With a wave of new legal actions, national environmental organizations have indicated a keen interest in challenging maritime infrastructure and transportation programs and projects. These groups generally allege that the federal government inadequately considered environmental and public interest issues in approving and implementing waterway infrastructure programs. If successful, these actions could add new hurdles to vital efforts to maintain, expand, and modernize our nation’s ports and waterways—at a time when port congestion and supply chain challenges have shown the valuable role this infrastructure plays in the national and global economy.

Center for Biological Diversity Alleges “Programmatic” Failures in Marine Highway Program

Last week, the Center for Biological Diversity filed a lawsuit against the federal government asserting that many marine infrastructure and transportation projects located in critical habitats received, or might receive, grant funds without the proper environmental consultations being conducted. See Center for Biological Diversity v. United States Maritime Administration et al, 4:21-cv-00132 (Oct. 12, 2021) (E.D. Va.).

Transporting goods along America’s coasts, often referred to as “short sea shipping,” has long been cited as a solution to mitigate highway and rail congestion and reduce air emissions.¹ In 2007, Congress directed the U.S. Maritime Administration (“MARAD”) to create a short sea shipping program to “relieve landside congestion along coastal corridors.”² MARAD implemented the program as the “America’s Marine Highway Program” and designated twenty-six marine highway routes, which generally parallel surface highway routes (e.g., Marine Highway 10 parallels Interstate Highway 10).³

In addition to establishing the marine highway system, the Program offers grants to public and private entities to implement projects related to vessel, port, and onshore facilities that promote or support short sea shipping services, such as barge and container services.⁴ Since the Program was created, over $40 million has been awarded to various entities to implement such projects. In 2020, Congress appropriated approximately $11 million to MARAD for Marine Highway Grants.⁵ In May 2021, MARAD announced the availability of such funds and established the selection criteria and application requirements for the grants.⁶

On October 12, 2021, the Center for Biological Diversity filed a lawsuit in the Eastern District of Virginia against MARAD asserting that many current and future projects funded or potentially funded by Marine Highway Grants are in habitats for animals and plants protected by the Endangered Species Act (“ESA”) and that MARAD has failed to consult with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service (together, the “Services”) as required by ESA Section 7. The James River Expansion Project is one such project—the Center said in its complaint—that could lead to congested waterways and increased pollution in the James River, which is designated critical habitat for an endangered sturgeon species. That project was awarded $1.8 million in 2018 and has applied for additional funding under the 2021 round of grants.

The Center further asserted that MARAD has failed to programmatically consult with the Services to assess the cumulative effects of its actions under America’s Marine Highway Program on listed species and to guide the implementation of the Program as a whole. It notes that such programmatic review “provides the only way to avoid piecemeal destruction of species and habitat.” The Center asked the court to declare that MARAD is violating ESA Section 7 and require MARAD to complete consultations with the Services by a certain date.

Programmatic challenges—like the Center has asserted here—must overcome a series of threshold jurisdictional arguments before reaching the merits. If, however, the court awards the relief that is demanded in this case, projects benefitting from these maritime programs could face further delays in funding and, perhaps more troubling, could see scarce funds diverted toward agency reviews and away from actual on-the-ground work.

Environmental Coalition Petitions Army Corps to Halt Permits for Energy Infrastructure Projects 

Also, this month, hundreds of environmental groups jointly petitioned the U.S. Army Corps of Engineers (“Corps”) to revoke and stop issuing dredge, fill, and discharge permits for coastal fossil fuel projects, arguing that such projects are catastrophically damaging the environment and disproportionately harming environmental justice communities.

The Clean Water Act and Rivers and Harbors Act prohibit certain activities that impact waters, wetlands, and the environment unless permitted by the Corps. Section 404 of the Clean Water Act gives the Corps responsibility for permitting activities that involve the discharge of dredged or fill materials into U.S. waters. Section 10 of the Rivers and Harbors Act gives the Corps permitting responsibility for projects that impair navigable waters.⁷ For categories of “similar” activities that “will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment,” the Corps may issue a Nationwide Permit (“NWP”)—a general permit that avoids the need for any further review of activities in the category.⁸ For activities that do not qualify for an NWP, the Corps issues individual permits under Clean Water Act Section 404 and Rivers and Harbors Act Section 10. These individual and general permits are frequently necessary for fossil fuel and maritime infrastructure projects, such as pipelines and storage, transport, export, and refining facilities.

Led by the Center for Biological Diversity, a coalition of 383 environmental and citizen groups filed a petition on October 6, 2021, urging the Corps to halt the approval of permits for fossil fuel infrastructure projects.⁹ According to the petition, issuance of such permits is contrary to the public interest. Citing President Biden’s January 27, 2021 Executive Order on Tackling the Climate Crisis at Home and Abroad, the petition alleges that the Corps’ approvals of fossil fuel infrastructure project permits fail to adequately consider climate and environmental justice impacts, and therefore represent an inadequate consideration of the public interest. In addition to a moratorium, the groups also seek (i) revocation of NWP 12;¹⁰ (ii) promulgation of a new rule declaring that fossil fuel infrastructure project permits are contrary to the public interest and shall not be issued pursuant to the Clean Water Act; and (iii) suspension and revocation of individual permits for fossil fuel infrastructure projects. Though many questions exist as to the validity of the arguments raised in the petition, the coalition would presumably consider filing an APA-based challenge in federal district court if the Corps denies the petition.

¹ See generally Maritime Admin., U.S. Dep't of Transportation, America's Marine Highway Report to Congress (April 2011).

² 46 U.S.C. § 55601(a).

³ Maritime Admin., U.S. Dep't of Transportation, America's Marine Highway, https://www.maritime.dot.gov/grants/marine-highways/marine-highway.

⁴ 46 U.S.C. §§ 55601(d), (g).

⁵ Pub. L. 116-260, December 27, 2020.

⁶ See 86 Fed. Reg. 17,944 (May 24, 2021).

⁷ 33 U.S.C. § 1344(a), (d); id. § 403.

⁸ See 33 C.F.R. § 330.1(b), (g).

⁹ Before the United States Army Corps of Engineers, Petition To Halt the Petition to Halt the Approval of Fossil Fuel Infrastructure Permits as Contrary to the Public Interest and for Associated Actions and Rulemaking, 383 Environmental Justice, Climate, Conservation, Public Health, Indigenous, Faith-Based, and Community Organizations (Oct. 6, 2021).

¹⁰ NWP 12 authorizes certain “activities required” for the construction of water crossings for oil and gas pipelines, the construction and expansion of pipeline substation facilities, and the construction of access roads for the construction and maintenance of pipelines without any further review. See 86 Fed. Reg. 2,744 (Jan. 13, 2021).

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