Cumulative Impact in Focus: What if “Legal Borrowing” is Just the Ticket?

A failed lawsuit against a well in the bayous of southern Louisiana should be a wake-up call.

Just published earlier this month was a sad reminder of NEPA’s utter dependence upon the judicial system for its sting.  In Atchafalaya Basinkeeper v. Bostick, 2015 WL 3824318 (E.D. La. 2015), a federal district court denied any relief despite finding what it called “bad public policy . . . at a minimum” in the Corps of Engineers’ continuous permitting of oil/gas development in southern Louisiana.  The heart of the claim was that the Corps had permitted a well-rigging operation in a wetland area without any public notice and without any NEPA “hard look” at the potential consequences.  The denial of relief came because the well was permitted through a summary proceeding for supposedly insignificant work having little-to-no permanent impact and NEPA generally doesn’t apply to such summary proceedings where agencies like the Corps have exempted them categorically.  {See our file on so-called “categorical exclusions” generally here.}

The Atchafalaya delta is comprised of a web of bayous, their adjacent wetlands (and Cajuns), and a skein of oil/gas infrastructure.  As more oil and gas infrastructure permeated southern Louisiana, it continued losing its natural wetlands from a combination of causes.  The Mississippi Delta and the river’s effects on the Gulf are typically an opportunity to talk about dead zones created mostly by agricultural runoff from the huge fraction of the industrial ag regions of the US. mississippi basins

But in southern Louisiana another systemic influence is oil and gas development, specifically the legacy of so much development concentrated in a single area (like few other places on Earth).  Oil wells in the bayou mean levees and roads: lots of them.  {See this N.Y.Times Magazine piece about a “most ambitious environmental law suit” thereon.}  The system as a whole is dying from a thousand cuts and the NEPA questions are always: which ones are worth examining?  Which are worth examining in depth?

Just Another Brick in the Wall…

In April 2009, a small, independent operator sought permission under a Corps General Permit NOD-13 to build a ring levee and access road for its well in Iberville.  To be eligible for what’s called a “general permit,” the operator had to promise to remove whatever roading and leveeing was done once the well was to be abandoned.  Of course, lots of levees and roads from similar operations—even those that similarly promised to remove them—have been left in place, a casualty of the boom-and-bust cycle fossil fuels development means (or just plain bad faith).

This flickr album by the Basinkeeper group details some spills and other mishaps the Atchafalaya has endured in just the past few years.  Atchafalaya_River

Perhaps even worse than spills—with pipelines and roads come the systemic disruption of needed sediment flow.  Coastal wetlands are all about sediment flow.  If you cut that off, you asphyxiate the system.  The loss of underlying pressure from oil/gas displacement has meant subsidence at the same time.  But, again, none of this is the consequence of any single well, road, or levee—usually.

Here’s what the consortium of federal agencies operating under the “Coastal Wetlands Planning, Protection and Restoration Act” banner had to say about the Atchafalaya basin sediment and wetland loss:

The Atchafalaya Basin is unique among the basins because it has a growing delta system [just recently] with nearly stable wetlands. Wetland loss is minor in the areas north of Atchafalaya Bay when compared to the other basins. The total wetland loss in the area is approximately 3,760 acres between 1932 and 1990. The average loss from 1974 through 1990 is 87 acres per year. Wetland loss in this area is site dependent; loss is primarily due to erosion, human activities, and natural conversion.

“Human activities” deflect attention away from the one sort of activity that dominates all others in this part of the world: oil and gas development.  And, of course, the account itself (of wetland loss trends in the Atchafalaya) is contestable.  {But see this news at Live Science about some late satellite imagery.}

In all events, the district court in Bostick fully understood the sort of “degradation of sensitive wetlands” at issue, Slip Opinion at 11-12, and seemed to understand that in denying judicial relief to the plaintiffs, it was abetting yet another increment in a long, sorry slide for an entire ecological region.

Nonetheless, the court was probably on decent ground in holding that the Corps legally permitted the well with a general permit—requiring no public notice, per se—and, thus, as a general permit that it was not a “major federal action” significantly affecting the quality of the human environment necessitating a “detailed statement” in accordance with NEPA §102(2)(C).  The applicant, after all, promised it would remove the road and ring levee associated with this well.

The Problem with a Litigation-Driven NEPA

As we at the Lab often note, NEPA has become the single most utilized statute in opposing fossil fuel development in the US.  Arnold Reitze wrote not too long ago that “NEPA might have been consigned to the backwater of environmental law but for the aggressive interpretation of its provisions in cases argued by the fledgling environmental law bar in the 1970s before federal courts.”  Arnold W. Reitze, Jr., The Role of NEPA in Fossil Fuel Resource Development and Use in the Western United States, 39 B.C. Envtl. Affs. L. Rev. 283, 289 (2012).  And that may be true.

But litigation-driven development as an overall legacy has also left NEPA a statute too focused on the individual project, ill-equipped to force systemic concerns into agency deliberations where they can do the most good.  When that individual project is small, NEPA doesn’t apply and when the overall program and stream of projects is the problem, NEPA is growing more blinkered by the day.  Finally, NEPA plaintiffs can just as effectively use it to oppose a solar installation as they can an oil pipeline.  The cumulative effects of “general permit” oil and gas development in places like Iberville Parish—to say nothing of three centuries of fossil fuel combustion—are of much greater significance than this one well.  NEPA is, thus far, doing a terrible job of helping us manage cumulative impacts.

A European Look at an Old Problem?

The European Union’s revamped environmental impact assessment (EIA) directive, Directive 2014/52/EU, puts a renewed focus on cumulative impacts.  Especially in the form of what they call “salami slicing” programs and plans of development, the Euros have aimed to clamp down on impacts of the kind NEPA is still ignoring.  When will NEPA’s administrators take the cue?  A follow-up post will dig into the EU actions on cumulative effects and salami-slicing.

 

{Image: channels and bayous in Cocodrie, Louisiana—Debbie Elliott, NPR}

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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