Spiller v. White

United States Court of Appeals

Fifth Circuit

F I L E D

IN THE UNITED STATES COURT OF APPEALS

December 12, 2003

FOR THE FIFTH CIRCUIT

_____________________ Charles R. Fulbruge III

Clerk

No. 02-50956

_____________________

ETHEL SPILLER; ET AL.,

Plaintiffs,

MARIAN COLLINS; BARTON SPRINGS/EDWARDS

AQUIFER CONSERVATION DISTRICT;

DAVID ROBERTSON,

Plaintiffs - Appellants,

CITY OF AUSTIN,

Intervenor Plaintiff - Appellant,

versus

THOMAS E. WHITE, Etc.; ET AL.,

Defendants,

THOMAS E. WHITE, in his official capacity

as Acting Secretary of the Department of

the Army; NORMAN Y. MINETA, SECRETARY,

DEPARTMENT OF TRANSPORTATION; CHRISTINE

T. WHITMAN, ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY; UNITED

STATES OF AMERICA,

Defendants - Appellees,

LONGHORN PARTNERS PIPELINE LP,

Defendant - Appellee.

__________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________________________________________________

Before JOLLY, SMITH, and EMILIO M. GARZA, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Before this court is the joint decision of two government

agencies not to conduct a full-scale environmental impact study of

the environmental effects of a proposal to use a pre-existing

pipeline to transport gasoline and other petroleum products across

the state of Texas. The government agencies did perform an initial

environmental assessment but declined to engage in any further

studies after concluding that the environmental impact of the

proposed use of the pipeline would not be significant. The

petitioners consist of a variety of Texas cities and governmental

entities strongly opposed to the proposed use of this particular

pipeline. They urged the district court -- and they now urge this

court -- to order the government agencies to proceed with a full-

fledged environmental impact study, contending that the agencies’

finding of no significant environmental impact was arbitrary and

capricious and contrary to law. The district court upheld the

conclusion of the government agencies. We affirm.

I. Background

A. Statutory Background

This case arises under the network of the National

Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321-4370d,

“a statute drafted to ensure that federal agencies ‘carefully

consider detailed information concerning significant environmental

impacts,’ and at the same time ‘guarantee that the relevant

2

information will be made available to the larger audience that may

also play a role in both the decisionmaking process and the

implementation of that decision.’” Sabine River Authority v. U.S.

Dept. of Interior, 951 F.2d 669, 676 (5th Cir. 1993) (quoting

Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989)).

In essence, the NEPA framework requires federal agencies to prepare

a detailed Environmental Impact Statement (“EIS”) for all “major

federal actions significantly [affecting] the quality of the human

environment.” 42 U.S.C. § 4332(C).

The threshold determination of whether the effect of the

proposed action is sufficiently "significant" to necessitate the

production of an EIS is made by the preparation of an Environmental

Assessment (“EA”). Sabine River, 951 F.2d at 677. The EA is a

"concise" document that "briefly" discusses the relevant issues and

either reaches a conclusion that preparation of an EIS is necessary

or concludes with a "Finding of No Significant Impact" ("FONSI").

Id. An EA is conducted to “provide sufficient evidence and

analysis for determining whether to prepare an [EIS].” 40 C.F.R. §

1508.9(a)(1). “The EA is a rough-cut, low-budget environmental

impact statement designed to show whether a full-fledged

environmental impact statement -- which is very costly and time-

consuming to prepare and has been the kiss of death to many a

federal project -- is necessary.” Sabine River, 951 F.2d at 677

(internal quotations and citations removed). Thus, the ultimate

purpose of the EA is to lead to one of two findings: “either that

3

the project requires the preparation of an EIS to detail its

environmental impact, or that the project will have no significant

impact . . . necessitating no further study of the environmental

consequences which would ordinarily be explored through an EIS.”

Id. If the former is found, then the agency must proceed with a

full blown EIS; if the latter is found, the agency issues a FONSI

and has no further obligations under NEPA. Id.

Notably, the NEPA statutory framework provides no substantive

guarantees; it prescribes adherence to a particular process, not

the production of a particular result. Robertson, 490 U.S. at 350.

NEPA “is a procedural statute that demands that the decision to go

forward with a federal project which significantly affects the

environment be an environmentally conscious one.” Sabine River,

951 F.2d at 676. The statute “does not command the agency to favor

an environmentally preferable course of action, only that it make

its decision to proceed with the action after taking a ‘hard look

at environmental consequences.’” Id. (quoting Robertson, 490 U.S.

at 350). Indeed, “NEPA does not prohibit the undertaking of

federal projects patently destructive of the environment; it simply

mandates that the agency gather, study, and disseminate information

concerning the projects' environmental consequences.” Id. Thus,

while “[o]ther statutes may impose substantive environmental

obligations on federal agencies, . . . NEPA merely prohibits

uninformed -- rather than unwise -- agency action." Id.

4

B. Factual and Procedural History

This case concerns a pipeline that runs across the state of

Texas between Houston and El Paso. Along its way, the pipeline

passes through the City of Austin and across several rivers,

streams and wetlands. In addition, it lies atop several aquifers

and aquifer recharge zones. Exxon Pipeline Company originally

constructed the pipeline between 1949 and 1950 and used it to

transport crude oil until 1995. In 1997, Exxon sold the pipeline

to Longhorn Partners Pipeline, L.P. (“Longhorn”), a Delaware

limited liability partnership headquartered in Dallas, Texas.

Longhorn purchased the pipeline intending to use it to transport

gasoline and other petroleum products from Gulf Coast refineries to

El Paso and then, perhaps, on to other states. The pipeline will

eventually move approximately 225,000 barrels of gasoline per day

across its lines.

On April 22, 1998, Mariane Collins, the Barton Springs-Edwards

Aquifer Conservation District, and David Robertson filed a

challenge to the proposed pipeline under NEPA.1 In their original

complaint, the plaintiffs sought injunctive relief, claiming that

1

The Collins plaintiffs all claim to be potentially affected

by the proposed use of the pipeline. Marian Collins is a rancher

in Kimble County, Texas and claims she is totally dependent on

water drawn from the Edwards-Trinity Plateau Aquifer which is

allegedly threatened by this pipeline. David Robertson lives in

Hayes County and claims to rely on well-water drawn from this same

aquifer. The Barton Springs-Edwards Aquifer Conservation District

is a political subdivision charged with the protection of the

Barton Springs segment of the Edwards Aquifer.

5

NEPA obligated the federal government to perform a full-fledged

review of the environmental impact of the proposed use of the

Longhorn Pipeline. The suit was brought against Longhorn, the

United States, the United States Department of Transportation

(“DOT”), the Department of the Army, and the Environmental

Protection Agency (“EPA”). Shortly thereafter, the City of Austin

was allowed to intervene as the pipeline itself runs through the

city.

After some initial negotiations, Longhorn and the government

defendants entered into a settlement stipulation with the Collins

plaintiffs and the City of Austin (collectively referred to

hereafter as “the Collins plaintiffs”). Under this settlement, the

EPA and the DOT (hereafter referred to as the “Lead Agencies”)

agreed to prepare an EA of the pipeline. The parties agreed that

this EA would culminate in a FONSI or a notice of intent to prepare

an EIS. Upon acceptance of the settlement stipulation, the

district court issued an Agreed Order enjoining Longhorn from

placing petroleum products in the pipeline until thirty days after

the EA had been completed. The Agreed Order also specified that if

the Lead Agencies issued a FONSI, the Collins plaintiffs could

apply to the court to extend the injunction on the basis that the

FONSI was arbitrary and capricious or otherwise in violation of the

law under the Administrative Procedures Act (“APA”), 5 U.S.C. §

706.

6

In accordance with the settlement stipulation, the Lead

Agencies prepared an EA. On October 28, 1999, the Lead Agencies

issued the draft EA and a preliminary FONSI for public review and

comment (in accordance with 40 C.F.R. § 1506.6). The preliminary

FOSNI was a so-called “mitigated FONSI” which means that its

issuance was predicated on Longhorn’s engaging or agreeing to

engage in certain mitigation measures. These measures were

designed to address the potentially significant environmental

impacts of the pipeline and reduce the risks of them occurring to

a level where they were deemed insignificant by the Lead Agencies.

The Lead Agencies then held public hearings on the draft EA and the

preliminary FONSI in Austin, Houston, Fredricksburg, Bastrop and El

Paso and distributed hundreds of copies of the EA and FONSI in

counties along the pipeline. Following these hearings, the

submission of several thousand written comments on them, and after

further deliberation, on November 3, 2000, the EPA and DOT issued

a FONSI along with the final EA.

On February 5, 2001, the District Court granted the Collins

plaintiffs leave to amend their initial complaints. In their

amended complaint, the Collins plaintiffs contended that (1) the

Lead Agencies’ decision to issue a FONSI instead of preparing an

EIS was contrary to NEPA and was arbitrary and capricious in

violation of the APA, and (2) the Lead Agencies and Longhorn

breached the settlement agreement. In response, Longhorn and the

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Lead Agencies claimed that the decision to issue a FONSI was not

arbitrary and capricious and that they had complied with the

settlement agreement. All parties filed summary judgment motions

on June 10, 2002.

On July 19, 2002, the district court granted summary judgment

in favor of Longhorn and the Lead Agencies. It found that the Lead

Agencies’ decision to issue a FONSI and not prepare an EIS was not

arbitrary and capricious nor was it in any other way unlawful or in

violation of NEPA. Specifically, it found that the Lead Agencies

had taken the requisite “hard look” at the environmental impact of

the Longhorn Pipeline and had reasonably determined that the impact

would not be significant. In addition, it found that Longhorn had

not breached the settlement agreement.

On August 20, 2002, the Collins plaintiffs filed a timely

notice of appeal to this Court. In this appeal, the Collins

plaintiffs take issue with the district court’s finding that the

Lead Agencies’ decision to issue a FONSI and not to prepare an EIS

was not arbitrary and capricious or otherwise in violation of the

law. They urge this Court to reverse this finding, remanding with

instructions that the district court remand the proceeding to the

Lead Agencies for preparation of an EIS, or alternatively, for

8

reconsideration of the FONSI in response to a judicial

determination that it was issued in violation of NEPA.2

II. Standard of Review

Because NEPA dictates no particular substantive result, an

agency decision not to conduct an EIS based on a FONSI is

reviewable only on procedural grounds. A party objecting to such

a decision brings such a challenge under the APA, 5 U.S.C. §

706(2)(A). Such parties face a high bar to success, however, as

NEPA-related decisions are accorded a considerable degree of

deference. The Supreme Court has held that in reviewing agency

decisions involving alleged NEPA violations, courts are to uphold

the agency’s decision unless the decision is “arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance

with law.” Marsh v. Oregon National Res. Council, 490 U.S. 360,

375 n.21 (1989)(quoting 5 U.S.C. § 706(2)(A)). Under this “highly

deferential” standard, a reviewing court has the “least latitude in

finding grounds for reversal” of an agency decision and “may not

substitute its judgment for that of the agency.” Sabine River, 951

F.2d at 678 (internal quotations and citations omitted). Thus,

with respect to this case, our deferential role as a reviewing

court is limited to ensuring that the Lead Agencies took a “hard

look” at the environmental consequences; we cannot interject

2

The Collins plaintiffs do not appeal the district court’s

grant of summary judgment on their claim that Longhorn breached its

settlement agreement. Thus, the sole issue before us on appeal is

the validity of the Lead Agencies’ decision not to conduct an EIS.

9

ourselves within the area of discretion of the agencies as to the

ultimate choice of the action to be taken. Kleppe v. Sierra Club,

427 U.S. 390, 410 n. 21 (1976). In doing so, we evaluate the

record de novo. We undertake the same task as the district court,

reviewing the materials submitted there and determining whether the

agency's conclusions were arbitrary and capricious or contrary to

law. Sabine River, 951 F.2d at 679.

III. Discussion

Before examining the Collins plaintiffs’ arguments in detail,

we should first note how exceedingly thorough and comprehensive the

instant environmental assessment prepared by the Lead Agencies

appears to be. The law only requires that an EA be a “rough-cut,”

“low-budget,” preliminary look at the environmental impact of a

proposed project. Sabine River, 951 F.2d at 677. This EA,

however, is anything but rough-cut or low-budget. One and a half

years in the making, it consists of four lengthy volumes numbering

over 2,400 pages. It incorporates not only the analysis of agency

personnel but also studies from independent experts in pipeline

operations and safety, endangered species, hydrology, geology, lake

and stream modeling, chemistry, risk analysis, and emergency

response planning and implementation. It also incorporates the

Lead Agencies’ review of over 6,000 written comments and numerous

oral comments from six separate public meetings held throughout

potentially affected areas in the state of Texas. Its issuance was

predicated on Longhorn’s agreeing to employ and maintain a variety

10

of mitigation measures designed to lower the degree of identified

risk of impact to acceptable levels. Indeed, in many ways, this EA

is more akin to a full-blown EIS; it is unclear exactly what more

the Lead Agencies could have done to evaluate the significance of

this pipeline’s impact.

We should also note that we find nothing objectionable about

the fact that the issuance of the FONSI was predicated on Longhorn

agreeing to certain mitigation measures. This Court has never

explicitly upheld the issuance of a so-called “mitigated FONSI.”

This situation occurs when an agency or an involved third party

agrees to employ certain mitigation measures that will lower the

otherwise significant impacts of an activity on the environment to

a level of insignificance. In this way, a FONSI could be issued

for an activity that otherwise would require the preparation of a

full-blown EIS. Other circuits have endorsed such a practice. For

example, in Cabinet Mountains Wilderness v. Peterson, 685 F.2d 678

(D.C. Cir. 1982), the District of Columbia Circuit Court of Appeals

held that “if, however, a proposal is modified prior to

implementation by adding specific mitigation measures which

completely compensate for any possible adverse environmental

impacts stemming from the original proposal, the statutory

threshold of significant environmental effects is not crossed and

an EIS is not required.” Other circuits have concurred with this

result. See, e.g., C.A.R.E. Now, Inc. v. FAA, 844 F.2d 1569 (11th

Cir. 1988); Greenpeace Action v. Franklin, 14 F.3d 1324 (9th Cir.

11

1992); Roanoke River Basin Ass’n v. Hudson, 940 F.2d 58 (4th Cir.

1991); Audubon Soc’y of Cent. Arkansas v. Dailey, 977 F.2d 428 (8th

Cir. 1992). While we have never explicitly upheld the use of a

mitigated FONSI, we have implicitly endorsed their use in Sierra

Club v. Espy, 38 F.3d 792, 803 (5th Cir. 1994) (holding that EAs

satisfied NEPA where they considered appropriate alternatives,

including mitigation measures), and Louisiana v. Lee, 758 F.2d

1081, 1083 (5th Cir. 1985) (holding that it was proper to consider

restrictions placed on dredging permits in reviewing the agency’s

decision not to file an EIS and citing Cabinet Mountains, 685 F.2d

at 682). Accordingly, we find no basis for objecting to the

mitigated nature of FONSI issued here. This is particularly true

given the fact that the original settlement agreement between the

parties specifically endorsed the use of a mitigated FONSI.

Despite its comprehensive nature, the Collins plaintiffs take

issue with the conducted EA and issued FONSI on three basic

grounds. First, they contend that the Lead Agencies’ assessment of

the environmental impact of the pipeline was conducted in bad faith

– that a political decision to issue a FONSI had been made

beforehand and the entire process was specifically tailored to

produce this result. Second, they assert that the Lead Agencies

did not follow the guidelines set out by relevant NEPA regulations;

specifically, they argue that the Lead Agencies failed to consider

and evaluate all the requisite factors stipulated by these

regulations. Finally, the Collins plaintiffs assert that even

12

assuming a sufficiently comprehensive “hard look” was taken, the

Lead Agencies’ findings were arbitrary and capricious since a clear

and rational examination of the record indicates that the Longhorn

Pipeline would have a significant effect on the environment. The

Collins plaintiffs made all three of these arguments to the

district court, which rejected them. We do so as well.

As to their first contention, the Collins plaintiffs

essentially assert that the EA prepared here was a sham --

contrived reports specifically tailored to rationalize a result

that had already been predetermined. They assert that the decision

to not prepare an EIS was a political decision made in advance by

the Council on Environmental Quality (“CEQ”) -- an executive branch

political organization -- and forced on the Lead Agencies.

Consequently, they argue that there was never any good faith

attempt to take the required “hard look” at any potentially

significant environmental effects the proposed action would have.

Instead, the EA that ultimately issued was a foregone conclusion,

whatever may have been the actual level of the significance of the

pipeline’s impacts.

We find no merit to this argument. Although it is true that

agencies are expected to engage in good faith fact-finding, when

their findings are challenged as arbitrary and capricious, the

agencies’ actions are judged in accordance with their stated

reasons. See, e.g., In re: Comptroller of the Currency, 156 F.3d

1279 (D.C. Cir. 1998). Thus, the “actual subjective motivation of

13

agency decisionmakers is immaterial as a matter of law -- unless

there is a showing of bad faith or improper behavior.” Id. at 1279-

80. There is no evidence here that the Lead Agencies acted

improperly or in bad faith. The assessment they prepared was

noteworthy for its exhaustive and extensive nature. Even more

detrimental to the Collins plaintiffs’ argument is that there is no

evidence of a causal link between the Lead Agencies’ decision to

issue a FONSI and the alleged political machinations; the record

suggests that the CEQ’s involvement did not come until after the

Lead Agencies had made the initial decision not to prepare an EIS.

Accordingly, there is no reason to overturn the Lead Agencies’

decision on these grounds.

As to the second contention, the Collins plaintiffs accurately

note that in taking a “hard look” at whether a proposed activity’s

impact will be significant, the relevant regulations instruct the

Lead Agencies to consider both the “context” and the “intensity” of

the impacts. 40 C.F.R. § 1508.27. According to these regulations,

consideration of context means that “the significance of an action

must be analyzed in several contexts such as society as a whole

(human, national), the affected region, the affected interests, and

the locality.” 40 C.F.R. § 1508.27(a). Intensity is defined as

“the severity of impact.” 40 C.F.R. § 1508(b). The regulation then

goes on to provide ten areas agencies should consider in evaluating

14

“intensity.” See id.3 The Collins plaintiffs contend that while

the Lead Agencies’ EA report accurately lists all ten factors as

being components of their assessment, their failure to specifically

address each of them separately and directly in this report

requires reversal. We do not think, however, that the Lead

Agencies’ decision should be overturned on such formalistic

grounds. Notably, the factors listed in the regulation do not

3

The ten listed factors are:

(1) Impacts that may be both beneficial and adverse. A significant

effect may exist even if the Federal agency believes that on

balance the effect will be beneficial.

(2) The degree to which the proposed action affects public health

or safety.

(3) Unique characteristics of the geographic area such as proximity

to historic or cultural resources, park lands, prime farmlands,

wetlands, wild and scenic rivers, or ecologically critical areas.

(4) The degree to which the effects on the quality of the human

environment are likely to be highly controversial.

(5) The degree to which the possible effects on the human

environment are highly uncertain or involve unique or unknown risks.

(6) The degree to which the action may establish a precedent for

future actions with significant effects or represents a decision in

principle about a future consideration.

(7) Whether the action is related to other actions with

individually insignificant but cumulatively significant impacts.

Significance exists if it is reasonable to anticipate a

cumulatively significant impact on the environment. Significance

cannot be avoided by terming an action temporary or by breaking it

down into small component parts.

(8) The degree to which the action may adversely affect districts,

sites, highways, structures, or objects listed in or eligible for

listing in the National Register of Historic Places or may cause

loss or destruction of significant scientific, cultural, or

historical resources.

(9) The degree to which the action may adversely affect an

endangered or threatened species or its habitat that has been

determined to be critical under the Endangered Species Act of 1973.

(10) Whether the action threatens a violation of Federal, State, or

local law or requirements imposed for the protection of the

environment.

15

appear to be categorical rules that determine by themselves whether

an impact is significant. Instead, they are simply a list of

relevant factors that should be considered in gauging whether an

impact is “intense” and, therefore, significant. As such, all that

would have to be shown is that all the factors were in some way

addressed and evaluated; whether this was done in factor-by-factor

fashion is irrelevant. We think that the record clearly indicates

that each of these factors received adequate attention and

evaluation in the Lead Agencies’ decision-making process.

Accordingly, we find no merit to this argument.

The Collins plaintiffs finally assert that, even assuming a

comprehensive “hard look” was taken, the conclusion that the impact

of the Longhorn Pipeline was not significant was still arbitrary

and capricious since the Lead Agencies’ conclusion was both grossly

unsupported by the facts found and premised on bad science and/or

inaccurate information. They argue that any reasonable

consideration of the ten requisite factors would have led a

rational decision-maker to conclude that the environmental impact

of the Longhorn Pipeline would be significant. According to them,

the EA report, the FONSI, and its underlying studies and findings

are “unduly optimistic,” “confusing,” “unreasonable” and “defy

common sense.” To substantiate these allegations, they offer the

detailed testimony of five expert witnesses retained by them.

We find no merit to this contention. The fact that the

Collins plaintiffs or their experts take great issue with the

16

factual findings and ultimate conclusions of the Lead Agencies does

not render those findings and conclusions “arbitrary and

capricious.” As we noted earlier, government agencies -- and not

the federal courts -- are the entities NEPA entrusts with weighing

evidence and reaching factual conclusions:

Where conflicting evidence is before the

agency, the agency and not the reviewing court

has the discretion to accept or reject from

the several sources of evidence. The agency

may even rely on the opinions of its own

experts, so long as the experts are qualified

and express a reasonable opinion.

Sabine River, 951 F.2d at 678.

Indeed, even if we were convinced that the Collins plaintiffs’

experts were more persuasive than those relied upon by the Lead

Agencies, we would still be compelled to uphold the Lead Agencies’

finding so long as their experts were qualified and their opinions

reasonable. Id.; Marsh, 490 U.S. at 378 (“[w]hen specialists

express conflicting views, an agency must have the discretion to

rely on the reasonable opinions of its own qualified experts, even

if, as an original matter, a court might find contrary views more

persuasive.”).

There is no evidence here that the Lead Agencies’ experts are

unqualified, nor do their opinions seem unreasonable to us. The

Collins plaintiffs’ experts point to a number of specific flaws

they claim exist in the Lead Agencies’ fact-finding or conclusions.

These include allegations that the Lead Agencies should have

conducted more comprehensive studies than they chose to do, that

17

they utilized inaccurate and misleading statistical methodology in

analyzing the risks of pipeline leakage, that they ignored or

finessed the implications of key findings by the Lead Agencies’ own

experts in many instances, and that they inappropriately deferred

to Longhorn for data and then relied uncritically upon it.

Unsurprisingly, the Lead Agencies and Longhorn take issue with each

of these assertions, answering each point-by-point in their briefs.

After analyzing this back-and-forth between the parties, it seems

clear that whatever the merits of the Collins plaintiffs’ arguments

that the Lead Agencies’ decision-making process was less than

perfect, it was not unreasonable. Instead, the dispute between the

Collins plaintiffs and the defendants here is best classified as a

classic battle of the experts, with each party asserting that their

analysis is more reasonable than the other’s. Under the highly

deferential standard afforded to agencies pursuant to NEPA,

however, it is not the job of the federal courts to intervene in

this fight.4 The agencies have made their decision. It was not

4

The Collins plaintiffs advance the argument that even if the

environmental impact of the Longhorn Pipeline is not clearly

significant, it is at least a close call and, as they claim, close

calls are supposed to lead to an EIS. For this proposition of law,

they rely on National Audubon Soc’y v. Hoffman, 132 F.3d 7, 13 (2d

Cir. 1997)(“[w]hen the determination that a significant impact will

or will not result from the proposed action is a close call, an EIS

should be prepared.”). This Court, however, has never announced

such a rule. Indeed, it would be difficult to do so, given the

seeming conflict between such a rule and the highly deferential

“arbitrary and capricious” standard set out in Sabine River.

18

arbitrary and capricious. We are thus obliged to defer to their

expert judgment.5

IV. Conclusion

As we noted earlier, NEPA does not guarantee any substantive

results; all it ensures is that a particular process will be

5

We should note that our deference to the Lead Agencies fact-

finding and conclusions includes deference to their judgment as to

whether any particular environmental impact of the proposed

pipeline rises to the level of significance. The Collins

plaintiffs argue that under the NEPA framework, the determination

of whether an impact is significant must be objective, factual and

quantitative in nature and should not involve any subjective,

qualitative “judgment calls.” They argue that the final EA issued

here is inappropriately “larded” with such judgement calls,

particularly on the subject of how much risk constitutes

significant risk; it should therefore be overturned. The problem

with this contention is that, as a practical matter, a

determination of significance cannot be a completely objective

inquiry because the meaning of the term “significance” for purposes

of the NEPA statute is not clear on its face. Vieux Carre Property

Owners, Residents and Assoc’s., Inc. v. Pierce, 719 F.2d 1272, 1279

(5th Cir. 1983)(“There is no hard and fast definition of

‘significant’ effect.”). As such, determining whether significance

exists inherently involves some sort of a subjective judgment call.

Save Our Ten Acres v. Kreger, 472 F.2d 463, 467 n.7 (5th Cir. 1973)

(significance is “in large part a judgment based on the

circumstances of the proposed action.”). This must include

judgment calls about how much risk equals significant risk, i.e.,

judgment calls about “acceptable risk.” This observation has been

made by the Second Circuit in City of New York v. U.S. Dep’t of

Transp., 715 F.2d 732 (2d Cir. 1983). There, the court explicitly

held that agencies have “latitude in determining whether the risk

is sufficient to require the preparation of an EIS.” Id. at 746

n.14. This holding is sound because the “concept of overall risk

incorporates the significance of possible adverse consequences

discounted by the improbability of their occurrence.” Id. at 738.

That is not to say that any such judgment calls must be rubber-

stamped by a reviewing court; they are still subject to the

arbitrary and capricious standard of review. However, we do say

that the simple fact that a judgment call was made is not enough to

render the determination of significance (or non-significance)

invalid under NEPA.

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followed. Herein lies the problem for the Collins plaintiffs.

They really don’t want more process. Indeed, considering the

extensive and comprehensive nature of the EA conducted here, it is

unclear exactly what more process would involve.6 What they really

desire is a substantive result: convinced that it poses a great

threat to the health and safety of its citizens and the environment

in general, the Collins plaintiffs want this pipeline project

killed. Unfortunately for their case, and whatever of the merits

of that position, this outcome cannot be secured in this federal

court proceeding. The Lead Agencies here have complied with the

NEPA statute and its accompanying regulations in every way. They

have conducted an exhaustive assessment of the environmental

effects of this proposed pipeline and, after consideration,

6

The Lead Agencies and Longhorn have argued that requiring the

preparation of an EIS here would be a waste of time and resources,

given the fact that the EA prepared here contains all the

functional elements of an EIS. We find this argument persuasive.

In Vieux Carre Property Owners, Residents and Assoc’s., Inc. v.

Pierce, 719 F.2d 1272, 1282 (5th Cir. 1983), this court upheld the

decision of an agency not to conduct an EIS where the “objectives

reflected in the [f]inal [EA] and the procedures followed in its

preparation were extremely thorough and resulted in a document much

akin to a detailed environmental impact statement.” But see State

of Louisiana v. Lee, 758 F.2d 1081 (5th Cir. 1985) (holding that an

EA prepared by an agency in that case was not the functional

equivalent of an EIS). Like the EA in Vieux Carre, the EA here has

all the hallmarks of an EIS: there were public hearings and

costly, extensive, and comprehensive environmental studies which

produced reams of material data and resulted in 2,400 pages of

analysis. Accordingly, it is unclear whether the time and expense

required to prepare an EIS after an EA will result in any

incremental benefits. Forcing the Lead Agencies to prepare an EIS

would likely be unnecessarily duplicative and a waste of resources.

20

concluded that those effects were not significant. Whether we

agree or disagree with that conclusion, we cannot call it arbitrary

and capricious. Accordingly, we have no ability to disturb it.

Therefore, the district court’s grant of summary judgment in favor

of the defendants is AFFIRMED in all respects.

AFFIRMED

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