STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
25-551 consolidated with 25-552
HEALTHY GULF, ET AL.
VERSUS
SECRETARY, LOUISIANA DEPARTMENT OF NATURAL RESOURCES
Consolidated with 25-552
**********
APPEAL FROM THE THIRTY-EIGHTH JUDICIAL DISTRICT COURT PARISH OF CAMERON, NUMBER 1021076 CONSOLIDATED WITH 1021077 HONORABLE H. WARD FONTENOT, DISTRICT JUDGE
CLAYTON DAVIS JUDGE
Court composed of Charles G. Fitzgerald, Gary J. Ortego, and Clayton Davis, Judges.
AFFIRMED. Myles Ranier Broussard Knoll Law Firm 1301 Common Street Lake Charles, Louisiana 70601 (337) 439-2450 myles@broussardknoll.com COUNSEL FOR PLAINTIFFS APPELLANTS: Healthy Gulf For A Better Bayou Fishermen Involved in Sustaining Our Heritage Habitat Recovery Project Louisiana Bucket Brigade Micah 6:8 Mission Sierra Club
Elizabeth Livingston de Calderon Michael L. Brown Bridgett McCoy Earth Justice 900 Camp Street, Unit 303 New Orleans, Louisiana 70130 (504) 910-1712 ecalderon@earthjustice.org mlbrown@earthjustice.org bmccoy@earthjustice.org COUNSEL FOR PLAINTIFFS APPELLANTS: Healthy Gulf For A Better Bayou Fishermen Involved in Sustaining Our Heritage Habitat Recovery Project Louisiana Bucket Brigade Micah 6:8 Mission Sierra Club
Kirk A. Patrick, III Dylan A. Thompson Donahue, Patrick & Scott PLLC 450 Laurel Street, Suite 1600 Post Office Box 1629 Baton Rouge, Louisiana 70801 (225) 214-1908 patrick@dps-law.com dthompson@dps-law.com COUNSEL FOR AMICUS CURIAE: James Steven Broussard Cheryl Kim Broussard J.S. Broussard Farms, LLC David A. Peterson Richelle N. Moore Louisiana Department of Justice Post Office Box 94005 Baton Rouge, Louisiana 70821 (225) 326-6000 Petersond@ag.louisiana.gov MooreR@ag.louisiana.gov COUNSEL FOR DEFENDANT APPELLEE: State of Louisiana, Department of Energy and Natural Resources
Blake Canfield Morgan D. Rogers Louisiana Department of Conservation and Energy Post Office Box 94396 Baton Rouge, Louisiana 70804 (225) 342-0572 Blake.Canfield@la.gov Morgan.Rogers2@la.gov COUNSEL FOR DEFENDANT APPELLEE: State of Louisiana, Department of Energy and Natural Resources
Pamela R. Mascari Troy J. Charpentier Lauren J. Rucinski Kean Miller LLP 400 Convention Street, Suite 700 Baton Rouge, Louisiana 70821 (225) 387-0999 Pam.Mascari@keanmiller.com Troy.Charpentier@keanmiller.com Lauren.Rucinski@keanmiller.com COUNSEL FOR APPELLEES/INTERVENORS: Venture Global CP2 LNG, LLC and Venture Global CP2 Express, LLC
Tod Everage Kean Miller LLP 909 Poydras Street, Suite 3600 New Orleans, Louisiana 70112 (504) 585-3050 Tod.Everage@keanmiller.com COUNSEL FOR APPELLEES/INTERVENORS: Venture Global CP2 LNG, LLC and Venture Global CP2 Express, LLC Maureen N. Harbourt Venture Global LNG, Inc. 400 Convention Street, Suite 500 Baton Rouge, Louisiana 70821 (225) 937-5274 mharbourt@venturegloballng.com COUNSEL FOR DEFENDANTS APPELLEES: Venture Global CP2 LNG, LLC and Venture Global CP2 Express, LLC DAVIS, Judge.
Healthy Gulf and six other plaintiffs 1 appeal the ruling of the district court
affirming the Department of Natural Resources, Office of Coastal Management’s
(OCM) decision to grant coastal use permits to two Venture Global limited liability
companies for the construction and operation of a liquefied natural gas liquefaction,
storage and export complex, and pipeline system in Cameron and Calcasieu parishes.
For the following reasons, we affirm OCM’s permit grants.
FACTS AND PROCEDURAL HISTORY
Venture Global seeks to build infrastructure in Louisiana’s coastal zone to
export liquified natural gas to the global market. The coastal zone is defined by
statute, includes all of Cameron Parish, and extends north to Sulphur, Louisiana.
The Venture Global companies applied for coastal use permits from OCM.
One permit was to construct a liquefied natural gas terminal; the other was for a
pipeline to supply it. The terminal project seeks to construct a 737-acre natural gas
liquefaction, storage, and export terminal adjacent to the Calcasieu ship channel in
Cameron Parish. The pipeline project anticipates constructing eighty-five miles of
pipeline and a forty-acre compressor station to connect the terminal project to an
existing pipeline system in Texas. Forty-five miles of this pipeline would pass
through the coastal zone. The project will affect large areas of wetlands and have
negative environmental impacts.
Venture Global is required to mitigate unavoidable permanent impacts to
vegetated wetlands. The project, however, will yield significant economic benefits
to Cameron Parish and the State of Louisiana. Venture Global estimates that the
project will provide $540 million in construction worker payroll over a four-year
1 We refer to these plaintiffs collectively as “Healthy Gulf” and refer to the plaintiff group in the singular. period, with the State collecting $75 million in sales tax from the project workforce.
It believes the state will collect around $24 million in income tax revenue during the
construction period.
Venture Global presented various alternative sites in its permit applications
for OCM’s consideration along with extensive environmental and storm surge
analyses. OCM approved both projects and issued two coastal use permits in March
2024.
The Federal Energy Regulatory Commission (FERC) conducted a parallel
review of these proposed projects. OCM relied on FERC’s work in arriving at its
decision to issue permits. FERC concluded that “approval of the proposed project,
with the mitigation measures recommended . . . would have some adverse
environmental impacts; however, all of these impacts would be reduced to less-than-
significant levels.”
As “person[s] adversely affected by a coastal use permit decision,” Healthy
Gulf appealed the permit decision to the district court in Cameron Parish where the
project is primarily located. La.R.S. 49:214.30(D). The district court affirmed the
issuance of the permits.
STANDARD OF REVIEW
The State and Local Coastal Resources Management Act governs both the
issuance and judicial review of coastal use permits. La.R.S. 49:214.30, 214.35.
Louisiana Revised Statutes 49:214.35(F) refers to the Louisiana Administrative
Procedure Act for additional rules of review. The relevant part of this Act, at La.R.S.
49:978.1(G), explains:
The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
2 (1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review.
Here, “[t]he scope of our appellate review is defined by the same sections of the
Administrative Procedure Act [La.R.S. 49:978.1(G)] as those for the district court,
the first court of appellate review.” Davis v. State Bd. of CPA, 13-514, p. 7 (La.App.
4 Cir. 12/18/13), 131 So.3d 391, 396.
At first glance, sections (G)(5) and (G)(6) supply overlapping, inconsistent
standards. However, the jurisprudence has clarified this:
Louisiana Revised Statutes 49:964(G)(5) and (6) [now redesignated as La.R.S. 49:978.1(G)(5) and (6)] address different considerations. Louisiana Revised Statutes 49:[978.1](G)(5) “is used in reviewing conclusions and exercises of agency discretion,” thus, this provision applies to questions of law and mixed questions of fact and law. Robert Force & Lawrence Griffith, The Louisiana Administrative Procedure Act, 42 La. L.Rev. 1227, 1285–86 (1982). Distinctly, [La.R.S. 49:978.1(G)(6)] “is used in reviewing the facts as found by the agency,” which, according to the statute provision, includes credibility determinations. Id.
Carpenter v. State, Dept. of Health and Hosps., 05-1904, p. 5 (La.App. 1 Cir.
9/20/06), 944 So.2d 604, 608. Consequently, the arbitrary and capricious standard
applies to an agency’s decision to issue or deny permits, but the “supported and
sustainable by a preponderance of evidence” standard applies to the agency’s factual
findings, factual inferences, and credibility determinations. The jurisprudence has
3 also called this preponderance of evidence standard a manifest error standard. Save
Ourselves, Inc. v. La. Env’t, 452 So.2d 1152 (La.1984); see also Holladay v. La. State
Bd. of Med. Exam’ 961740 (La.App. 4 Cir. 2/19/97), 689 So.2d 718, writ denied, 97-
730 (La. 5/1/97), 693 So.2d 740. Regarding the arbitrary and capricious standard,
arbitrary means an abuse of discretion and a decision that disregards evidence or its
weight, while a capricious decision is one whose conclusion is contrary to the
evidence or is not supported by any substantial evidence. Carpenter, 944 So.2d 604.
Additionally, a significant body of jurisprudence addresses the deference to
be given to an administrative agency’s decision. However, the legislature recently
amended La.R.S. 49:978.1 to specifically bar deference to an agency’s
interpretations of statutes or rules. Louisiana Revised Statutes 49:978.1(H) now
states:
In interpreting a state statute or rule, a court, administrative judge, or hearing officer presiding over a contested case, hearing, or appeal shall not defer to the agency’s interpretation of the statute or rule. The court, administrative judge, or hearing officer shall interpret the meaning of the statute or rule de novo.
As a procedural clarification, the change is retroactive.
The Louisiana Supreme Court has previously found “[i]t is elementary that a
court’s function is not to weigh de novo the available evidence and to substitute its
judgment for that of the agency.” Save Ourselves, Inc., 452 So.2d at 1159. However,
this “does not imply any derogation of the courts’ traditional primacy in interpreting
constitutional and statutory provisions and enforcing procedural rectitude.” Id. In the
past, some appellate courts have refused to defer to an administrative agency when
it failed to comply with regulations or guidelines. Pardue v. Stephens, 558 So.2d
1149 (La.App. 1 Cir. 1989). This jurisprudence does not conflict with the
Legislature’s deference amendment.
4 Previously jurisprudence stated “[c]onsiderable weight should be given to an
administrative agency’s construction and interpretation of its rules as provided for
under the statutory scheme that the agency is assigned to administer.” See Healthy
Gulf v. Sec’y, La. of Nat. Res., 24-286, p. 6 (La.App. 4 Cir. 12/23/24), 407 So.3d 705,
711. However, Louisiana Revised Statutes 49:978.1(G) specifically overrules this.
Thus, we must defer to an agency’s weighing of the facts and its conclusion (here to
issue permits) unless, after our independent review, the agency has misinterpreted
the governing law and guidelines.
STATE AND LOCAL COASTAL RESOURCES MANAGEMENT ACT AND PERMIT GUIDELINES
The State and Local Coastal Resources Management Act of 1978, La.R.S.
49:214.21 et seq., declared the State’s public policy to be to protect the coastal zone’s
resources and to support economic growth. Healthy Gulf claims OCM’s decision
violated La.R.S. 49:214.27 because it failed to consider Venture Global’s plan to
construct and operate both a compressor station and a carbon capture and storage
system (CCS) as part of the project.
However, this statute only states that the secretary shall develop a coastal
management program, including laws and regulations for the coastal zone. It does
not include any guidelines. It mandates the creation and implementation of
guidelines and specifies their goals. These goals not only include environmental
protection and minimizing impacts on coastal resources but also “[r]ecognize the
value of . . . areas particularly suited for industrial [or] commercial . . . development
and manage those areas to enhance their value to the people of Louisiana.” La.R.S.
49:214.27(4).
Louisiana Administrative Code, title 43, Pt. I, § 701, contains the guidelines
that complement the State and Local Coastal Resources Management Act. It states:
5 G. It is the policy of the coastal resources program to avoid the following adverse impacts. To this end, all uses and activities shall be planned, sited, designed, constructed, operated, and maintained to avoid to the maximum extent practicable significant:
....
2. adverse economic impacts on the locality of the use and affected governmental bodies;
5. destruction or adverse alterations of . . . wetland, . . . waterbottoms, beaches, . . . and other natural biologically valuable areas or protective coastal features;
10. adverse effects of cumulative impacts;
16. adverse alteration or destruction of . . . valuable habitats . . . ;
20. increases in the potential for flood, hurricane and other storm damage, or increases in the likelihood that damage will occur from such hazards[.]
Subparagraph H of Louisiana Administrative Code, title 43, Pt. I, § 701 states
that if the:
[maximum extent practicable modifier] is not complied with, the use will be in compliance with the guideline if the permitting authority finds, after a systematic consideration of all pertinent information regarding the use, the site and the impacts of the use as set forth in Subsection F above, and a balancing of their relative significance, that the benefits resulting from the proposed use would clearly outweigh the adverse impacts resulting from noncompliance with the modified standard and there are no feasible and practical alternative locations, methods, and practices for the use that are in compliance with the modified standard and:
a. significant public benefits will result from the use; or
b. the use would serve important regional, state, or national interests, including the national interest in resources and the siting of facilities in the coastal zone identified in the coastal resources program.
6 Also, the Administrative Code requires that the agency evaluate “locations,
designs, methods, practices, and techniques which may be required, following a
thorough review of [the guidelines], to avoid and minimize” adverse impacts and to
restore impacted sites. La.Admin.Code. tit. 43, Pt. I, § 724(B)(1)(a-c). The Code
requires mitigation as a condition to granting a permit when the activity causes a
“net loss of coastal resources ecological value that is anticipated to occur despite
efforts to avoid, minimize, and restore permitted/authorized impacts[.]”
La.Admin.Code. tit. 43, Pt. I, § 724(B)(1)(c). If the permit applicant applies for and
is issued a variance, mitigation is not required. Id.
Healthy Gulf also alleges that OCM violated La.Const. art. 9, § 1, which
The natural resources of the state, including air and water, and the healthful, scenic, historic, and esthetic quality of the environment shall be protected, conserved, and replenished insofar as possible and consistent with the health, safety, and welfare of the people. The legislature shall enact laws to implement this policy.
ASSIGNMENT OF ERROR
With this background, we now go to Healthy Gulf’s single assignment of
error, which is that the district court erred in affirming OCM’s decisions. Healthy
Gulf argues that OCM violated the Coastal Zone Act and the related guidelines in
the Administrative Code by failing to:
1) consider the pipeline’s compressor station and an integrated CCS system in its decision to issue the permit;
2) find whether alternative sites prohibited approval because they would have avoided more coastal zone impacts;
3) weigh the costs to fishermen from increased ship traffic blocking access to waterways and fishing grounds; and
4) meet its public trust duty under La.Const. art. 9, § 1 to give “full and careful consideration” to environmental, social, and economic costs.
7 ANALYSIS
1. Did OCM fail to consider the pipeline compressor station and integrated carbon capture system in its permit decision?
Healthy Gulf argues that OCM failed to meet its statutory obligations under
La.R.S. 49:214.27 and its regulatory obligations under La.Admin.Code. tit. 43, Pt. I,
§ 701. They claim OCM did not apply the coastal use guidelines for the project’s
compressor station and carbon capture system and failed to make findings on either.
Also, it argues that the flood wall constitutes a “levee” under the coastal use
guidelines, triggering additional analysis under more specific guidelines governing
levees. If these elements of the project were ignored entirely, any cost benefit
analysis without them would be inaccurate.
OCM’s “Basis of Decision” included the compressor station as part of the
pipeline project. OCM considered concerns made at the public hearing and
throughout the permitting process that the proposed site used gas powered generators
instead of electric ones. The “Basis of Decision” says full and fair consideration was
given to these concerns and comments.
OCM noted that the proposed project “shall be in conformance with all
applicable water and air quality laws, standards and regulations.” The decision
mandates that Venture Global obtain any other permits required by the Louisiana
Department of Environmental Quality before beginning construction. In the FERC
analysis upon which OCM relied, FERC found that the compressor station “would
not cause or contribute to any cumulative significant impact level . . . exceedances
for [National Ambient Air Quality Standards] . . . .” FERC found that an “electric
motor-driven compression at the Moss Lake Compressor Station would not provide
a significant environmental advantage over or equivalent reliability to the proposed
8 gas-powered . . . compression, in part due to the unpredictable reliability of electric
power transmission during severe weather events, including hurricanes.”
In addition, OCM addressed the wetlands impact of the compressor station.
OCM required Venture Global to mitigate for lost acreage and noted that Venture
Global had already purchased wetland mitigation credits, which “purchases will
satisfy the requirements for compensatory mitigation and allow permittee to conduct
the activities authorized under this permit.”
Likewise, OCM addressed the air quality and noise impacts of the compressor
station by incorporating the Final Environmental Impact Statement (FEIS)
performed by FERC as part of its obligation under the National Environmental
Policy Act. The FEIS conclusion was that the project would “not result in significant
impacts of air quality” and “would not result in significant impacts on nearby
residents of noise sensitive areas.”
Regarding the carbon capture facility, the Louisiana Department of
Conservation and Energy’s Office of Permitting, Underground Injection Control
Section, governs the permitting of such wells. See La.R.S. 30:1101, et seq.
Regardless, such technologies are intended to mitigate environmental harm, and
their inclusion would seem to bolster OCM’s decision to grant the pipeline project a
permit.
Healthy Gulf also takes issue with OCM’s finding that the concrete storm
surge protection wall around the compressor station was not a levee and did not
trigger the levee guidelines. The Administrative Code defines levees as:
any use or activity which creates an embankment to control or prevent water movement, to retain water or other material, or to raise a road or other lineal use above normal or flood water levels. Examples include levees, dikes and embankments of any sort.
La.Admin.Code. tit. 43, Pt. I, § 700.
9 The Code defines levees broadly but does not specifically mention storm
surge walls. The types of water controls mentioned are typically constructed adjacent
to bodies of water or waterways. Common usage of the term embankment does not
typically contemplate a concrete wall surrounding a complex of industrial
equipment, so it was reasonable for OCM to conclude that the project did not include
any levees. The relevant parts of the specific guidelines governing levees state:
D. Hurricane and flood protection levees shall be located at the nonwetland/wetland interface or landward to the maximum extent practicable.
F. Hurricane or flood protection levee systems shall be designed, built and thereafter operated and maintained utilizing best practical techniques to minimize disruptions of existing hydrologic patterns, and the interchange of water, beneficial nutrients, and aquatic organisms between enclosed wetlands and those outside the levee system.
La.Admin.Code. tit. 43, Pt. I, § 703. OCM reviewed extensive hydrology and storm surge reports submitted by
Venture Global. The “Basis of Decision” states that as part of its hydrologic
modification impact analysis, based on the information submitted, the “project
would have little or no negative impact of the local hydrology,” and the “hydraulic
modification resulting from the project did not adversely impact the quantity,
movement, distribution and quality of water within the watershed.” The OCM
further found that the “proposed activities are not anticipated to increase the risk of
flooding to the project area or areas surrounding the project.”
Venture Global submitted detailed plans and analyses for the components of
the pipeline project. FERC analyzed the compressor station, and OCM adopted the
analysis. In applying the guidelines, the “Basis of Decision” speaks of the pipeline
project more generally rather than piecemeal. But given the full context, OCM
considered the compressor station in its analysis. As the Louisiana Supreme Court
10 has stated, “we may uphold a decision of less than ideal clarity if the agency’s path
may reasonably be discerned, such as when its findings, reasons and exercise of
discretion are necessarily and clearly implied by the record.” Save Ourselves, Inc.,
452 So.2d at 1159. Consequently, we find that OCM fully considered the impacts of
the compressor station in granting the permit. Healthy Gulf’s argument on this issue
is without merit.
2. Did alternative sites with lesser impacts preclude the issuance of permits for the chosen sites?
Healthy Gulf argues that the primary selected sites for both projects did not
avoid adverse impacts “to the maximum extent practicable” and the costs
outweighed the benefits because alternative sites would have avoided impacts to the
Coastal Zone. Healthy Gulf notes that one of the alternative sites for the terminal
was almost entirely outside the Coastal Zone. This site would have eliminated the
need for a pipeline in the zone. When a proposed project cannot eliminate the
delineated adverse effects to the maximum extent possible, it must show that no
other “feasible and practical alternative location[]” exists that would avoid these
impacts. La.Admin.Code. tit. 43, Pt. I, § 701(H)(1).
OCM’s “Basis of Decision” stated that throughout the permitting process and
at the public hearing, it heard concerns that it did not have adequate information on
alternative terminal and pipeline sites, that Venture Global presented false and
unequal comparisons to justify the proposed primary sites, and that Venture Global
failed to fully compare the advantages and disadvantages of the alternative sites.
OCM said it gave full consideration to these comments.
Venture Global’s permit application reflected that the primary terminal site
consists of habitat previously disturbed by oil and gas exploration and extraction, fill
activities, cattle grazing, hay crop production, and other agricultural practices.
11 Venture Global further stated that wetland delineations performed at the primary
terminal site were of lower quality due to a history of human disturbance.
OCM analyzed route length, route length through wetlands and other habitats,
and the number of roads crossed, finding that the alternatives did not provide any
significant environmental advantage. It found that the approved pipeline route
avoided crossing the Sabine National Wildlife Refuge, public oyster seed grounds
in Calcasieu Lake, and the Cameron-Creole Watershed Levee. This was not true for
alternative sites.
The first alternative site affected four times the estuarine wetlands (as mapped
by the National Wetlands Inventory). For this site, the vessel transit time for ships
taking liquified natural gas from the terminal would be increased to eight or nine
hours instead of the three hours for the selected site. The increased transit time would
increase environmental impacts from additional vessel emissions. The second
alternative site overlapped the first, so it had similar issues with increased transit
time. It also impacted more wetlands than the primary site and impacted forestland
(which the selected site did not). Also, because the second site was at the intersection
of the Industrial Canal and the Calcasieu Ship Channel, it presented marine safety
and maneuverability challenges absent from the primary site. The third alternative
site would have affected more than five times as many acres of estuarine wetlands.
Also, the required pipeline route for this site would have been adjacent to more
residential and commercial areas and would have crossed federal and state wildlife
preserves and refuges.
Healthy Gulf claims that two alternative sites for the terminal would have
utilized less land in the coastal zone and therefore avoided more coastal zone
impacts. Yet the three alternative sites impacted larger areas of wetlands than the
permitted terminal site and had other disadvantages. Healthy Gulf’s interpretation of
12 the guidelines injects an element of arbitrariness, ignoring the need to balance
multiple factors. Healthy Gulf argues that if it is at all possible to force the
environmental impacts outside the coastal zone, then OCM should not grant the
permit. This is a misreading of the statutes and guidelines.
Such an interpretation violates the public policy in the State and Local Coastal
Resources Management Act which “[r]ecognize[s] the value . . . [of] areas
particularly suited for industrial, commercial, or residential development and
manage those areas so as to enhance their value to the people of Louisiana.” La.R.S.
49:214.27(C)(4). Also, it ignores the public policy “[t]o support . . . the need to
provide for adequate economic growth and development and the minimization of
adverse effects of one resource use upon another, and without imposing any undue
restriction on any user.” La.R.S. 49:214.22(3).
The Coastal Resources Management Act and the guidelines are not purely
environmental protection and resource conservation laws. It would always be true
that choosing an alternative site outside of the Coastal Zone would avoid impacts on
the zone. But this is not the only consideration. The permitting guidelines address
specific delineated impacts, not every impact. And the impacts are weighed against
the economic benefits, since the Act also aims to promote economic development.
Consequently, the evidence in the record, as well as the OCM’s analysis of
the alternative sites in its “Basis of Decision,” demonstrate that it was not arbitrary
and capricious in finding that the selected sites avoided certain impacts to the
maximum extent practical, or where not feasible, the benefits outweighed the costs.
Therefore, OCM’s issuance of the permits was not arbitrary and capricious. We find
Healthy Gulf’s argument on this issue lacks merit.
13 3. Did OCM fail to weigh the impact to fishermen?
Healthy Gulf argues that the Coastal Use Guidelines in La.Admin.Code. tit.
43, Pt. I, § 701 prohibit granting the permit unless the project avoids adverse impacts
to other Coastal Zone users such as commercial fishermen, or OCM finds that the
costs of unavoidable impacts are “clearly outweigh[ed]” by project benefits and that
“no feasible and practical alternative . . . methods and practices” would avoid those
impacts. Healthy Gulf argues that OCM did not conduct its own analysis and instead
relied on FERC’s review discussing potential impacts to commercial fishermen but
did not detail a mitigation plan.
Specifically, the relevant guidelines state that they shall have the goal to,
“Minimize, whenever feasible and practical, detrimental impacts on . . . fisheries by
such means as encouraging minimum change of natural systems and by multiple use
of existing canals . . . and other practical techniques.” La.R.S. 49:214.27(C)(5).
Further, they require that the project “avoid to the maximum extent practicable
significant . . . adverse economic impacts on the locality of the use and affected
governmental bodies[.]” La.Admin.Code. tit. 43, Pt. I, § 701(G)(2) (emphasis
added). Lastly, mitigation is required as a condition for granting the permit when
there is “any net loss of coastal resources ecological value that is anticipated to occur
despite efforts to avoid, minimize, and restore permitted/authorized impacts (i.e.,
unavoidable net loss of coastal resources ecological value), unless a variance is
granted pursuant to § 724.K.” La.Admin.Code. tit. 43, Pt. I, § 724(B)(1)(c).
Critically, the statutes and guidelines contain multiple qualifiers that Healthy
Gulf’s argument fails to emphasize. According to public policy and guidelines,
adverse impacts are to be minimized only where feasible and practical, and avoided
only where significant. Mitigation is required only when there is a “net loss of coastal
resources ecological value.” This is different from an adverse economic effect.
14 FERC’s review summarized impacts on commercial fishing stating:
Recreational and commercial fishing could be impacted by construction activities associated with the Project, primarily with the Terminal Facilities. Project activities are anticipated to occur during peak fishing . . . seasons, therefore, temporary impacts on . . . commercial users in the Calcasieu Ship Channel, which would likely include individuals from environmental justice communities, may occur in areas where construction is occurring. However, fishing activities are not restricted to the relatively small sections of the Project footprint that could provide potential fishing opportunities and due to the overall size of the waterway and the bay, access to and maneuverability within the Calcasieu Ship Channel would not be significantly affected by the use of barges . . . The construction impacts on . . . commercial fisheries would be temporary, lasting the duration of construction activities. Permanent impacts on recreational and commercial fisheries in the ship channel . . . may occur due to the loss of available fishing areas from operation of the Marine Facilities and LNG carrier traffic. Based on consultations between FERC and [Louisiana Department of Wildlife and Fisheries (LDWF)], impacts on shrimping vessels would be greatest near the Terminal south of the Firing Line where shrimping occurs year-round and vessel traffic and dredging associated with the Terminal Facilities would occur. Although we expect fish, crab, and shrimp species common to the bay could be present, the location does not have any unique features or habitat characteristics that would draw recreational or commercial users to this particular location. The Project area does not support special habitat that is different from the miles of surrounding habitat. Given these characteristics, and due to the overall size of the waterway, we conclude that these impacts . . . would not be significant. Additionally, Venture Global created the Calcasieu Pass Community Advisory Group to ensure that residents from all parts of Cameron Parish are represented and can communicate promptly and directly with Venture Global to express any concerns they have or to communicate adverse impacts that they or their neighbors have seen related to Calcasieu Pass. As part of the Community Advisory Group and as part of their general community relations, CP2 LNG states it would continue to seek stakeholder feedback and work with stakeholders, including shrimpers and fishermen, on ways that negative impacts may be avoided or mitigated. [emphasis added].
After consideration of all the data, concerns, and analysis, FERC concluded
that the operations and construction impacts of the project “would not have a
significant impact on commercial [or recreational] fisheries.” FERC’s
environmental impact statement concluded: “impacts on aquatic resources from
construction of the Terminal Facilities would not be significant,” and that “in
15 consultation with NMFS, we conclude that the overall impacts on fish would not be
significant.”
Elsewhere, FERC concluded, “[D]ue to the overall size of the waterway and
access to and maneuverability within the Calcasieu Ship Channel, fishing and
recreational activities would not be significantly affected by the proposed use of
barges.”
Also, FERC explained:
After the LNG transit is complete, fishing vessels could resume fishing activities throughout the Ship Channel. Typically, shrimp are most active at night when few vessels are using the Calcasieu Ship Channel. Given the Terminal Facilities proximity to the mouth of the Calcasieu River (about 1 mile) and the year-round use of the area by commercial fishing vessels, we conclude the increase in delays associated with LNG carrier transit would have a moderate, but not significant impact on commercial fishing.
Louisiana Administrative Code title 43, Part I, § 701(G) requires that the
project avoid “to the maximum extent practicable significant . . . adverse economic
impacts[.]” The record contains evidence that the disruption to the local fishing
industry will not be significant, and even if it were, the impacts are being avoided to
the maximum extent practicable. Therefore, on this issue we find that OCM did not
act arbitrarily or capriciously.
4. Did OCM owe a separate public trust duty under La.Const. art. 9, § 1?
Healthy Gulf argues that OCM’s decision violated the Louisiana Constitution
because it failed to give “full and careful consideration” to environmental, economic,
and social impacts. These impacts are raised in Healthy Gulf’s other arguments. This
argument seeks to apply different law to the same issues raised above.
The Coastal Resources Management Act and the guidelines governing the
issuance of coastal use permits are examples of legislation that seeks to fulfill the
aspirations of Louisiana Constitution Article 9, § 1. Like the guidelines, the
16 Louisiana Constitution does not require environmental protection at all costs, but
rather “insofar as possible and consistent with the health, safety, and welfare of the
people.” We find the “welfare of the people” includes economic development in
conjunction with preservation of resources. Further, we do not find the regulations
in the Coastal Resources Management Act or the guidelines to be any less stringent
or demanding than the public policy outlined in the Louisiana Constitution.
Therefore, Healthy Gulf’s argument is duplicative and addressed by our analysis
above.
CONCLUSION
After consideration of the arguments and review of the record, we find that
OCM did not act arbitrarily or capriciously in granting the permits at issue.
DECREE
The decision of the Louisiana Department of Natural Resources, Office of
Coastal Management’s granting of coastal use permits to Venture Global is affirmed.
Costs are assessed to Appellants, Healthy Gulf for a Better Bayou, Fisherman
Involved in Sustaining our Heritage, Habitat Recovery Project, Louisiana Bucket
Brigade, Micah 6:8 Mission, and Sierra Club.
AFFIRMED.