ELR Citation: 55 ELR 20043
No(s). 23-40555 (5th Cir. Mar 28, 2025)

The Fifth Circuit affirmed denial of summary judgment for two Native American tribes and an environmental group in a challenge to a CWA §404 permit issued by the Army Corps of Engineers to expand operations at an oil export terminal on Texas' Gulf Coast. The tribes and group sought to invalidate the permit, arguing the project would significantly damage seagrasses and wetlands and that the Corps violated NEPA and the CWA. A district court denied summary judgment for plaintiffs and granted the Corps' cross-motion. The appellate court held the Corps did not violate NEPA or the CWA by issuing the permit without an EIS, that plaintiffs forfeited any arguments related to impacts of increased vessel traffic by failing to raise them during notice-and-comment, and that the Corps did not act arbitrarily or capriciously in its environmental analysis. It further found the Corps appropriately weighed benefits and costs of the project consistent with NEPA and CWA requirements, that the Corps' climate change analysis was sufficient, and that the Corps did not act arbitrarily or capriciously in issuing an EA and FONSI rather than a full EIS. The court affirmed summary judgment for the Corps.