Spiller v. White , 352 F.3d 235 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
December 12, 2003
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 02-50956
_____________________
ETHEL SPILLER; ET AL.,
Plaintiffs,
MARIAN COLLINS; BARTON SPRINGS/EDWARDS
AQUIFER CONSERVATION DISTRICT;
DAVID ROBERTSON,
Plaintiffs - Appellants,
CITY OF AUSTIN,
Intervenor Plaintiff - Appellant,
versus
THOMAS E. WHITE, Etc.; ET AL.,
Defendants,
THOMAS E. WHITE, in his official capacity
as Acting Secretary of the Department of
the Army; NORMAN Y. MINETA, SECRETARY,
DEPARTMENT OF TRANSPORTATION; CHRISTINE
T. WHITMAN, ADMINISTRATOR, UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY; UNITED
STATES OF AMERICA,
Defendants - Appellees,
LONGHORN PARTNERS PIPELINE LP,
Defendant - Appellee.
__________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________
Before JOLLY, SMITH, and EMILIO M. GARZA, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Before this court is the joint decision of two government
agencies not to conduct a full-scale environmental impact study of
the environmental effects of a proposal to use a pre-existing
pipeline to transport gasoline and other petroleum products across
the state of Texas. The government agencies did perform an initial
environmental assessment but declined to engage in any further
studies after concluding that the environmental impact of the
proposed use of the pipeline would not be significant. The
petitioners consist of a variety of Texas cities and governmental
entities strongly opposed to the proposed use of this particular
pipeline. They urged the district court -- and they now urge this
court -- to order the government agencies to proceed with a full-
fledged environmental impact study, contending that the agencies’
finding of no significant environmental impact was arbitrary and
capricious and contrary to law. The district court upheld the
conclusion of the government agencies. We affirm.
I. Background
A. Statutory Background
This case arises under the network of the National
Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321-4370d,
“a statute drafted to ensure that federal agencies ‘carefully
consider detailed information concerning significant environmental
impacts,’ and at the same time ‘guarantee that the relevant
2
information will be made available to the larger audience that may
also play a role in both the decisionmaking process and the
implementation of that decision.’” Sabine River Authority v. U.S.
Dept. of Interior, 951 F.2d 669, 676 (5th Cir. 1993) (quoting
Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989)).
In essence, the NEPA framework requires federal agencies to prepare
a detailed Environmental Impact Statement (“EIS”) for all “major
federal actions significantly [affecting] the quality of the human
environment.” 42 U.S.C. § 4332(C).
The threshold determination of whether the effect of the
proposed action is sufficiently "significant" to necessitate the
production of an EIS is made by the preparation of an Environmental
Assessment (“EA”). Sabine River, 951 F.2d at 677. The EA is a
"concise" document that "briefly" discusses the relevant issues and
either reaches a conclusion that preparation of an EIS is necessary
or concludes with a "Finding of No Significant Impact" ("FONSI").
Id. An EA is conducted to “provide sufficient evidence and
analysis for determining whether to prepare an [EIS].” 40 C.F.R. §
1508.9(a)(1). “The EA is a rough-cut, low-budget environmental
impact statement designed to show whether a full-fledged
environmental impact statement -- which is very costly and time-
consuming to prepare and has been the kiss of death to many a
federal project -- is necessary.” Sabine River, 951 F.2d at 677
(internal quotations and citations removed). Thus, the ultimate
purpose of the EA is to lead to one of two findings: “either that
3
the project requires the preparation of an EIS to detail its
environmental impact, or that the project will have no significant
impact . . . necessitating no further study of the environmental
consequences which would ordinarily be explored through an EIS.”
Id. If the former is found, then the agency must proceed with a
full blown EIS; if the latter is found, the agency issues a FONSI
and has no further obligations under NEPA. Id.
Notably, the NEPA statutory framework provides no substantive
guarantees; it prescribes adherence to a particular process, not
the production of a particular result. Robertson, 490 U.S. at 350.
NEPA “is a procedural statute that demands that the decision to go
forward with a federal project which significantly affects the
environment be an environmentally conscious one.” Sabine River,
951 F.2d at 676. The statute “does not command the agency to favor
an environmentally preferable course of action, only that it make
its decision to proceed with the action after taking a ‘hard look
at environmental consequences.’” Id. (quoting Robertson, 490 U.S.
at 350). Indeed, “NEPA does not prohibit the undertaking of
federal projects patently destructive of the environment; it simply
mandates that the agency gather, study, and disseminate information
concerning the projects' environmental consequences.” Id. Thus,
while “[o]ther statutes may impose substantive environmental
obligations on federal agencies, . . . NEPA merely prohibits
uninformed -- rather than unwise -- agency action." Id.4
B. Factual and Procedural History
This case concerns a pipeline that runs across the state of
Texas between Houston and El Paso. Along its way, the pipeline
passes through the City of Austin and across several rivers,
streams and wetlands. In addition, it lies atop several aquifers
and aquifer recharge zones. Exxon Pipeline Company originally
constructed the pipeline between 1949 and 1950 and used it to
transport crude oil until 1995. In 1997, Exxon sold the pipeline
to Longhorn Partners Pipeline, L.P. (“Longhorn”), a Delaware
limited liability partnership headquartered in Dallas, Texas.
Longhorn purchased the pipeline intending to use it to transport
gasoline and other petroleum products from Gulf Coast refineries to
El Paso and then, perhaps, on to other states. The pipeline will
eventually move approximately 225,000 barrels of gasoline per day
across its lines.
On April 22, 1998, Mariane Collins, the Barton Springs-Edwards
Aquifer Conservation District, and David Robertson filed a
challenge to the proposed pipeline under NEPA.1 In their original
complaint, the plaintiffs sought injunctive relief, claiming that
1
The Collins plaintiffs all claim to be potentially affected
by the proposed use of the pipeline. Marian Collins is a rancher
in Kimble County, Texas and claims she is totally dependent on
water drawn from the Edwards-Trinity Plateau Aquifer which is
allegedly threatened by this pipeline. David Robertson lives in
Hayes County and claims to rely on well-water drawn from this same
aquifer. The Barton Springs-Edwards Aquifer Conservation District
is a political subdivision charged with the protection of the
Barton Springs segment of the Edwards Aquifer.
5
NEPA obligated the federal government to perform a full-fledged
review of the environmental impact of the proposed use of the
Longhorn Pipeline. The suit was brought against Longhorn, the
United States, the United States Department of Transportation
(“DOT”), the Department of the Army, and the Environmental
Protection Agency (“EPA”). Shortly thereafter, the City of Austin
was allowed to intervene as the pipeline itself runs through the
city.
After some initial negotiations, Longhorn and the government
defendants entered into a settlement stipulation with the Collins
plaintiffs and the City of Austin (collectively referred to
hereafter as “the Collins plaintiffs”). Under this settlement, the
EPA and the DOT (hereafter referred to as the “Lead Agencies”)
agreed to prepare an EA of the pipeline. The parties agreed that
this EA would culminate in a FONSI or a notice of intent to prepare
an EIS. Upon acceptance of the settlement stipulation, the
district court issued an Agreed Order enjoining Longhorn from
placing petroleum products in the pipeline until thirty days after
the EA had been completed. The Agreed Order also specified that if
the Lead Agencies issued a FONSI, the Collins plaintiffs could
apply to the court to extend the injunction on the basis that the
FONSI was arbitrary and capricious or otherwise in violation of the
law under the Administrative Procedures Act (“APA”), 5 U.S.C. §
706.
6
In accordance with the settlement stipulation, the Lead
Agencies prepared an EA. On October 28, 1999, the Lead Agencies
issued the draft EA and a preliminary FONSI for public review and
comment (in accordance with 40 C.F.R. § 1506.6). The preliminary
FOSNI was a so-called “mitigated FONSI” which means that its
issuance was predicated on Longhorn’s engaging or agreeing to
engage in certain mitigation measures. These measures were
designed to address the potentially significant environmental
impacts of the pipeline and reduce the risks of them occurring to
a level where they were deemed insignificant by the Lead Agencies.
The Lead Agencies then held public hearings on the draft EA and the
preliminary FONSI in Austin, Houston, Fredricksburg, Bastrop and El
Paso and distributed hundreds of copies of the EA and FONSI in
counties along the pipeline. Following these hearings, the
submission of several thousand written comments on them, and after
further deliberation, on November 3, 2000, the EPA and DOT issued
a FONSI along with the final EA.
On February 5, 2001, the District Court granted the Collins
plaintiffs leave to amend their initial complaints. In their
amended complaint, the Collins plaintiffs contended that (1) the
Lead Agencies’ decision to issue a FONSI instead of preparing an
EIS was contrary to NEPA and was arbitrary and capricious in
violation of the APA, and (2) the Lead Agencies and Longhorn
breached the settlement agreement. In response, Longhorn and the
7
Lead Agencies claimed that the decision to issue a FONSI was not
arbitrary and capricious and that they had complied with the
settlement agreement. All parties filed summary judgment motions
on June 10, 2002.
On July 19, 2002, the district court granted summary judgment
in favor of Longhorn and the Lead Agencies. It found that the Lead
Agencies’ decision to issue a FONSI and not prepare an EIS was not
arbitrary and capricious nor was it in any other way unlawful or in
violation of NEPA. Specifically, it found that the Lead Agencies
had taken the requisite “hard look” at the environmental impact of
the Longhorn Pipeline and had reasonably determined that the impact
would not be significant. In addition, it found that Longhorn had
not breached the settlement agreement.
On August 20, 2002, the Collins plaintiffs filed a timely
notice of appeal to this Court. In this appeal, the Collins
plaintiffs take issue with the district court’s finding that the
Lead Agencies’ decision to issue a FONSI and not to prepare an EIS
was not arbitrary and capricious or otherwise in violation of the
law. They urge this Court to reverse this finding, remanding with
instructions that the district court remand the proceeding to the
Lead Agencies for preparation of an EIS, or alternatively, for
8
reconsideration of the FONSI in response to a judicial
determination that it was issued in violation of NEPA.2
II. Standard of Review
Because NEPA dictates no particular substantive result, an
agency decision not to conduct an EIS based on a FONSI is
reviewable only on procedural grounds. A party objecting to such
a decision brings such a challenge under the APA, 5 U.S.C. §
706(2)(A). Such parties face a high bar to success, however, as
NEPA-related decisions are accorded a considerable degree of
deference. The Supreme Court has held that in reviewing agency
decisions involving alleged NEPA violations, courts are to uphold
the agency’s decision unless the decision is “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance
with law.” Marsh v. Oregon National Res. Council, 490 U.S. 360,
375 n.21 (1989)(quoting 5 U.S.C. § 706(2)(A)). Under this “highly
deferential” standard, a reviewing court has the “least latitude in
finding grounds for reversal” of an agency decision and “may not
substitute its judgment for that of the agency.” Sabine River, 951
F.2d at 678 (internal quotations and citations omitted). Thus,
with respect to this case, our deferential role as a reviewing
court is limited to ensuring that the Lead Agencies took a “hard
look” at the environmental consequences; we cannot interject
2
The Collins plaintiffs do not appeal the district court’s
grant of summary judgment on their claim that Longhorn breached its
settlement agreement. Thus, the sole issue before us on appeal is
the validity of the Lead Agencies’ decision not to conduct an EIS.
9
ourselves within the area of discretion of the agencies as to the
ultimate choice of the action to be taken. Kleppe v. Sierra Club,
427 U.S. 390, 410 n. 21 (1976). In doing so, we evaluate the
record de novo. We undertake the same task as the district court,
reviewing the materials submitted there and determining whether the
agency's conclusions were arbitrary and capricious or contrary to
law. Sabine River, 951 F.2d at 679.
III. Discussion
Before examining the Collins plaintiffs’ arguments in detail,
we should first note how exceedingly thorough and comprehensive the
instant environmental assessment prepared by the Lead Agencies
appears to be. The law only requires that an EA be a “rough-cut,”
“low-budget,” preliminary look at the environmental impact of a
proposed project. Sabine River, 951 F.2d at 677. This EA,
however, is anything but rough-cut or low-budget. One and a half
years in the making, it consists of four lengthy volumes numbering
over 2,400 pages. It incorporates not only the analysis of agency
personnel but also studies from independent experts in pipeline
operations and safety, endangered species, hydrology, geology, lake
and stream modeling, chemistry, risk analysis, and emergency
response planning and implementation. It also incorporates the
Lead Agencies’ review of over 6,000 written comments and numerous
oral comments from six separate public meetings held throughout
potentially affected areas in the state of Texas. Its issuance was
predicated on Longhorn’s agreeing to employ and maintain a variety
10
of mitigation measures designed to lower the degree of identified
risk of impact to acceptable levels. Indeed, in many ways, this EA
is more akin to a full-blown EIS; it is unclear exactly what more
the Lead Agencies could have done to evaluate the significance of
this pipeline’s impact.
We should also note that we find nothing objectionable about
the fact that the issuance of the FONSI was predicated on Longhorn
agreeing to certain mitigation measures. This Court has never
explicitly upheld the issuance of a so-called “mitigated FONSI.”
This situation occurs when an agency or an involved third party
agrees to employ certain mitigation measures that will lower the
otherwise significant impacts of an activity on the environment to
a level of insignificance. In this way, a FONSI could be issued
for an activity that otherwise would require the preparation of a
full-blown EIS. Other circuits have endorsed such a practice. For
example, in Cabinet Mountains Wilderness v. Peterson, 685 F.2d 678(D.C. Cir. 1982), the District of Columbia Circuit Court of Appeals
held that “if, however, a proposal is modified prior to
implementation by adding specific mitigation measures which
completely compensate for any possible adverse environmental
impacts stemming from the original proposal, the statutory
threshold of significant environmental effects is not crossed and
an EIS is not required.” Other circuits have concurred with this
result. See, e.g., C.A.R.E. Now, Inc. v. FAA, 844 F.2d 1569 (11th
Cir. 1988); Greenpeace Action v. Franklin, 14 F.3d 1324 (9th Cir.
11
1992); Roanoke River Basin Ass’n v. Hudson, 940 F.2d 58 (4th Cir.
1991); Audubon Soc’y of Cent. Arkansas v. Dailey, 977 F.2d 428 (8th
Cir. 1992). While we have never explicitly upheld the use of a
mitigated FONSI, we have implicitly endorsed their use in Sierra
Club v. Espy, 38 F.3d 792, 803 (5th Cir. 1994) (holding that EAs
satisfied NEPA where they considered appropriate alternatives,
including mitigation measures), and Louisiana v. Lee, 758 F.2d
1081, 1083 (5th Cir. 1985) (holding that it was proper to consider
restrictions placed on dredging permits in reviewing the agency’s
decision not to file an EIS and citing Cabinet Mountains, 685 F.2d
at 682). Accordingly, we find no basis for objecting to the
mitigated nature of FONSI issued here. This is particularly true
given the fact that the original settlement agreement between the
parties specifically endorsed the use of a mitigated FONSI.
Despite its comprehensive nature, the Collins plaintiffs take
issue with the conducted EA and issued FONSI on three basic
grounds. First, they contend that the Lead Agencies’ assessment of
the environmental impact of the pipeline was conducted in bad faith
– that a political decision to issue a FONSI had been made
beforehand and the entire process was specifically tailored to
produce this result. Second, they assert that the Lead Agencies
did not follow the guidelines set out by relevant NEPA regulations;
specifically, they argue that the Lead Agencies failed to consider
and evaluate all the requisite factors stipulated by these
regulations. Finally, the Collins plaintiffs assert that even
12
assuming a sufficiently comprehensive “hard look” was taken, the
Lead Agencies’ findings were arbitrary and capricious since a clear
and rational examination of the record indicates that the Longhorn
Pipeline would have a significant effect on the environment. The
Collins plaintiffs made all three of these arguments to the
district court, which rejected them. We do so as well.
As to their first contention, the Collins plaintiffs
essentially assert that the EA prepared here was a sham --
contrived reports specifically tailored to rationalize a result
that had already been predetermined. They assert that the decision
to not prepare an EIS was a political decision made in advance by
the Council on Environmental Quality (“CEQ”) -- an executive branch
political organization -- and forced on the Lead Agencies.
Consequently, they argue that there was never any good faith
attempt to take the required “hard look” at any potentially
significant environmental effects the proposed action would have.
Instead, the EA that ultimately issued was a foregone conclusion,
whatever may have been the actual level of the significance of the
pipeline’s impacts.
We find no merit to this argument. Although it is true that
agencies are expected to engage in good faith fact-finding, when
their findings are challenged as arbitrary and capricious, the
agencies’ actions are judged in accordance with their stated
reasons. See, e.g., In re: Comptroller of the Currency, 156 F.3d
1279 (D.C. Cir. 1998). Thus, the “actual subjective motivation of
13
agency decisionmakers is immaterial as a matter of law -- unless
there is a showing of bad faith or improper behavior.” Id. at 1279-
80. There is no evidence here that the Lead Agencies acted
improperly or in bad faith. The assessment they prepared was
noteworthy for its exhaustive and extensive nature. Even more
detrimental to the Collins plaintiffs’ argument is that there is no
evidence of a causal link between the Lead Agencies’ decision to
issue a FONSI and the alleged political machinations; the record
suggests that the CEQ’s involvement did not come until after the
Lead Agencies had made the initial decision not to prepare an EIS.
Accordingly, there is no reason to overturn the Lead Agencies’
decision on these grounds.
As to the second contention, the Collins plaintiffs accurately
note that in taking a “hard look” at whether a proposed activity’s
impact will be significant, the relevant regulations instruct the
Lead Agencies to consider both the “context” and the “intensity” of
the impacts. 40 C.F.R. § 1508.27. According to these regulations,
consideration of context means that “the significance of an action
must be analyzed in several contexts such as society as a whole
(human, national), the affected region, the affected interests, and
the locality.” 40 C.F.R. § 1508.27(a). Intensity is defined as
“the severity of impact.” 40 C.F.R. § 1508(b). The regulation then
goes on to provide ten areas agencies should consider in evaluating
14
“intensity.” See id.3 The Collins plaintiffs contend that while
the Lead Agencies’ EA report accurately lists all ten factors as
being components of their assessment, their failure to specifically
address each of them separately and directly in this report
requires reversal. We do not think, however, that the Lead
Agencies’ decision should be overturned on such formalistic
grounds. Notably, the factors listed in the regulation do not
3
The ten listed factors are:
(1) Impacts that may be both beneficial and adverse. A significant
effect may exist even if the Federal agency believes that on
balance the effect will be beneficial.
(2) The degree to which the proposed action affects public health
or safety.
(3) Unique characteristics of the geographic area such as proximity
to historic or cultural resources, park lands, prime farmlands,
wetlands, wild and scenic rivers, or ecologically critical areas.
(4) The degree to which the effects on the quality of the human
environment are likely to be highly controversial.
(5) The degree to which the possible effects on the human
environment are highly uncertain or involve unique or unknown risks.
(6) The degree to which the action may establish a precedent for
future actions with significant effects or represents a decision in
principle about a future consideration.
(7) Whether the action is related to other actions with
individually insignificant but cumulatively significant impacts.
Significance exists if it is reasonable to anticipate a
cumulatively significant impact on the environment. Significance
cannot be avoided by terming an action temporary or by breaking it
down into small component parts.
(8) The degree to which the action may adversely affect districts,
sites, highways, structures, or objects listed in or eligible for
listing in the National Register of Historic Places or may cause
loss or destruction of significant scientific, cultural, or
historical resources.
(9) The degree to which the action may adversely affect an
endangered or threatened species or its habitat that has been
determined to be critical under the Endangered Species Act of 1973.
(10) Whether the action threatens a violation of Federal, State, or
local law or requirements imposed for the protection of the
environment.
15
appear to be categorical rules that determine by themselves whether
an impact is significant. Instead, they are simply a list of
relevant factors that should be considered in gauging whether an
impact is “intense” and, therefore, significant. As such, all that
would have to be shown is that all the factors were in some way
addressed and evaluated; whether this was done in factor-by-factor
fashion is irrelevant. We think that the record clearly indicates
that each of these factors received adequate attention and
evaluation in the Lead Agencies’ decision-making process.
Accordingly, we find no merit to this argument.
The Collins plaintiffs finally assert that, even assuming a
comprehensive “hard look” was taken, the conclusion that the impact
of the Longhorn Pipeline was not significant was still arbitrary
and capricious since the Lead Agencies’ conclusion was both grossly
unsupported by the facts found and premised on bad science and/or
inaccurate information. They argue that any reasonable
consideration of the ten requisite factors would have led a
rational decision-maker to conclude that the environmental impact
of the Longhorn Pipeline would be significant. According to them,
the EA report, the FONSI, and its underlying studies and findings
are “unduly optimistic,” “confusing,” “unreasonable” and “defy
common sense.” To substantiate these allegations, they offer the
detailed testimony of five expert witnesses retained by them.
We find no merit to this contention. The fact that the
Collins plaintiffs or their experts take great issue with the
16
factual findings and ultimate conclusions of the Lead Agencies does
not render those findings and conclusions “arbitrary and
capricious.” As we noted earlier, government agencies -- and not
the federal courts -- are the entities NEPA entrusts with weighing
evidence and reaching factual conclusions:
Where conflicting evidence is before the
agency, the agency and not the reviewing court
has the discretion to accept or reject from
the several sources of evidence. The agency
may even rely on the opinions of its own
experts, so long as the experts are qualified
and express a reasonable opinion.
Sabine River, 951 F.2d at 678.
Indeed, even if we were convinced that the Collins plaintiffs’
experts were more persuasive than those relied upon by the Lead
Agencies, we would still be compelled to uphold the Lead Agencies’
finding so long as their experts were qualified and their opinions
reasonable. Id.; Marsh, 490 U.S. at 378 (“[w]hen specialists
express conflicting views, an agency must have the 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.”).
There is no evidence here that the Lead Agencies’ experts are
unqualified, nor do their opinions seem unreasonable to us. The
Collins plaintiffs’ experts point to a number of specific flaws
they claim exist in the Lead Agencies’ fact-finding or conclusions.
These include allegations that the Lead Agencies should have
conducted more comprehensive studies than they chose to do, that
17
they utilized inaccurate and misleading statistical methodology in
analyzing the risks of pipeline leakage, that they ignored or
finessed the implications of key findings by the Lead Agencies’ own
experts in many instances, and that they inappropriately deferred
to Longhorn for data and then relied uncritically upon it.
Unsurprisingly, the Lead Agencies and Longhorn take issue with each
of these assertions, answering each point-by-point in their briefs.
After analyzing this back-and-forth between the parties, it seems
clear that whatever the merits of the Collins plaintiffs’ arguments
that the Lead Agencies’ decision-making process was less than
perfect, it was not unreasonable. Instead, the dispute between the
Collins plaintiffs and the defendants here is best classified as a
classic battle of the experts, with each party asserting that their
analysis is more reasonable than the other’s. Under the highly
deferential standard afforded to agencies pursuant to NEPA,
however, it is not the job of the federal courts to intervene in
this fight.4 The agencies have made their decision. It was not
4
The Collins plaintiffs advance the argument that even if the
environmental impact of the Longhorn Pipeline is not clearly
significant, it is at least a close call and, as they claim, close
calls are supposed to lead to an EIS. For this proposition of law,
they rely on National Audubon Soc’y v. Hoffman, 132 F.3d 7, 13 (2d
Cir. 1997)(“[w]hen the determination that a significant impact will
or will not result from the proposed action is a close call, an EIS
should be prepared.”). This Court, however, has never announced
such a rule. Indeed, it would be difficult to do so, given the
seeming conflict between such a rule and the highly deferential
“arbitrary and capricious” standard set out in Sabine River.
18
arbitrary and capricious. We are thus obliged to defer to their
expert judgment.5
IV. Conclusion
As we noted earlier, NEPA does not guarantee any substantive
results; all it ensures is that a particular process will be
5
We should note that our deference to the Lead Agencies fact-
finding and conclusions includes deference to their judgment as to
whether any particular environmental impact of the proposed
pipeline rises to the level of significance. The Collins
plaintiffs argue that under the NEPA framework, the determination
of whether an impact is significant must be objective, factual and
quantitative in nature and should not involve any subjective,
qualitative “judgment calls.” They argue that the final EA issued
here is inappropriately “larded” with such judgement calls,
particularly on the subject of how much risk constitutes
significant risk; it should therefore be overturned. The problem
with this contention is that, as a practical matter, a
determination of significance cannot be a completely objective
inquiry because the meaning of the term “significance” for purposes
of the NEPA statute is not clear on its face. Vieux Carre Property
Owners, Residents and Assoc’s., Inc. v. Pierce, 719 F.2d 1272, 1279
(5th Cir. 1983)(“There is no hard and fast definition of
‘significant’ effect.”). As such, determining whether significance
exists inherently involves some sort of a subjective judgment call.
Save Our Ten Acres v. Kreger, 472 F.2d 463, 467 n.7 (5th Cir. 1973)
(significance is “in large part a judgment based on the
circumstances of the proposed action.”). This must include
judgment calls about how much risk equals significant risk, i.e.,
judgment calls about “acceptable risk.” This observation has been
made by the Second Circuit in City of New York v. U.S. Dep’t of
Transp., 715 F.2d 732 (2d Cir. 1983). There, the court explicitly
held that agencies have “latitude in determining whether the risk
is sufficient to require the preparation of an EIS.” Id. at 746
n.14. This holding is sound because the “concept of overall risk
incorporates the significance of possible adverse consequences
discounted by the improbability of their occurrence.” Id. at 738.
That is not to say that any such judgment calls must be rubber-
stamped by a reviewing court; they are still subject to the
arbitrary and capricious standard of review. However, we do say
that the simple fact that a judgment call was made is not enough to
render the determination of significance (or non-significance)
invalid under NEPA.
19
followed. Herein lies the problem for the Collins plaintiffs.
They really don’t want more process. Indeed, considering the
extensive and comprehensive nature of the EA conducted here, it is
unclear exactly what more process would involve.6 What they really
desire is a substantive result: convinced that it poses a great
threat to the health and safety of its citizens and the environment
in general, the Collins plaintiffs want this pipeline project
killed. Unfortunately for their case, and whatever of the merits
of that position, this outcome cannot be secured in this federal
court proceeding. The Lead Agencies here have complied with the
NEPA statute and its accompanying regulations in every way. They
have conducted an exhaustive assessment of the environmental
effects of this proposed pipeline and, after consideration,
6
The Lead Agencies and Longhorn have argued that requiring the
preparation of an EIS here would be a waste of time and resources,
given the fact that the EA prepared here contains all the
functional elements of an EIS. We find this argument persuasive.
In Vieux Carre Property Owners, Residents and Assoc’s., Inc. v.
Pierce, 719 F.2d 1272, 1282 (5th Cir. 1983), this court upheld the
decision of an agency not to conduct an EIS where the “objectives
reflected in the [f]inal [EA] and the procedures followed in its
preparation were extremely thorough and resulted in a document much
akin to a detailed environmental impact statement.” But see State
of Louisiana v. Lee, 758 F.2d 1081 (5th Cir. 1985) (holding that an
EA prepared by an agency in that case was not the functional
equivalent of an EIS). Like the EA in Vieux Carre, the EA here has
all the hallmarks of an EIS: there were public hearings and
costly, extensive, and comprehensive environmental studies which
produced reams of material data and resulted in 2,400 pages of
analysis. Accordingly, it is unclear whether the time and expense
required to prepare an EIS after an EA will result in any
incremental benefits. Forcing the Lead Agencies to prepare an EIS
would likely be unnecessarily duplicative and a waste of resources.
20
concluded that those effects were not significant. Whether we
agree or disagree with that conclusion, we cannot call it arbitrary
and capricious. Accordingly, we have no ability to disturb it.
Therefore, the district court’s grant of summary judgment in favor
of the defendants is AFFIRMED in all respects.
AFFIRMED
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