Memorandum Asking for Preliminary Injunction and Commencement of Supplemental
EIS Studies
The Caernarvon Freshwater Diversion Project commenced releasing freshwater from the
Mississippi River into the Breton Sound area in 1991 for the purposes of stabilizing salinity for
oyster production and supplying sediment to maintain and build marshland. The United States
Army Corps of Engineers (Corps) completed their study of the feasibility of this project in 1984,
including an Environmental Impact Statement (EIS) required by the National Environmental
Policy Act of 1970 (NEPA). Their studies and rationale for building the diversion failed to take
into account newly studied detrimental effects that nutrient-rich river water has on the root
development of marshland flora. Plaintiffs contend that the Caernarvon Diversion should be
preliminarily enjoined until the Corps completes a Supplemental Environmental Impact
Statement (SEIS) to address this heretofore unexamined threat.
Although there is no action recognized within NEPA itself to challenge the Corps, US
Federal Courts have established that citizens, environmental groups, and corporations can sue
federal agencies for NEPA violations using the Administrative Procedure Act (APA). The APA
prohibits agencies from actions that are “without observance of procedure as required by law.” 5
U.S.C.A. § 706(2)(D). The Corps has not observed NEPA’s procedural requirements by failing
to account for the harmful effects that nutrient-rich river water has on marshland root structures
and this suit is brought under authority of that Act.
NEPA prohibits uninformed, rather than unwise, agency action. Robertson v. Methow
Valley Citizens Council, 490 US 332 (1989). The Corps has made exactly such an uninformed
decision by allowing the operation of the Caernarvon diversion without knowing of the potential
harm involved. Although standards for EIS challenges differ across federal circuits, the United
States Court of Appeals for the Fifth Circuit has held that a challenge can be sustained if it
“raises new concerns of sufficient gravity such that another, formal in-depth look at the
environmental consequences of the proposed action is necessary.” Louisiana Wildlife
Federation, Inc. v. York, 761 F.2d 1044, 1051 (5th Cir. 1985). That is, whether it “provides
a seriously different picture of the environmental landscape such that another hard look is
necessary.” Id. Additionally, the Supreme Court of the United States expressed approval of 40
CFR § 1502.9(c)(1)(ii), a regulation issued by the Council on Environmental Quality, which
demands undertaking a SEIS when significant new circumstances or information arises. Marsh v.
Oregon Natural Resources Council, 490 US 360 (1989). Recent studies indicate that river water
saturated with nutrients from agricultural fertilizers causes marshland flora to develop shallow,
poorly formed root structures that do not deeply anchor the plants to the soil. This soil is then
easily washed away by flooding, storms, and the diversion waters itself because there are no
well-formed root structures to hold it in place. Replacing deeply-rooted plants with shallowrooted ones is causing a seriously different picture of the environmental landscape that the US
Fifth Circuit and Supreme Court have held would merit another hard look by the Corps, and
failing to address this issue would amount to conduct that is arbitrary and capricious. A further
explanation of this instant threat follows.