Northwest Environmental Advocates (NWEA) brought suit under the National Environmental Policy Act (NEPA)[1] challenging the adequacy of a 2003 Final Supplemental Integrated Feasibility Report and Environmental Impact Statement (FSEIS) prepared by the United States Army Corps of Engineers (the Corps) in connection with a project to deepen the Columbia River navigation channel and establish new disposal sites to accommodate dredged material. The Ninth Circuit affirmed the district court's grant of summary judgment in favor of the government, holding that the Corps' direct and cumulative effects analyses satisfied NEPA's "hard look" requirement with respect to all environmental and economic factors, including 1) the effects of removing Mouth of Columbia River (MCR) project sediment from the littoral system, 2) the potential for reduction of sediment availability in the estuary, 3) the cumulative impact of the channel deepening project on sediment availability and coastal erosion, 4) the cumulative impact of the channel deepening on salinity and toxicity, 5) the cumulative effect of the channel deepening project on sediment transport, and 6) the economic analyses.

The Columbia River navigation channel, used by transpacific container trade vessels, is currently forty feet deep. To accommodate increasingly heavier loads on ships, Congress, in 1989, initiated a Columbia River Channel Improvement Project directing the Corps to assess the feasibility of deepening the channel to a maximum of forty-three feet from Mile 3 to Mile 106.5. The Corps subsequently issued a Final Integrated Feasibility Report and Environmental Impact Statement (FEIS) in 1999 that described the project's environmental and economic impacts and alternatives. The 1999 FEIS identified three potential disposal sites to hold dredged material from the channel deepening project and the separate Mouth of the Columbia River (MCR) dredging project: a Shallow Water Site, a Deep Water Site, and the North Jetty Site. The Shallow Water Site and the North Jetty Site are both "dispersive" sites located within the Columbia River's "littoral cell," which includes 100 miles of shoreline from Tillamook Head, Oregon, to Point Greenville, Washington.[2] Historically, the Columbia River carries sand from inland areas to the estuary, where the sand is in turn carried to the coastal beaches. Over the past 120 years, natural processes and human activities have reduced the amount of sand deposited throughout the littoral cell, exacerbating erosion on the Oregon and Washington coasts.[3] A portion of sediment deposited at these sites would naturally migrate out of the site, but would remain within the Columbia River's sediment transport system. Sediment deposited at the Deep Water Site, by contrast, is considered "inert" because it is dumped beyond the Columbia's littoral cell and thus effectively removed from that cell's sediment transport system.

Discordant federal agency opinions initially undercut the 1999 FEIS. The U.S. Fish and Wildlife Service (FWS) issued a "No Jeopardy" Biological Opinon (BiOp) on the project's potential impact on certain plant and animal species listed under the Endangered Species Act (ESA). NOAA's National Marine Fisheries Service (NOAA Fisheries) initially found the project would not jeopardize salmonids, but later retracted its favorable BiOp, citing new information. In 2002, based on new studies by the Corps, NOAA and FWS both issued final BiOps concluding that the project would not adversely affect ESA listed species.

The 1999 FSEIS also met resistance from the states of Washington and Oregon. Washington and Oregon denied certification of the project under Section 401 of the Clean Water Act[4] and the Coastal Zone Management Act,[5] citing concerns about the project hindering sediment transport, the Dungeness crab, and consistency with existing coastal programs. The Corps began preparation of a supplemental environmental impact statement (SEIS) to address those concerns. During consultations that followed, the government hired the non-profit Sustainable Ecosystems Institute (SEI) to review the project's environmental impacts. Throughout 2002, the Corps received and responded to comments on the draft SEIS. In January 2003, the Corps issued an FSEIS to supplement and update the 1999 FSEIS, which it incorporated by reference. After reviewing the revised and expanded analyses in the 2003 FSEIS, Washington and Oregon withdrew their objections and certified the project. On January 9, 2004, the Corps issued a Record of Decision approving the channel deepening project.

NWEA filed suit in district court alleging that NOAA Fisheries had violated the ESA by failing to study adequately the project's impact on protected salmon. NWEA filed amended complaints arguing that 1) the Corps' 2003 FSEIS and 1998 Dredged Material Management Plan did not sufficiently assess project impacts as mandated by NEPA; 2) the Corps was required to prepare a SEIS under NEPA; and 3) NOAA Fisheries' revised BiOp failed to comply with applicable law. The Ports of Vancouver, Woodland, Kalama, Longview, Portland, and St. Helens were granted permission to intervene as defendants. On cross-motions for summary judgment, the district court granted the government's motion and denied NWEA's motion. On the alleged NEPA violations, the district court ruled that the Corps had complied with NEPA by taking a "hard look" at and the project's direct and indirect effects. The court found that because the channel deepening project and the MCR project were not "connected actions" under 40 C.F.R. § 1508.25(a)(1), the channel deepening project EIS needed only to consider the MCR in the context of "cumulative impact." On the alleged ESA violations, which NWEA did not challenge on appeal to the Ninth Circuit, the court ruled that NOAA could justify its findings and its analysis was not arbitrary and capricious. The court struck and declined to consider NWEA's extra-record submission of a declaration by economist Ernest Niemi, ruling use of such evidence improper.[6]

The Ninth Circuit reviewed de novo the district court's summary judgment rulings, applying an arbitrary and capricious standard[7] to determine whether the Corps' 2003 FSEIS took a "hard look"[8] at the potential environmental consequences of the project and otherwise satisfied NEPA's procedural obligations.[9] The Ninth Circuit reviewed the district court's decision to exclude extra-record evidence for abuse of discretion.[10]

Cumulative Impact on Coastal Erosion

On appeal to the Ninth Circuit, NWEA's principal contention was that the Corps failed to take a "hard look" at the cumulative impact on coastal erosion. The Ninth Circuit rejected that contention, holding that the Corps did, through responsive amendments and further study, take the required hard look at coastal erosion. The court noted that the Corps adequately addressed the two mechanisms that could potentially remove sand from the littoral system: direct loss from Deep Water Site disposal of MCR project spoils and indirect loss from altered river hydraulics as a result of channel deepening. The Corps structured its plans to minimize use of the Deep Water Site, and found that channel deepening would not alter the rate of sediment flow in the river or its estuary.[11] The court also noted that the Corps considered the channel deepening project in the context of the MCR project, as necessary under a proper cumulative impacts analysis.

The Ninth Circuit first addressed NWEA's NEPA claim that the Corps failed to adequately address the issue of direct sediment loss through Deep Water disposal. The court held the Corps was "fully aware" of the potential erosive effects under the Deep Water disposal option for MCR project spoils, and acted on its knowledge by "conscientiously structur[ing] its disposal plan to minimize" use of that site.[12] As the Corps weighed numerous ocean disposal options, the court found, the agency was faithfully concerned about minimizing erosion and keeping sediment within the littoral zone whenever possible. Disposal at the Deep Water Site was the "non-preferred last option," to be used only after capacities were exhausted at the Shallow Water and North Jetty sites.[13] The court held that NWEA's criticisms exaggerated the amount of sediment that would be disposed of at the Deep Water Site, for the FSEIS only authorized disposal of all MCR dredge material there for "contingency planning purposes" or as a "worst case scenario."[14] The court held that the Management and Monitoring Plan for the Deep Water Site, which the Environmental Protection Agency (EPA) uses to define and limit dumping practices, further ensures that the site will only be used for excess spoils.

The Ninth Circuit held that just as the Corps' 2003 FSEIS took a hard look at the potential erosive effects of MCR project Deep Water spoil disposal, it also took a hard look at erosive effects of channel deepening project Deep Water spoil disposal. The court found persuasive the Corps' alterations reducing dredging volumes between the 1999 FSEIS and the 2003 FSEIS. The revised 2003 FSEIS concluded that the volume of sand to be dredged, relative to the total volume in the riverbed, was too miniscule to have an environmental effect. The court agreed, holding that the Corps took a sufficiently hard look at the cumulative effects of the channel deepening project's sediment removal by considering deep water disposal of both MCR project spoils and channel deepening project spoils

The Ninth Circuit then moved to the NWEA's NEPA claim that the Corps failed to adequately assess the issue of estuarine sediment loss through altered river hydraulics and sediment transport rates. The court held the 2003 FSEIS treated this possibility explicitly and thoroughly in response to Washington and Oregon's concerns, and properly concluded that channel deepening would have no significant impact on sediment transport. The court found persuasive the Corps' readiness to accept input from stakeholders and conduct responsive new studies. The FSEIS found that Federal Columbia River Power System dams, not channel deepening, would be most determinative of river flow rates and thus determinative of sediment availability. The court distinguished this case from Klamath-Siskiyou Wildlands Center v. Bureau of Land Management, where the Bureau of Land Management divided a timber sale into four separate sales and prepared EISs for only two, thereby obscuring the cumulative impact of successive, related actions.[15] In this case, the court noted, the 2003 FSEIS examines the project's impacts over an extended period of time and in conjunction with the MCR project and federal dams. The court was further persuaded by the fact that EPA validated the Corps' findings and that Washington and Oregon eventually certified the project.[16]

Cumulative Impact of Past and Future Actions on Salinity and Sediment Transport

NWEA argued that the Corps failed to evaluate the cumulative impact of the channel deepening project in light of past and future actions, particularly with respect to salinity increases and sediment transport and accretion. The Ninth Circuit rejected both claims. As to salinity increases, the court held that a detailed analysis of past project impacts was unnecessary because it would not have aided the Corps in weighing current alternatives since the channel deepening project would marginally impact salinity.[17] Furthermore, the 2003 FSEIS did include historical data on salinity increases associated with the MCR project and, even more persuasively, citations to present-day studies, which indicated that the channel deepening would minimally affect salinity. Likewise, the court held the Corps' assessment of existing MCR jetties and upstream dams was sufficient to inform its sediment transport analysis. The Corps found the channel deepening project's incremental contribution to altering sediment flow would be negligible as compared with the substantial effect of upstream dams and MCR jetties. The court also held the Corps' treatment of foreseeable future impacts was adequate; the Corps recognized the ongoing impacts of the MCR project and applied lessons learned from the MCR project to develop a disposal plan that minimized coastal erosion.

Direct Impacts: Toxicity and Salinity

NWEA contended that the Corps failed to adequately address the direct impacts of the channel deepening project on toxicity and salinity. The Ninth Circuit did not agree, and held that the Corps' assessments were sufficient. NWEA argued that the Corps' failure to sample sediment toxicity outside the navigation channel rendered its analysis deficient, but the court upheld the Corps' findings. Noting the 2003 FSEIS' finding that samples of nearshore sediments would be of little help in determining the channel deepening project's impact on river toxicity since "nearshore sediments are expected to be unaffected," the court characterized further sampling as "unnecessary."[18] Holding that the Corps analysis of toxicity was sufficient, the court also found it persuasive that the independent panel from SEI validated the Corps' analysis. NWEA further argued that the Corps underestimated the project's direct impact on estuary salinity because the agency used outdated models and outdated bathymetric data. The court disagreed, upholding the Corps' conclusion, noting that NWEA did not explain what made the old model and old data ineffective. It was sufficient, the court held, that three separate models, from three different institutions[19] supported the Corps' finding.

Economic Impacts

NWEA asserted that because the Corps' cumulative impacts analysis was flawed, its economic analysis must have as a consequence "ignor[ed] substantial project costs and ways of avoiding those costs."[20] Having already reviewed and rejected NWEA's cumulative impact arguments, the Ninth Circuit declined to reconsider those "refashion[ed] substantive criticisms"[21] in the context of economics. The court held adequate the Corps' consideration of costs associated with coastal erosion and potential declines in shipping traffic. The court also held that the Corps did not, contrary to NWEA's assertion, need to segregate benefits accruing to foreign entities from those that accrue to domestic entities. It was proper, the court held, for the Corps to aggregate the benefits. Despite NWEA's argument that a "multi-port analysis" would reveal whether any purported gains came at the expense of other domestic ports, the court did not find such an analysis critical to the Corps' cost-benefit calculus particularly because the Corps anticipated that the project would result in regional overall reductions in shipping costs. The agency hired two independent expert panels to review the costs and benefits of the project as identified by the agency, and both panels found the Corps' analysis reasonable.[22]

The Ninth Circuit finally held that the district court did not abuse its discretion by striking the extra-record declaration of economist Ernest Niemi, the stated purpose of which was to "determine whether or not the FSEIS provides a misleading description of the Project's potential economic impacts."[23] After setting forth a narrow set of exceptions[24] to the general presumption against consideration of extra-record evidence during administrative review, the court concluded that NWEA's proffered evidence did not come within any of those exceptions.

Throughout the opinion, the Ninth Circuit limited the scope of its review to whether the agency took a "hard look." The court scrupulously declined to weigh the wisdom of the Corps' actions or require of the agency more than the minimum analyses mandated by NEPA. The court held the Corps took a hard look at all cumulative, direct, and indirect environmental and economic impacts of the channel deepening project.

Judge Fletcher Dissent

Judge Fletcher filed a lengthy dissent detailing her concerns with the "inconsistency and ambiguity" of the Corps' plans.[25] Whereas the majority held the Corps had taken a hard look at all aspects of the channel deepening project, Judge Fletcher disputed that the Corps took a sufficiently hard look at any of the economic or environmental issues. Judge Fletcher faulted the Corps' economic analysis (finding it generally undervalued costs and overvalued benefits), its cumulative effects analysis (finding it did not sufficiently address the consequences of extensive Deep Water Site disposal), and its toxicity and salinity analyses (finding them hasty and lacking ample data). Judge Fletcher also thought the district court abused its discretion by declining to consider Niemi's extra-record declaration, for without it the court could not assess the full range of potential omissions and inaccuracies in the agency's analysis. Generally, Judge Fletcher found the Corps' disposal scheme exceedingly vague, too dependent on too many variables. The specter of severe coastal erosion, a potential consequence of the channel deepening project and associated spoil disposal scheme, pervaded Judge Fletcher's dissent.