and Plaintiffs are
unlikely to demonstrate that the Corps acted arbitrarily, capriciously, or contrary
to law by deciding to move forward while the SEIS remains unfinished. See 40
C.F.R. § 1506.1(a); see also N. Cheyenne Tribe v. Norton, 503 F.3d 836, 842–44
& n.30 (9th Cir. 2007) (rejecting argument that 1506.1(c) requires injunction
limiting all coal bed methane development activity during pendency of EIS);
Native Village of Point Hope, 564 F. Supp. 2d at 1084 (finding it consistent to
issue EAs for several projects in question, “notwithstanding the determination to
conduct an EIS”); Intertribal Bison Co-op v. Babbitt, 25 F. Supp. 2d 1135, 1139
(D. Mont. 1998) (when agency issued FONSI for an interim plan while a longrange plan was being prepared, the interim plan was not major federal action
significantly affecting the quality of the human environment and 40 C.F.R.
§ 1506.1 did not apply); Fund for Animals v. Lujan, 794 F. Supp. 1015, 1024–25
(D. Mont. 1991) (action may proceed without EIS if not anticipated to have
adverse environmental impact or limit the choice of reasonable alternatives),
aff’d, 962 F.2d 1391 (9th Cir. 1992).
39.
Nor did the Corps violate NEPA by tiering its EAs to the 1976 EIS.
Federal regulations encourage tiering in order to streamline and focus the review
25
process on the actual issues being decided. 40 C.F.R. §§ 1502.20, 1508.28.
Tiering also shows that the individual actions were taken as part of the larger
Project to obtain and maintain the navigation channel.
40.
Tiering was appropriate here for three reasons. First, the EAs are
only minimally tiered to the original EIS. For example, they note that some of the
alternatives that were considered but determined to be unreasonable, such as
ceasing all activity or building locks and dams, were also considered and rejected
in the 1976 EIS (AR MVS 2241 (Mosenthein); MVS 3042 (Eliza Point); MVS 3859
(Dogtooth Bend)).
41.
Second, the EIS still contains valid information about the Project to
maintain the navigation channel in the MMR, including a history of the Project, a
discussion of the Project’s purpose, and a detailed description of the Project’s
authorization, all of which were appropriate for incorporation into the EAs.
42.
Third, tiering was appropriate because the Corps fully considered the
new information and circumstances in the EAs. The EAs list the significant new
circumstances and information on the potential impacts of the Regulating Works
Project relevant to the EAs, and explain where the discussion of that new
information can be found in the EA (AR MVS 2235-36 (Mosenthein); MVS 303738 (Eliza Point); MVS 3853-54 (Dogtooth Bend)). The EAs also have two twentypage appendices dedicated to reviewing the scientific studies done since the 1976
EIS (see AR MVS 2273-2301; 2320-2346 (Mosenthein); MVS 3075-3103; 31183143 (Eliza Point); MVS 3895-3923; 3940-3965 (Dogtooth Bend)).
26
The Corps
specifically responded to Plaintiffs’ and Dr. Pinter’s comments (AR MVS 23562465 (Mosenthein); MVS 3153-3198 (Eliza Point); MVS 3975-4062 (Dogtooth
Bend)).
43.
Plaintiffs do not point to any information that the EAs allegedly failed
to address; rather, they argue simply that the information should be addressed in
an EIS. This Court will not elevate form over substance. Cf. Highway J, 349
F.3d at 958-59. The Corps met NEPA’s purposes of informed decision-making
and public involvement by publishing draft EAs, soliciting and responding to
public comment, holding a public hearing for the Dogtooth site, and analyzing all
new information in an EA. See id.; see also Balt. Gas & Elec. v. Natural Res.
Def. Council, 462 U.S. 87, 97 (1983).
44.
Plaintiffs’ are unlikely to establish that the Corps’ decision to tier the
EAs to the 1976 EIS violated NEPA. See Defs. of Wildlife v. B.O.E.M., 684 F.3d
1242 (11th Cir. 2012) (upholding EA tiered to EIS & SEIS that needed updating);
Theodore Roosevelt Conservation P’ship v. Salazar, 616 F.3d 497, 512 (D.C.
Cir. 2010) (noting that “courts have required [EAs] to analyze certain impacts for
the first time when the broader analysis did not address the impact in question at
all” and that “NEPA does not limit tiering to analyses still on the scientific cutting
edge”); Ark. Wildlife Fed’n v. USACE, 431 F.3d 1096, 1101-02 (8th Cir. 2005)
(upholding a tiered EA that “provided an updated and adequate analysis of any
new environmental impacts”); La. Crawfish Producers Ass’n-West v. Rowan, 463
27
F.3d 352, 358 (5th Cir. 2006) (holding that an EA can tier to an “out-of-date
EIS”).
2.
Plaintiffs Have Not Demonstrated Imminent Irreparable Harm.
45.
Plaintiffs have not demonstrated that imminent irreparable harm is
likely to occur before the Court may rule on the merits of the case. To constitute
irreparable harm, an injury must be “certain, great, actual and not theoretical,”
“not harm that is merely serious or substantial.” Heideman v. Salt Lake City,
348 F.3d 1182, 1189 (10th Cir. 2003) (interior quotations and citations omitted);
see also Int’l Union, Allied Indus. Workers of Am., AFL-CIO v. Local Union No.
589, 693 F.2d 666, 674 (7th Cir. 1982).
46.
Plaintiffs’ asserted irreparable injury is speculative because they
cannot show that these particular structures will have any measurable effect on
flood heights. Dr. Pinter’s declaration does not address the likely impacts of the
three specific EAs with sufficient specificity to show irreparable harm.
Conclusory statements are insufficient to demonstrate likelihood of irreparable
harm. Herb Street Enterprises, LLC v. Florida Entertainment Mgmt., Inc., 736
F.3d 1239, 1250 (9th Cir. 2013).
47.
There are hundreds of river training structures in the MMR.
Plaintiffs themselves acknowledge that the Corps added hundreds of new
structures in the past three decades, and 150 bendway weirs between 1990 and
2000 alone. Here, between the three projects, the Corps will add a total of twelve
more bendway weirs and three dikes. Plaintiffs have not demonstrated that this
small number of additional river training structures will likely cause irreparable
28
harm. Plaintiffs’ demonstration of irreparable harm is too speculative to justify
the extraordinary relief of a preliminary injunction.
a.
There is no demonstrated increase in flooding risk.
48.
The Court finds that Plaintiffs have not demonstrated that the three
new projects, the Grand Tower Project, or any other future river training
structure will increase flooding risk.
49.
The Corps has continually and extensively analyzed the physical
effects of river training structures and reasonably concluded that they do not
impact flood levels (AR MVS 2273-2301 (Mosenthein); MVS 3075-3103 (Eliza
Point); MVS 3895-3923 (Dogtooth Bend); see also Brauer Decl. at ¶¶ 8-24). The
record shows that the Corps has actively studied the impact of river training
structures on water surfaces since the 1930s, taking into account any new
information or research presented on the issues. The Corps has worked with the
US Geological Survey (“USGS”) and external, independent technical experts and
researchers in academia including the University of Missouri-Rolla, University of
Iowa, Colorado State University, and the University of Illinois using state-of-the-art
tools. The Corps has also reviewed the most recent data available regarding the
impact of river training structures on flood heights, including recent analysis
based on Dr. Pinter’s research originally presented in 2001 (AR MVS 2252
(Mosenthein); AR MVS 3053 (Eliza Point); AR MVS 3873 (Dogtooth Bend); Brauer
Decl. ¶ 8). As part of the EA process, the Corps solicited comments from the
public, and both NWF and Dr. Pinter commented on the proposed projects (AR
MVS 2356-2465 (Mosenthein); MVS 3153-3198 (Eliza Point); MVS 3975-4062
29
(Dogtooth Bend); Brauer Decl. ¶¶ 9-11).
The Corps carefully considered and
responded to those comments (AR MVS 2273-2301, 2356-2465 (Mosenthein);
MVS 3075-3103, 3153-3198 (Eliza Point); MVS 3895-3923, 3975-4062 (Dogtooth
Bend); Brauer Decl. ¶¶ 9-17).
50.
The record shows that the initial research claims that river training
structures increase flood levels began in the mid-1970s with Dr. Belt from St.
Louis University and Drs. Stevens, Simons, and Schumm from Colorado State
University (AR MVS 2282 (Mosenthein); MVS 3084 (Eliza Point); MVS 3904
(Dogtooth Bend)). A majority of the most recent research on this issue comes
from Southern Illinois University-Carbondale, including Drs. Pinter, Remo,
Jemberie, and Huthoff (AR MVS 2294 (Mosenthein); MVS 3096 (Eliza Point);
MVS 3916 (Dogtooth Bend)). The Corps believes that both the early and recent
research concluding that river training structures increase flood heights all
contain faulty data and assumptions, leading the Corps, in conjunction with the
USGS and other independent researchers, to disagree with that conclusion. See
generally AR MVS 2273-2301 (Mosenthein); MVS 3075-3103 (Eliza Point); MVS
3895-3923 (Dogtooth Bend); Brauer Decl.). The Corps’ conclusions in analyzing
all of the available research and data over the years on the issue have not
changed.
51.
The Court finds that Plaintiffs have not shown conclusively that flood
levels have increased as a result of river training structures and that the
30
structures have a detrimental impact on public safety. Brauer Decl. ¶ 9. The
Court finds that Plaintiffs cannot show imminent harm.
52.
The Court has reviewed the declaration of Dr. Pinter filed by
Plaintiffs in support of their request for injunctive relief and has reviewed the
declaration of Edward Brauer filed by the Corps in support of its opposition. The
Court finds that Dr. Pinter’s statements do not show that the risk of flooding from
the three potential work sites at issue is actual or imminent.
53.
In its record and declaration, the Corps points out that the source
data and methodology used by Dr. Pinter contains major errors that put the
conclusions into question.
See AR MVS 2273-2301 (Mosenthein); MVS 3075-
3103 (Eliza Point); MVS 3895-3923 (Dogtooth Bend); Brauer Decl. ¶¶ 16-24. One
such example is the fact that Dr. Pinter relies on early discharge measurements
(or volume of water that passes a specific location over time) data collected before
the USGS implemented standard instrumentation and procedures in 1933, and
this data has shown to be inaccurate by not only the Corps but the USGS and
other independent researchers.
Brauer Decl. ¶ 18.
As another example, Dr.
Pinter also relies upon studies conducted in a rigid, fixed bed plume, the
limitations of which have been acknowledged by the authors of the studies: “The
fixed bed scenario is not a reasonable description of a natural river channel with a
moving sediment bottom and is expected to yield a conservative result for the
backwater effect relative to that likely to be experienced in a non-erodible
boundary channel.” Id. ¶¶ 12, 23. The MMR is not a fixed bed. The river bed is
31
ever-changing, and the purpose of river training structures is to make the river
bed deeper. A fixed bed model cannot replicate the changes that occur to the
natural river as a result of the construction of river training structures. AR MVS
2291 (Mosenthein); MVS 3093 (Eliza Point); MVS 3913 (Dogtooth Bend).
Dr.
Pinter uses daily discharge data, which is based upon estimates and is not
measured or observed. This usage creates data errors because the data lacks the
natural variability found in a variable channel, such as the MMR. Brauer Decl. ¶
19.
Dr. Pinter also discusses many different rivers and river reaches and
compares data between them without acknowledging the differences between
them. Id. at ¶ 24(a); Pinter Decl. ¶¶ 16, 18, 19. The MMR has a different flow and
sediment load and hence different sediment management practices than other
reaches of the Mississippi River, much less other rivers. Brauer Decl. ¶ 24(a).
The Court finds that the Corps’ rejection of Dr. Pinter’s examples and data is not
arbitrary or capricious.
54.
The Court finds that Plaintiffs have not shown that they will suffer
imminent and immediate harm from any alleged environmental degradation that
will occur because of the proposed projects. The record shows that the Corps
adequately examined the details on the historic and existing condition of
resources in the area potentially affected by the project-related activities, noting
that “[t]o the extent possible under existing authorities, environmental laws,
regulations, and policies, the District considers the environmental consequences
of its activities as it constructs and operates the Project and acts accordingly.” AR
32
MVS 2235 (Mosenthein); MVS 3037 (Eliza Point); MVS 3853 (Dogtooth Bend).
The Corps undertook a full examination of the proposed projects’ impacts and
determined that they would minimize negative impacts to the environmental
features within reach and would maintain existing physical conditions. AR MVS
2244-2251 (Mosenthein); MVS 3045-3052 (Eliza Point); MVS 3862-3872
(Dogtooth Bend).
In fact, the record shows that the use of innovative river
training structures, like those proposed to be built, were developed to provide
habitat diversity and associated environmental benefits to aquatic organisms in
the MMR. AR MVS 2252-2265 (Mosenthein); MVS 3053-3067 (Eliza Point); MVS
3873-3887 (Dogtooth Bend).
55.
The Court further finds that Plaintiffs do not demonstrate any
irreparable harm that is likely to occur before the merits of the case will be
decided. Plaintiffs focus on the alleged general danger from the Regulating Works
Project and structures that are already in place. Plaintiffs also rely heavily on
alleged harm that may occur from construction of the proposed Grand Tower
project. But as the record shows, the Corps has not completed its analysis of this
project nor has it issued an EA or planned for any construction. The Court finds
that harm, therefore, is not imminent.
See Michigan v. U.S. Army Corps of
Eng’rs, 667 F.3d 765, 788 (7th Cir. 2011) (stating that for preliminary relief to be
granted, the irreparable harm must also be likely). The Court finds that Plaintiffs
have not shown that imminent harm will occur from the Corps awarding the
contracts or even from construction in the three proposed areas.
33
56.
The Court finds that Plaintiffs have failed to show that irreparable
harm is likely to occur from a potential increase of flood height due to the
proposed projects before this Court can decide the merits of the case.
b.
Plaintiffs’ alleged procedural injury is insufficient to justify a
preliminary injunction.
57.
The Court finds that Plaintiffs have not shown an irreparable injury
sufficient to support a preliminary injunction from the Corps’ alleged NEPA
violation. “Merely establishing a procedural violation of NEPA does not compel
the issuance of a preliminary injunction.” Fund for Animals v. Lujan, 962 F.2d
1391, 1400 (9th Cir. 1992). This is because an alleged NEPA violation does not
create a presumption of irreparable injury. See Amoco Prod. v. Vill. of Gambell,
480 U.S. 531, 544-45 (1987); see also Monsanto, 130 S. Ct. at 2757 (holding that
even in NEPA cases, plaintiffs must meet traditional four-factor test for an
injunction to issue). Instead, Plaintiffs must show actual imminent irreparable
injury. Winter, 555 U.S. at 22.
58.
“The harm with which courts must be concerned in NEPA cases is
not, strictly speaking, harms to the environment, but rather the failure of
decision-makers to take environmental factors into account in the way that NEPA
mandates.” Jones v. D.C. Redev. Land Agency, 499 F.2d 502, 512 (D.C. Cir.
1974). The Court finds that the Corps conducted an informed analysis of the
information available to it and provided more than adequate information to
inform the public of its proposed projects.
34
59.
The Court finds that Plaintiffs have not shown that they will be
irreparably harmed by the alleged NEPA violation. Plaintiffs, as the complaining
party, must show that they will be irreparably harmed by an alleged NEPA
violation and not just the public. Lujan, 497 U.S. at 882-83. Plaintiffs allege that
the Corps’ actions “will irreparably harm the public by depriving them of
information and analyses essential to an informed decision” (Doc. 14-1 at 17).
This is insufficient to establish irreparable harm. See Lujan, 497 U.S. at 882-83.
60.
Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008), is
instructive. In that case, the Supreme Court reversed the grant of a preliminary
injunction, noting that the activity being performed was not a new activity but had
been ongoing for the last 40 years: “Part of the harm NEPA attempts to prevent in
requiring an EIS is that, without one, there may be little if any information about
prospective environmental harms and potential mitigating measures.” Id. at 23.
The Court noted that the Navy “took a ‘hard look at environmental consequences’
. . . as evidenced by the issuance of a detailed, 293-page EA.” Id. As in Winter,
the work that the Corps is doing is not new; it is part of its ongoing Regulating
Works Project.
61.
Weinberger,
The Seventh Circuit also addressed this issue in Wisconsin v.
where
the
court
noted
that
although
there
is
a
risk
of
predetermination by an agency when a project proceeds before the NEPA process
is complete, that risk is lessened when the project is one that is ongoing. 745 F.2d
at 427. The court also noted in that particular case the commitment entailed by
35
the construction effort was relatively small and that the President, Congress, and
the Court “have the power to bring the Navy back in line.” Id. So too here. The
work the Corps intends to do is minimal in light of the scope of the Regulating
Works Project, which has been ongoing since the 1830s.
62.
The Corps has taken a hard look at the environmental consequences
of construction of new river training structures, including new information and
circumstances since 1976, and concluded that there is not a significant impact to
the environment that has not been avoided and minimized through the design of
the structures. AR MVS 3853-54, 3887-88, 3893 (Mosenthein); AR MVS 2265-66,
2271 (Eliza Point); AR MVS 3067-68, 3073 (Dogtooth Bend); see River Road
Alliance v. U.S. Army Corps of Eng’rs, 764 F.2d 445, 451 (7th Cir. 1985) (“The
Corps also has a fund of knowledge and experience regarding the Mississippi
River that judges of a federal court of appeals cannot match”). Accordingly, the
Court finds that Plaintiffs have failed to meet their burden of demonstrating that
irreparable injury will occur.
3.
The balance of harms favors the Corps, and an injunction
would be contrary to the public interest.
63.
Even if the Plaintiffs could demonstrate irreparable harm, the Court
finds that the balance of harms favors not issuing an injunction. This Court must
determine “whether the balance of harms weighs in favor of the moving party or
whether the nonmoving party or public interest will be harmed sufficiently that
the injunction should be denied.” Christian Legal Soc’y v. Walker, 453 F.3d 853,
859 (7th Cir. 2006); Wisconsin, 745 F.2d at 424 (reversing an injunction entered
36
without balancing of harms). If the injunction is contrary to the public interest,
the Court may deny an injunction even where irreparable injury exists. Winter,
555 U.S. at 16; Amoco, 480 U.S. at 545; Weinberger v. Romero-Barcelo, 456 U.S.
305, 312 (1982).
64.
Here, any harm to Plaintiffs is outweighed by the harm to the Corps
and the public from preventing construction of any new river training structures
in the Upper Mississippi River.
First, the Court finds that an injunction
preventing the Corps from constructing river training structures until this Court
issues a decision on the merits or an SEIS is completed, would significantly
impede the Corps’ ability to maintain the congressionally-mandated navigation
channel and its associated public economic benefits. Feldmann Decl., ¶ 17; AR
MVS 2244-2265 (Mosenthein); MVS 3045-3067 (Eliza Point); MVS 3862-3887
(Dogtooth Bend).
The record shows that the MMR is a critically important
navigation corridor that provides for movement of a wide variety of commodities
of local, national, and international importance. From 2003 to 2011, the MMR
saw an average of 106 million tons shipped by barge. See, e.g., AR MVS 3870-71.
Moreover, the record also shows that Congress has specifically adopted the Corps’
plan to maintain the MMR navigation channel through regulating works, with
dredging only when necessary.
65.
The record shows that if the Corps is enjoined from constructing
river training structures, it will have to rely on expensive dredging to maintain the
navigation channel. AR MVS 4053 (“It is unclear whether or not dredging alone
37
would suffice to maintain a safe and dependable navigation channel . . . .”);
Feldmann Decl. ¶ 18.
Dredging costs approximately $470,000 a year for the
Dogtooth Bend area (AR MVS 3871), $185,000 a year for the Eliza Point area (AR
MVS 3051, 3059), and $650,000 a year for the Mosenthein area (AR MVS 2249).
Id. at ¶ 20. This is a significant expense to the public fisc. Moreover, the Corps
has a number of O&M activities that it is simply unable to fund.
The money
currently being spent on dredging could be allocated to other uses if the river
training structures are constructed. Feldmann Decl. ¶ 16. The Court finds that
this is significant harm to the Corps.
66.
The record shows that the public as a whole also benefits from the
Regulating Works Project. Particularly in low water years, the Regulating Works
Project has had a significant impact.
For example, the Corps recorded a
significant decrease in accidents within the navigation channel when comparing
two low-water years, 1988 and 2012. AR MVS 4053. The Corps was also able to
maintain the navigation channel open with 50% less dredging in 2012 than in
1988 because of the installation and maintenance of Regulating Works Projects
even though water levels were lower for a longer period of time in 2012 than in
1988.
Id.; Feldmann Decl. ¶ 18.
The benefit to cost ratio for the Regulating
Works Project construction completion is 18 to 1, which means that for every
dollar the government spends on this Project, the Nation realizes estimated
benefits of eighteen dollars to the national economy. Feldmann Decl. ¶ 17. This
is one of the most valuable projects in the nation in form of returns of investment.
38
Id. The Court finds that an injunction would prevent the Corps and the public
from reaping the benefits of the Regulating Works Project and would thus impose
harm on the public.
67.
The record also shows that two of the site-specific projects are being
pursued in part due to safety factors. The Eliza Point area, in particular, has high
accident rates relative to other nearby reaches (5.4 per year v. less than 1 per
year), because certain water levels cause high rates of collision with the U.S.
Route 60/62 Bridge. See AR MVS 3044, 3051, and 3059. If the project were
delayed, “the safety of the navigation channel would continue to be an issue going
forward with high accident rates at the U.S. Route 60/62 Bridge.” AR MVS 3059.
In the Dogtooth Bend area, as well, there were nine groundings and one collision
between 2000 and 2010. AR MVS 4053. The Corps expects that the proposed
river training structure will decrease accidents.
Id.
“In exercising [its] sound
discretion, [the Court] should pay particular regard for public consequences in
employing the extraordinary remedy of injunction.” Weinberger, 456 U.S. at 312;
see also Salazar v. Buono, 130 S. Ct. 1802, 1816 (2010) (“[A] court should be
particularly cautious when contemplating [injunctive] relief that implicates public
interests.”). Mindful of the public consequence of Plaintiffs’ requested relief, the
Court finds that an injunction would put public safety at risk.
68.
The Court finds that the Corps would incur other expenses if an
injunction were issued. The record shows that the Corps awarded two contracts:
one for the Dogtooth Bend/Eliza Point areas and one for the Mosenthein area.
39
Based on the Corps’ previous experience with the eligible and capable pool of
contractors to complete this work in the MMR, if the Corps’ construction
contracts are delayed, some contractors may decide to seek work elsewhere.
Feldmen Decl. ¶ 13.
As a result, the Corps may incur difficulty in obtaining
contractors with sufficient capacity and expertise to execute the navigation
mission in the St. Louis District, which could increase the price to the
government. Id. Longer delays may also lead to greater impacts and expense
because the Corps may have to re-evaluate certain items based on the overall
dynamics and complexity of managing the MMR flow and associated sediment.
Id. ¶ 14. The Court finds that all of these costs not only injure the Corps, but also
the public.
69.
The record shows that the new projects maintain a safe and
navigable channel, as congressionally-authorized, and prevent impacts to the
navigation industry and the consumer.
The Court therefore finds that a
preliminary injunction would delay all of those benefits and not serve the public
interest.
40
IV.
70.
CONCLUSION
In conclusion, the Court DENIES Plaintiffs’ motion for a preliminary
injunction (Doc. 14).
IT IS SO ORDERED.
Signed this 25th day of November, 2014.
David R. Herndon
2014.11.25
10:12:35 -06'00'
United States District Judge
41
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