Environmental Law – Dredging of Delaware River Allowed to Begin…Will It Be Completed?

March 29, 2010

Publication| Environmental

On March 1, 2010, the Army Corps of Engineers began to dredge a section of the Delaware River to deepen the shipping channel that services ports as far north as Philadelphia and Camden.  While not a remarkable event, as yearly maintenance dredging occurs, the dredging of the river to a lower depth was preceded by more than twenty years of debate, administrative actions and litigation surrounding the need to deepen the channel.  Yet, even as the dredging takes place, the fight continues, as the Governor of New Jersey has pledged to oppose the channel deepening on economic and environmental grounds.

Delaware Sues to Enjoin the Corps
Litigation surrounding the dredging ensued earlier this year in the United States District Court for the District of Delaware after the Corps decided to proceed with the deepening project despite not having received all state permits and approvals to do so.  Before proceeding, the Corps found that Delaware had refused to provide one such permit in a timely and responsible manner, thereby interfering with its authority to maintain navigation as directed by Congress, and concluded that its actions would conform to the applicable State Implementation Plans, pending the purchase of emission reduction credits.

The State of Delaware Department of Natural Resources and Environmental Control (“DNREC”) sought to enjoin the Corps from proceeding with the deepening project until the Corps demonstrated its compliance with all applicable state and federal requirements, alleging violations of the Clean Water Act, Clean Air Act, Coastal Zone Management Act and the state regulatory regimes associated with these statutes.

The District Court Decision
The District Court analyzed DNREC’s preliminary injunction motion under the Winter v. Natural Resources Defense Council, Inc., –U.S.–, 129 S. Ct. 365, 172 L.Ed. 2d 249 (2008), standard of (i) likelihood of success on the merits, (ii) likelihood of irreparable harm, (iii) balancing of the equities and (iv) the public interest.  For likelihood of success on the merits, the court analyzed each alleged violation within the strictures of the Administrative Procedures Act.

DNREC first alleged that, under Section 313(a) of the Clean Water Act, the Corps’ sovereign immunity with respect to the project had been explicitly waived, subjecting it to the State’s regulatory process by which it must obtain the necessary permit prior to commencing construction.  The court found that Section 404(t)’s more limited waiver specifically governing discharge of dredged mater governed the Corps’ activities for the project.  This meant that the Corps would be subject to the State’s administrative requirements so long as its authority to maintain navigation remained unimpaired.  The Corps, however, had already made a finding that DNREC’s delay impaired its authority, and the court held that this finding, which was afforded great deference, was not arbitrary or capricious.

Addressing the Clean Air Act allegations, the court analyzed the sufficiency of the Corps determination that the project conformed to the applicable SIPs, focusing on the Corps’ choice to purchase ERCs as a mitigation measure to demonstrate conformity.  The court found that absent from the conformity determination was an enforceable measure to obtain the ERCs.  Without a specific source for and amount of ERCs, the record did not support that the Corps made a rational determination of conformity.

DNREC next argued that the Corps failed to certify to its “satisfaction” that the project was consistent with the Delaware Coastal Management Program as required under the Coastal Zone Management Act.  While DNREC had initially concurred with the Corps’ consistency determination, it claimed that substantial changes to the project mandated that the Corps engage in a supplementary consistency determination.  The court found that DNREC’s “satisfaction” was not required, and that the Corps could proceed with a project so long as it concluded that its project was “fully consistent” with the State’s management plan.  For any interim changes after an initial consistency determination, the Corps was required to identify if any substantially different effects resulted therefrom, and the Corps had not identified any such results.

On the issue of irreparable injury, DNREC asserted two potential harms:  (1) allowing the Corps to bypass the state regulatory process would run afoul of Delaware’s sovereign authority, and (2) the Corps’ activities would result in harm to the environment.  As to the first assertion, the court found that the federal supremacy principles apparent in the CWA, CAA and CZMA require that state law yield in certain statutorily defined circumstances, and that a federal agency’s employment of such a circumstance could not result in harm relevant to the Winter inquiry.  For harm to the environment, while the court recognized that injury to the environment constitutes irreparable harm, such harm must be substantiated and the court found that DNREC had failed to do so.  The court found “especially telling” that DNREC could not provide any physical evidence tending to show an injury, and that the Corps had proffered the only technical studies that were before the court.

Economic vs. Environmental Interests
In balancing the equities and the public interest, the court weighed the interests of the “nation’s environmental preservation efforts” against the continued economic vitality of the Delaware River ports and found them equally compelling.  The court then looked to Congress’ determination, as evidenced by its funding decisions, that it was in the public interest to proceed with the project.

Partial Injunction as to Future Phases – Wait and See
Ultimately, the court found that DNREC had not carried its burden that the project should be enjoined and denied DNREC’s motion as to the first phase of the project.  However, since the initial project stage would last through December 2010, and DNREC represented that an administrative review of the project would be concluded within a year, the court granted the motion as to the rest of the project.  In doing so, however, the court went to great lengths to clarify that it was not suggesting that the project would not be completed.  Rather, the court observed that further administrative review would be a means to accomplish the project without causing environmental harm, not a means to stop the project altogether.

Following the district court’s decision, the U.S. Court of Appeals for the Third Circuit denied a motion by five environmental groups to block the ruling, finding that the groups had “failed to meet the standards for an injunction or stay pending appeal.”

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