United States Court of Appeals for the Fifth Circuit October 12, 2023
Case No. 22-30608
Plaintiffs: Loretto O’Reilly, Jr., Healthy Gulf, the Coalition for Responsible Zoning and the Sierra Club Delta Chapter vs.
Defendants: All State Financial Company, St. Tammany Parish Government, United States Army Corps of Engineers; Scott A. Spellmon, Lieutenant General
A MAJOR VICTORY FOR THE ENVIRONMENT!
The Tulane Environmental Law Clinic recently won an appeal for co-plaintiffs Loretto O’Reilly, Jr., Healthy Gulf, the Coalition for Responsible Zoning and the Sierra Club Delta Chapter. that will force the US Army Corps of Engineers (USACE) to do a much more thorough investigation and report when they perform an Environmental Impact Statement (EIS) or Environmental Assessment (EA).
This was a lawsuit specific to the Northshore (St. Tammany Parish), and ongoing devastating development being done in low areas that has caused major flooding in nearby areas. However, the gist of the lawsuit is that the EIS that was done for this property was so pitiful that it constituted a rubber-stamp of the developers plans, totally ignoring the realities of the situation.
The Opinion states that the USACE is not complying with the dictates of NEPA in considering "the potential environmental impacts of a proposed action," and that their study must include the "direct, indirect, and cumulative effects of the action." The Court even pointed out that "the use of checkboxes without any comment or analysis is even less thorough and does not meet the level of scrutiny required by NEPA."
We asked the Tulane Environmental Law Clinic, the attorneys who represented us, if they thought that this case can be used as precedent for other EIS/EA determinations from the USACE for any project they are required to perform a study for, not just wetlands, but any determination of the feasibility and need for an environmental process. We also asked if this Opinion can be projected to other agencies when an environmental determination is needed.
Their answer: "Yes, I think all of what you suggest is valid. The decision is primarily a NEPA decision, and so can be used to argue for better EAs/EISs in any Corps decision that is subject to NEPA. For that matter, it would be persuasive precedent that any federal (or even state) agency subject to NEPA should pay attention to, at least in the Fifth Circuit. So, the USDOT, Federal Highway Administration, Dept. of the Interior, etc."
Considering this, please notify any attorney that you work with on such issues (regarding NEPA EIS/EA determinations) that this Opinion exists! We need to keep the USACE on their toes. If they think that we aren't watching they are likely to fall back on the miserable standard that they have used in the past.
Here's the link to the Opinion:
https://www.ca5.uscourts.gov/
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