Government must analyze impact on Atlantic sturgeon

Listen to this article

Where the United States Department of Transportation Maritime Administration, or MARAD, argued that a project would have “no effect” on listed species, but there was no evidence evidencing this decision and it was not supported by the evidence, MARAD must determine whether the project is “likely to jeopardize the continued existence” of Atlantic sturgeon populations in the James River.

Background

The Center for Biological Diversity sued MARAD for failure to engage in Endangered Species Act, or ESA, consultation on the Marine Highway Program in its entirety and grants issued under the Program’s James River project. Plaintiff requests that the court declare the program in violation of the ESA and order defendants to consult on the program and the James River Project grants. Pending before the court are cross-motions for summary judgment.

Standing and mootness

A plaintiff is required to have standing and the claims must not have become moot. An organization has standing to sue on behalf of its members when “(a) its members would otherwise have standing to sue in their own right; (b) the interests [the organization] seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” The court finds that all three elements are satisfied here.

Plaintiff must also establish both that its requested relief is causally connected to plaintiff’s individualized injury and that there is “some possibility” the court granting such relief will redress that injury. The court finds that it has done so.

Defendants contend that grants issued under the James River Project are moot because “funding has been disbursed.” This argument lacks merit as to the FY 2018 James River project grant because MARAD retains discretion to “recover funds” for three years after “submission of the final [grant] expenditure report.” Moreover, this is an issue “capable of repetition, yet evading review.”

Notice

Under the EPA’s citizen suit provision, plaintiff must provide a 60-day notice of an alleged violation prior to commencing litigation. Here, because the FY 2018 grant was the only grant specified in plaintiff’s notice of intent to sue, plaintiff’s grant-specific challenge is limited to the FY 2018 James River project. As for the FY 2021 grant, the court agrees that plaintiff did not give adequate notice.

Program

Plaintiff’s first argument is that defendants violated the ESA by failing to conduct a “programmatic consultation” on the Marine Highway Program in its entirety. However, the Marine Highway Program is not the kind of program that constitutes a discrete agency action triggering consultation.

Instead, the program is a collection of actions — as plaintiff recognizes — starting with the final rule implementing the program, and thereafter consisting of “designations, ongoing grants, and other mechanisms.” The core flaw in plaintiff’s argument is that while any of these agency actions individually may warrant consultation, this does not mean that collectively they warrant programmatic consultation.

Plaintiff also contends that “MARAD’s implementation of the [Marine Highway Program] is an agency action” necessitating programmatic consultation. Assuming plaintiff is referring to MARAD’s promulgation of the final rule implementing the program — which is clearly an agency action — this challenge would still be unsuccessful. First, as a threshold matter, consultation as to a single agency action would, by definition, not be “programmatic,” and therefore not provide plaintiff the relief it seeks. And any challenge to the program’s implementing regulation is not ripe.

Grant

Plaintiff contends that MARAD violated the ESA by failing to consult with the services on its issuance of the FY 2018 James River project grant. MARAD contends that it was under no duty to consult because it determined that the issuance of the FY 2018 James River project grant would have “no effect” on listed species.

This explanation is unpersuasive. There is no evidence contemporaneous with MARAD’s decision to issue the FY 2018 James River project grant of its purported “no effect” finding. More importantly, even if MARAD made such a “no effect” determination, it is not supported by the evidence. The court will order MARAD to engage in the required consultation on the FY 2018 grant to determine whether it is “likely to jeopardize the continued existence” of Atlantic sturgeon populations in the James River.

Plaintiff’s motion for summary judgment granted in part, denied in part. Defendant’s motion for summary judgment granted in part, denied in part.

Center for Biological Diversity v. United States Maritime Administration, Case No. 4:21-cv-00132, March 31, 2023. EDVA at Newport News (Hanes). VLW 023-3-185. 28 pp.