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Litigation: Delaware Riverkeeper, et. al. v. US Army Corps of Engineers

In October 2009, the Army Corps announced a Notice to Proceed with the Delaware Deepening project.  In November 2009, the Delaware Riverkeeper Network led four other citizen environmental organizations – National Wildlife Federation, New Jersey Environmental Federation, Delaware Nature Society, Clean Water Action in Pennsylvania – to file suit in Federal District Court in New Jersey against the Delaware deepening proposal.  DRN and the groups also filed a motion in Delaware District Court to intervene in and support the legal action brought against the deepening by the State of Delaware, including a motion for a preliminary injunction. 

 When the Army Corps announced that it was going to proceed with the Deepening project at this time, it was announcing its arbitrary and capricious intent to violate the Administrative Procedures Act, based on non-compliance with no less than 6 federal environmental and community protection laws as well as state environmental and community protection laws.  
 

In addition to being a flagrant violation of state and federal law, the Notice to Proceed and related action by the Army Corps (supported by Pennsylvania) to move forward with the deepening without needed Delaware and New Jersey permits and approvals is a stripping of state environmental protection authority that cannot be allowed to stand. 

While DRN fully supported (and indeed advocated for) legal challenges by New Jersey and Delaware, DRN did not believe the states’ legal challenges fully represented all of the legal violations, nor did the states represent all the interests that DRN and its partners bring to bear on the issue.   New Jersey’s action was broader than Delaware’s and included more environmental claims to be sure, but neither included the full array of environmental harms that is included in the Delaware Riverkeeper Network litigation, and it is impossible to know how the states will proceed strategically.   Further, DRN represents a holistic view of the watershed and the protection of the River and environments, not based on political boundaries, but on their importance to our members and the citizens of the region.

Responding to a motion for a preliminary injunction filed in the Delaware case the Army Corps was allowed to begin one 12 mile stretch of the project with an injunction imposed on the forward movement of the rest of the project.  That initial work began on March 1, 2010.

The New Jersey Judge denied a request by the Army Corps to transfer the New Jersey case to Delaware and therefore to allow the consolidation of the two cases.  As a result the two District Court cases proceeded on parallel tracks.  RN’s attorneys, on behalf of our coalition of clients, filed motions for summary judgment in both district courts.

Delaware Riverkeeper Network, on October 18, 2010, filed a notice of intent to sue regarding the deepening project and ensuring it does not violate the Endangered Species Act with regards to Atlantic Sturgeon, proposed October 6, 2010 for ESA listing by the National Marine Fisheries Service and identified as at particular risk from the deepening project.  

On November 4th, Judge Joel Pisano of the federal District of New Jersey denied our motion to stay proceedings pending the Army Corps of Engineers’ compliance with its obligations under the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA) to protect Atlantic sturgeon in the Delaware River. We filed this motion after the National Marine Fisheries Service proposed the Atlantic sturgeon for listing under the Endangered Species Act on October 6, 2010. Judge Pisano ruled that our motion to stay was premature because the Corps needs more time to fulfill its obligations under NEPA and the ESA and that granting the stay would cause economic harm to the Port of Philadelphia. He also stated that granting our motion to stay is unnecessary because the Corps is currently under an injunction issued by Judge Robinson of the federal District of Delaware in our litigation in front of that court, preventing the Corps from proceeding with further dredging. 
 
Notably, however, even prior to Judge Pisano’s ruling, the Corps had already canceled its contract process for the next phase of dredging that was intended to begin on December 1, 2010. We understand that the Corps does not intend to begin further work on the Deepening Project until August 2011, and that it is currently working to fulfill its obligations under the ESA to confer with the National Marine Fisheries Service on the Deepening Project’s impacts on Atlantic sturgeon as well as its obligations under NEPA to consider doing a Supplemental Environmental Impact Statement.

On November 17, 2010, Judge Robinson of the federal district court in Delaware issued  her decision on the parties’  cross-motions for summary judgment, rationalizing the Army Corps’ decision to proceed with a multi-year, multi-million dollar project to deepen the shipping channel by a full five feet as an action to “maintain” navigation. Her decision found for the Corps on all counts and enabled the Corps to avoid all responsibility for complying with environmental review, particularly review under Delaware state law. Simultaneously she also denied our motion to stay based on the Army Corps’ need to comply with the ESA and NEPA to ensure protection for the proposed endangered Atlantic sturgeon in the River. Judge Robinson lifted her injunction against the Deepening Project’s proceeding in all reaches of the River, giving the Army Corps the green light to proceed with its plans to deepen, straighten, and otherwise permanently degrade and alter the River and its habitats.  (See: DRN Press Release regarding Judge Robinson's decision)
 
DRN and our co-plaintiffs will file an appeal with the Third Circuit to challenge Judge Robinson’s decision, particularly her faulty reading of the Clean Water Act’s definition of the Army Corps’ ability to “maintain” navigation. 

On January 13, 2011, Judge Joel A. Pisano, District Judge for the United States District Court District of New Jersey issued his opinion in which he denied the motions for Summary Judgment filed by the State of New Jersey and five environmental organizations, including Delaware Riverkeeper Network.  In his decision, Judge Pisano gave the Army Corps deference for their actions and decisions, and used this as a firm basis upon which to rest his opinion.  The Delaware Riverkeeper Network does not believe this deference is factually or legally warranted and that the judge reached a flawed conclusion. 

Update: 2/1/2011

February 1, 2011, the Delaware Riverkeeper Network, the Delaware Riverkeeper, New Jersey Environmental Federation, Clean Water Action, Delaware Nature Society and National Wildlife Federation filed an appeal to the Third Circuit Court of Appeals of the ruling by Judge Sue Robinson of the U.S. District Court in the District of Delaware. 

Update: 2/16/2011

February 16, 2011, the Delaware Riverkeeper Network, the Delaware Riverkeeper, New Jersey Environmental Federation, Clean Water Action, Delaware Nature Society and National Wildlife Federation filed their appeal to the Third Circuit Court of Appeals of the January 13, 2011 ruling by Judge Joel A. Pisano, U.S. District Court in the District of New Jersey regarding the Delaware deepening project. This appeal is the second one filed by the five environmental organizations. The first appeal was filed on February 1, 2011 and challenged the ruling by Judge Sue Robinson of the U.S. District Court in the District of Delaware. 

 Update: 1/18/2012:

 Oral argument before the Third Circuit Court of Appeals took place on this date. The organizations await decision.

Outcome:

Sadly the courts sided with the Army Corps of Engineers and have allowed the project to proceed without further environmental assessment or consideration.