Shrimpers v. US Army Corps ( 2021 )

Case: 20-60281 Document: 00515772530 Page: 1 Date Filed: 03/09/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 9, 2021
No. 20-60281 Lyle W. Cayce
Clerk
Shrimpers and Fishermen of the RGV; Sierra Club; Save
RGV from LNG,
Petitioners,
versus
United States Army Corps of Engineers,
Respondent.
Petition for Review of an Order of
the United States Army Corps of Engineers
Agency No. SWG-2015-00114
Before King, Elrod, and Willett, Circuit Judges.
Per Curiam:*
The U.S. Army Corps of Engineers issued a permit for a natural gas
pipeline authorizing the discharge of fill material into waters of the United
States. Petitioners now petition for review of that permit, alleging that the
permit violates the Clean Water Act. But in the time since the permit was
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-60281 Document: 00515772530 Page: 2 Date Filed: 03/09/2021
No. 20-60281
issued, the project design for the pipeline has changed, and, shortly after this
action was filed, the U.S. Army Corps of Engineers suspended the permit
while it reconsiders it. For the reasons that follow, we find the petition not
ripe for review and so this petition is HELD IN ABEYANCE.
I.
Petitioners Shrimpers and Fisherman of the RGV, Sierra Club, and
Save RGV from LNG (collectively, “Petitioners”) challenge whether
Respondent, the United States Army Corps of Engineers (the “Corps”),
violated the Clean Water Act, 33 U.S.C. § 1251 et seq., (the “CWA”) in
issuing a permit for a natural gas pipeline.
The Federal Energy Regulatory Commission (“FERC”) authorized
Intervenors Rio Grande LNG, LLC and Rio Bravo Pipeline Company, LLC
(collectively, “Intervenors”) to construct, operate, and maintain a liquefied
natural gas terminal and pipeline in Texas. In 2016, when Intervenors first
sought FERC authorization, the terminal would have included six
liquefaction trains—that is, equipment systems that remove impurities from
natural gas and cool it to liquid form—and, inter alia, a compressor station
known as Compressor Station 3.
After FERC authorized the project, the Corps issued the CWA
permit. But in the time since FERC’s approval and the issuance of the permit
the Intervenors have modified their project plan to eliminate two compressor
stations, including Compressor Station 3, increase the pipeline’s size, and
use five liquefaction trains instead of six. Accordingly and as requested by
Intervenors, the permit is currently suspended while the Corps reconsiders
it.
Before the Corps suspended the permit, however, Petitioners filed
this action, challenging the issuance of the permit based on the original
2
Case: 20-60281 Document: 00515772530 Page: 3 Date Filed: 03/09/2021
No. 20-60281
design. For the reasons that follow, we find the petition is not ripe for review
and therefore hold this appeal in abeyance.
II.
To determine whether claims are ripe for our review, we evaluate “the
fitness of the issues for judicial decision and the hardship to the parties of
withholding court consideration.” Abbott Labs. v. Gardner, 387 U.S. 136, 149
(1967). As part of this inquiry, in the administrative context, we look to four
factors: (1) “whether the challenged agency action constitutes ‘final agency
action,’ within the meaning of Section 10 of the Administrative Procedure
Act, 5 U.S.C. § 704”; (2) “whether the challenged agency action has or will
have a direct and immediate impact upon the petitioners”; (3) “whether the
issues presented are purely legal”; “and (4) whether resolution of the issues
will foster, rather than impede, effective enforcement and administration by
the agency.” Pennzoil Co. v. Fed. Energy Regul. Comm’n, 645 F.2d 394, 398
(5th Cir. 1981) (citing Abbott Labs., 387 U.S. at 149–54).
III.
Although the permit was seemingly final when the petition was filed,
that is no longer the case. To be sure, the permit has been suspended, and a
suspended permit is not “in effect.” See 33 C.F.R. § 325.6(a). Further, the
Corps is reconsidering the permit, and after doing so, it may “reinstate,
modify, or revoke” it. Id. § 325.7(c). Against the backdrop of the four factors
outlined in Pennzoil Co. v. Federal Energy Regulatory Commission, 645 F.2d at
398, for assessing ripeness of an agency action, this petition is not yet ripe for
review.
First, this permit is no longer final as it does not currently “mark the
consummation of the agency’s decisionmaking process” and similarly does
not currently determine “rights or obligations [from which] legal
consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-78 (1997)
3
Case: 20-60281 Document: 00515772530 Page: 4 Date Filed: 03/09/2021
No. 20-60281
(cleaned up). This is so due to the suspension and reconsideration
proceedings. Instead, the permit is now an interim step in the agency’s
decision-making process. Indeed, this court has previously held that matters
“still pending before [an agency] . . . [are] not yet ripe for judicial review.”
La. Power & Light Co. v. Federal Power Comm’n, 526 F.2d 898, 910 (5th Cir.
1976).
This point is underscored by the design changes proposed by
Intervenors, which may moot some or all of the alleged problems with the
original design. See Devia v. U.S. Nuclear Regul. Comm’n, 492 F.3d 421, 426
(D.C. Cir. 2007) (Garland, J.). Specifically, Petitioners have taken issue with
the use of six liquefaction trains and Compressor Station 3, but in the new
plan, the project would only have five liquefaction trains and would eliminate
Compressor Station 3. To that end, as the Corps considers these design
changes, they may squarely resolve Petitioners’ concerns and moot these
arguments. Although Petitioners also challenge whether the Corps
adequately considered and mitigated temporary impacts, any such
modification of the permit might likewise address these issues. Plainly, at this
juncture, it is simply “‘too speculative whether’ the validity of the [permit
for the original design] is a problem that ‘will ever need solving.’” Devia, 492
F.3d at 426 (quoting Texas v. United States, 523 U.S. 296, 302 (1998)).
Second, because no construction has occurred or will occur while the
permit is suspended, Petitioners have not experienced the necessary
hardship, that is, a “direct or immediate impact.” Pennzoil Co., 645 F.2d at
398. To the extent that they might experience hardship in the future, such
hardship is, at this point, speculative depending on the Corps’
reconsideration and the potential design changes.
Third, these concerns are subject to ongoing factual development as
the Corps reconsiders the permit and are thus not purely legal issues.
4
Case: 20-60281 Document: 00515772530 Page: 5 Date Filed: 03/09/2021
No. 20-60281
Specifically, as part of its reconsideration proceedings, the Corps must
evaluate the proposed changes, which includes a fact-intensive inquiry
regarding impacts to the waters of the United States.1
Finally, as this court has previously recognized, deciding issues that
will be decided again by the agency may ultimately impede the agency’s
ability to administer and enforce the relevant statute. See Miss. Valley Gas Co.
v. Fed. Energy Regul. Comm’n, 659 F.2d 488, 499 (5th Cir. 1981); see also
Pennzoil Co., 645 F.2d at 400 (noting that courts should not rule on an agency
decision that the agency “may wish to amend upon reconsideration”). In this
case, the Corps should first complete its reconsideration of the permit in light
of the CWA before the court considers the merits, as it is first the
responsibility of the Corps to enforce the CWA. See Devia, 492 F.3d at 426,
428 (holding a similar petition for review in abeyance where an administrative
approval was pending). For these reasons, the petition is not yet ripe for
review.
IV.
For the foregoing reasons, we will HOLD THIS PETITION IN
ABEYANCE until the Corps completes its reconsideration proceedings of
the currently suspended permit such that there is a live permit for us to
consider. At such time, the parties are further directed to file supplemental
briefing regarding their arguments. Finally, at argument, the government
indicated that the reconsideration proceedings should be concluded by the
end of March. Accordingly, at the end of March, the government should file
a letter updating the court as to the status of those proceedings.
1
We note that although the suspension letter is not part of the administrative
record, the court may consider materials outside of the administrative record when ripeness
is at issue. See Manguriu v. Lynch, 794 F.3d 119, 120, 121 (1st Cir. 2015).
5