In Citizens for Clean Air & Clean Water in Brazoria County et al v. United States Department of Transportation et al., several environmental groups challenged the DOT’s approval of a license for commercial construction and operation of the Sea Port Oil Terminal, alleging violations of the Deepwater Port Act and the National Environmental Policy Act. The suit asked that the Court vacate approval of the license and remand to the agency for a more robust analysis of the project’s environmental impact. The Fifth Circuit Court denied the request.

I will spare you a deep dive into federal law on the subject – of which there is a lot – but rather will give a look at how this federal court treated a challenge to approval of an Environmental Impact Statement for a controversial oil project.

The project

SPOT will be the largest deepwater terminal of its kind anywhere and would load as many as 365 “very large crude carriers” (“VLCC’s”) each year. It will be located 27 nautical miles offshore Brazoria County, Texas, and connect to existing land-based oil facilities through subsea and onshore pipelines and replace a constant parade of lightering ships that otherwise transport oil from facilities on the coast to the deep water where the VLCC’s dock. Enterprise Products is the operator of the facility.

The DOT approved SPOT’s license after hearings, numerous public comments, and input from other agencies.

The claims

The groups challenged the 1000+ page Environmental Impact Statement prepared by the DOT, warning of severe and lasting global consequences from the port, including emissions of harmful pollutants, threatening the marine environment, discharging hazardous substances, noise pollution, habitat destruction, property devaluation, and bringing the endangered Rice’s whale closer to extinction.

The charges were that the agencies applied a flawed alternative analysis and grossly underestimated SPOT’s environmental impacts concerning a host of foreseeable consequences, including oil spills, harmful impacts on animals, catastrophic pipeline ruptures and diminished air quality. The charge was that the agencies failed to conduct an appropriate level of review in its EIS and failed to follow statutory provisions.

Plaintiffs had standing

The court first found that the petitioners identified concrete interests that would be impaired by the agencies’ allegedly inadequate environmental review. For example, they had a cognizable interest in their desire to use or observe animal species even if for purely aesthetic purposes. They had standing to bring the suit.

The claims and the EIS

Courts review an EIS under the rule of reason and “must not substitute its judgment for that of the agency.” An arbitrary or capricious action “is one that relies on improper factors, fails to consider key information, offers a decision that the record does not support, or lacks plausibility.”

The Court discussed in detail (see the opinion) the alleged deficiencies in the EIS: oil spill risks (which must be “reasonably foreseable”), impacts on protected species (this is not the Rice’s whale’s habitat), air quality analyses, and analyses of alternatives (which must be technically and economically feasible). The Court concluded that the agency’s decision was rational and based on consideration of the relevant factors and should be upheld. The NEPA was enacted to “create and maintain conditions under which man and nature can exist in productive harmony.” But, “… Despite these ambitious goals the NEPA does not mandate environmentally friendly results; it imposes procedural requirements that the government considers the environmental impact of [its] proposals and actions.”  

The court closed by saying that although petitioners may disagree with the decision it was, at the very least, informed. Because the NEPA and DCA require nothing more, the petition was denied.

Ideology, not people

You can respect efforts by these groups against projects that they believe are detrimental to the environment. But a theme in the suit was that the project will induce new production for export that would not otherwise occur, which means that SPOT will exponentially multiply oil consumption and demand by decreasing transportation costs. This implacable and misanthropic ideology, untethered to reality, is without concern for communities and economies around the world that need abundant, reliable and affordable energy to reach (for most of the world) or maintain (as in yours, mine, and theirs) the lifestyle that these environmentalists seem to take for granted.

Your musical interlude

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