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State of New Jersey, Department of Environmental Protection, et al v. United States Army Corps of Engineers

January 13, 2011

STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, ET AL., PLAINTIFFS,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, ET AL., DEFENDANTS, PHILADELPHIA REGIONAL PORT AUTHORITY, DEFENDANT-INTERVENOR.



The opinion of the court was delivered by: Pisano, District Judge:

NOT FOR PUBLICATION

OPINION and

Presently before the Court are motions for summary judgment by plaintiffs the Delaware Riverkeeper, Delaware Riverkeeper Network, Delaware Nature Society, National Wildlife Federation, New Jersey Environmental Federation, and Clean Water Action (collectively, "DRN") (Docket Entry no. 83) and plaintiff the State of New Jersey, Department of Environmental Protection ("NJDEP," and collectively, "Plaintiffs") (Docket Entry no. 81). Defendants the U.S. Army Corps of Engineers, et. al. (the "Corps") and the Philadelphia Regional Port Authority ("PRPA," and collectively, "Defendants") have opposed the motions and responded with their own cross-motions for summary judgment (respectively, Docket Entry nos. 87 and 88). For the reasons that follow, Plaintiffs' motions for summary judgment are denied and Defendants' cross-motions for summary judgment are granted.

I. Procedural History

On November 2, 2009, NJDEP filed this action pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, to challenge determinations made by the Corps under the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., the Coastal Zone Management Act ("CZMA"), 16 U.S.C. § 1451 et seq., the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq., and the Clean Air Act ("CAA"), 42 U.S.C. § 7401 et seq., in connection with the Delaware River Mainstem and Channel Deepening Project to deepen the Delaware River (the "Project"). The only non-federal sponsor of the Project, PRPA, subsequently intervened as a defendant. On March 12, 2010, the Court consolidated this action with a federal suit presenting substantially identical issues of law and fact that was filed by DRN.*fn1 NJDEP and DRN filed their motions for summary judgment on August 12, 2010. On November 4, 2010, the Court denied a motion to stay filed by DRN.

Three days before NJDEP filed its complaint in the instant case, litigation regarding the Project began in Delaware when the Delaware Department of Natural Resources and Environmental Control filed suit against the Corps in the District of Delaware to halt the deepening (the "Delaware Action"). The State of New Jersey and PRPA intervened in the Delaware Action, where the court originally allowed the first phase of the deepening project, located entirely in the State of Delaware, to proceed but enjoined the rest of the deepening project. Recently, the Honorable Judge Sue Robinson of the District of Delaware lifted the injunction and entered judgment in favor of the Corps and PRPA.

II. Background

The Delaware River provides a commercial waterway from Trenton, New Jersey to the Atlantic Ocean. See Administrative Record ("AR") 000011.*fn2 There are major ports at Philadelphia, Pennsylvania, at Camden, New Jersey, and at Wilmington, Delaware. Id. Combined, the ports along the Delaware River support an estimated 75,000 jobs, generate billions of dollars in terms of economic revenue and payroll wages, and contribute more than $150 million in state and local taxes. Del. Dep't of Nat. Res. & Envtl. Control v. U.S. Army Corps of Eng'rs, 681 F. Supp. 2d 546, 549 (D. Del. 2010) (hereinafter "Del. Inj. Opinion"). Congress has long recognized the economic importance of the Delaware River's commercial capacity, authorizing improvements to the river as early as 1836. AR 000011. To sustain the vital economic contributions of the ports, Congress has authorized the Corps to maintain the Delaware's main navigation channel at a sufficient depth to allow vessel navigation. Since World War II, the Corps has maintained the channel at a depth of 40 feet.*fn3 Del. Inj. Opinion, 681 F. Supp 2d at 549.

As commercial vessels became larger and required deeper drafts, Congress directed the Corps in 1983 to determine whether it was in the federal interest to deepen the Delaware River channel. After years of study, the Corps issued a Final Interim Feasibility Report and Environmental Impact Statement in 1992 (the "EIS") in which it recommended that a depth of 45 feet was necessary to accommodate the current trend of vessel drafts. See AR 002459 (syllabus). Accepting the recommendations included in the EIS, Congress authorized the Corps to deepen a 102-mile stretch of the Delaware River, from the Philadelphia and Camden ports to the Atlantic Ocean, to 45 feet, see Water Res. Dev. Act of 1992, Pub. L. No. 102-580, § 101(6), 106 Stat. 4797, 4802, and has appropriated significant funds towards the Project's estimated total cost of $300 million.

After further coordination with federal and state environmental resource agencies, the Corps addressed certain residual concerns raised by the EIS and subsequent environmental investigations in a 1997 Supplemental Environmental Impact Statement (the "SEIS"). AR 017724 (abstract). A notice and comment period on the SEIS followed, and in 1998 the Corps issued a new Record of Decision ("ROD"). See U.S. Army Corps of Engineers, Philadelphia District, Delaware River Main Channel Deepening Project, available at http://www.nap.usace.army.mil/cenap-pl/drmcdp/overview.html (last visited January 3, 2011). In 2008, PRPA partnered with the Corps as the new non-federal sponsor for the Project. See AR 044610-52 (Project Partnership Agreement). Acknowledging the time that had elapsed since the SEIS, the Corps then offered a month-long public comment period for a new environmental assessment on project changes and new environmental information, see AR 024043-45 (Dec. 17, 2008 public notice). In April 2009, the Corps issued its final Environmental Assessment ("EA"), which updated several environmental studies. See AR 024931. The EA concluded that any changes to the Project were not substantial enough and any new information was not significant enough to warrant another supplemental environmental impact statement. AR 024931.0155.

In 1996, the Corps provided a consistency determination to NJDEP pursuant to the CZMA. AR 025011-13; see 16 U.S.C. § 1456(c)(1)(A). After NJDEP and the Corps signed a memorandum of understanding, NJDEP certified that the Project was consistent with the approved New Jersey Coastal Zone Management program in 1997. See AR 025027-34. In 2002, NJDEP advised the Corps that it was revoking its CMZA concurrence due to alleged substantial changes that had occurred in the previous five years. AR 025047-51. In response, the Corps agreed to provide supplemental information to the 1997 concurrence. AR 025052-53. After receiving letters from the NJDEP in 2008 seeking supplemental coordination under CZMA, see AR 023974 and AR 025055, and in 2009 seeking a supplemental CZMA consistency determination, see AR 025128-30, the Corps issued a memorandum for record, AR 025147-52, in which it concluded that there had been no substantial changes to the Project or significant new information that would warrant issuing a supplemental consistency determination to NJDEP.

The Corps first addressed whether the Project would conform to the applicable state implementation plans ("SIPs"), as required by the CAA, 42 U.S.C. § 7506(c)(1), in its Delaware River Main Channel Deepening Project, General Conformity Analysis and Mitigation Report in 2004. AR 025211-359. In August 2009, the Corps prepared a Draft Conditional Statement of Conformity for public comment. AR 025506-09. After reviewing objections by NJDEP, DNR, and others, the Corps prepared a new proposal in a Draft Statement of Conformity, AR 025658-6, and a new General Conformity Analysis and Mitigation Report, AR 025525-657, in November 2009. A final determination was issued on December 30, 2009 in a Final Statement of Conformity (the "Conformity Determination") wherein the Corps stated that the Project would conform to the applicable SIPs pending the purchase of emission reduction credits to offset nitrogen oxide emissions generated during the dredging. AR 025888-92.

III. Standard of Review

A. Summary Judgment

To prevail on a motion for summary judgment, the moving party must establish "that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The district court must determine whether disputed issues of material fact exist, but the court cannot resolve factual disputes in a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

In determining whether a genuine issue of material fact exists, the court must view the facts in the light most favorable to the non-moving party and extend all reasonable inferences to that party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Stephens v. Kerrigan, 122 F.3d 171, 176-77 (3d Cir. 1997). The moving party always bears the initial burden of demonstrating the absence of a genuine issue of material fact, regardless of which party ultimately would have the burden of persuasion at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Once the moving party has met its opening burden, the non-moving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. at 324. Thus, the non-moving party may not rest upon the mere allegations or denials of its pleadings. Id. "[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322.

Once the moving-party has demonstrated to the court the absence of a material fact at issue, the Supreme Court has stated that the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts...." Matsushita, 475 U.S. at 586-87 (citations omitted). In other words, "[i]f the evidence [submitted by the non-moving party] is merely colorable ... or is not significantly probative ... summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).

The Supreme Court has specifically recognized that "[o]ne of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupportable claims or defenses, and [ ] that [the rule] should be interpreted in a way that allows it to accomplish this purpose." Celotex, 477 U.S. at 323-24. Thus, "[w]hen the record is such that it would not support a rational finding that an essential element of the non-moving party's claim or defense exists, summary judgment must be entered for the moving party." Turner v. Schering-Plough Corp., 901 F.2d 335, 341 (3d Cir. 1990).

B. Administrative Procedures Act

Judicial review under the Administrative Procedures Act ("APA"), the statutory scheme that governs this Court's review of the agency action at issue in this case, is limited. APA section 706(2)(A) states in pertinent part:

The reviewing court shall-

(2) hold unlawful and set aside agency action, findings, and ...


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