Healthy Gulf v. Secretary, Louisiana Department of Natural Resources

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

25-551 consolidated with 25-552

HEALTHY GULF, ET AL.

VERSUS

SECRETARY, LOUISIANA DEPARTMENT
OF NATURAL RESOURCES

Consolidated with 25-552

HEALTHY GULF, ET AL.

VERSUS

SECRETARY, LOUISIANA DEPARTMENT
OF NATURAL RESOURCES

**********

APPEAL FROM THE
THIRTY-EIGHTH JUDICIAL DISTRICT COURT
PARISH OF CAMERON, NUMBER 1021076
CONSOLIDATED WITH 1021077
HONORABLE H. WARD FONTENOT, DISTRICT JUDGE

**********

CLAYTON DAVIS
JUDGE

**********

Court composed of Charles G. Fitzgerald, Gary J. Ortego, and Clayton Davis,
Judges.

AFFIRMED.

Myles Ranier
Broussard Knoll Law Firm
1301 Common Street
Lake Charles, Louisiana 70601
(337) 439-2450
myles@broussardknoll.com
COUNSEL FOR PLAINTIFFS APPELLANTS:
Healthy Gulf For A Better Bayou
Fishermen Involved in Sustaining Our Heritage
Habitat Recovery Project
Louisiana Bucket Brigade
Micah 6:8 Mission
Sierra Club

Elizabeth Livingston de Calderon
Michael L. Brown
Bridgett McCoy
Earth Justice
900 Camp Street, Unit 303
New Orleans, Louisiana 70130
(504) 910-1712
ecalderon@earthjustice.org
mlbrown@earthjustice.org
bmccoy@earthjustice.org
COUNSEL FOR PLAINTIFFS APPELLANTS:
Healthy Gulf For A Better Bayou
Fishermen Involved in Sustaining Our Heritage
Habitat Recovery Project
Louisiana Bucket Brigade
Micah 6:8 Mission
Sierra Club

Kirk A. Patrick, III
Dylan A. Thompson
Donahue, Patrick & Scott PLLC
450 Laurel Street, Suite 1600
Post Office Box 1629
Baton Rouge, Louisiana 70801
(225) 214-1908
patrick@dps-law.com
dthompson@dps-law.com
COUNSEL FOR AMICUS CURIAE:
James Steven Broussard
Cheryl Kim Broussard
J.S. Broussard Farms, LLC

David A. Peterson
Richelle N. Moore
Louisiana Department of Justice
Post Office Box 94005
Baton Rouge, Louisiana 70821
(225) 326-6000
Petersond@ag.louisiana.gov
MooreR@ag.louisiana.gov
COUNSEL FOR DEFENDANT APPELLEE:
State of Louisiana, Department of Energy and Natural Resources

Blake Canfield
Morgan D. Rogers
Louisiana Department of Conservation and Energy
Post Office Box 94396
Baton Rouge, Louisiana 70804
(225) 342-0572
Blake.Canfield@la.gov
Morgan.Rogers2@la.gov
COUNSEL FOR DEFENDANT APPELLEE:
State of Louisiana, Department of Energy and Natural Resources

Pamela R. Mascari
Troy J. Charpentier
Lauren J. Rucinski
Kean Miller LLP
400 Convention Street, Suite 700
Baton Rouge, Louisiana 70821
(225) 387-0999
Pam.Mascari@keanmiller.com
Troy.Charpentier@keanmiller.com
Lauren.Rucinski@keanmiller.com
COUNSEL FOR APPELLEES/INTERVENORS:
Venture Global CP2 LNG, LLC and
Venture Global CP2 Express, LLC

Tod Everage
Kean Miller LLP
909 Poydras Street, Suite 3600
New Orleans, Louisiana 70112
(504) 585-3050
Tod.Everage@keanmiller.com
COUNSEL FOR APPELLEES/INTERVENORS:
Venture Global CP2 LNG, LLC and
Venture Global CP2 Express, LLC

Maureen N. Harbourt
Venture Global LNG, Inc.
400 Convention Street, Suite 500
Baton Rouge, Louisiana 70821
(225) 937-5274
mharbourt@venturegloballng.com
COUNSEL FOR DEFENDANTS APPELLEES:
Venture Global CP2 LNG, LLC and
Venture Global CP2 Express, LLC

DAVIS, Judge.

Healthy Gulf and six other plaintiffs 1 appeal the ruling of the district court

affirming the Department of Natural Resources, Office of Coastal Management’s

(OCM) decision to grant coastal use permits to two Venture Global limited liability

companies for the construction and operation of a liquefied natural gas liquefaction,

storage and export complex, and pipeline system in Cameron and Calcasieu parishes.

For the following reasons, we affirm OCM’s permit grants.

FACTS AND PROCEDURAL HISTORY

Venture Global seeks to build infrastructure in Louisiana’s coastal zone to

export liquified natural gas to the global market. The coastal zone is defined by

statute, includes all of Cameron Parish, and extends north to Sulphur, Louisiana.

The Venture Global companies applied for coastal use permits from OCM.

One permit was to construct a liquefied natural gas terminal; the other was for a

pipeline to supply it. The terminal project seeks to construct a 737-acre natural gas

liquefaction, storage, and export terminal adjacent to the Calcasieu ship channel in

Cameron Parish. The pipeline project anticipates constructing eighty-five miles of

pipeline and a forty-acre compressor station to connect the terminal project to an

existing pipeline system in Texas. Forty-five miles of this pipeline would pass

through the coastal zone. The project will affect large areas of wetlands and have

negative environmental impacts.

Venture Global is required to mitigate unavoidable permanent impacts to

vegetated wetlands. The project, however, will yield significant economic benefits

to Cameron Parish and the State of Louisiana. Venture Global estimates that the

project will provide $540 million in construction worker payroll over a four-year

1
We refer to these plaintiffs collectively as “Healthy Gulf” and refer to the plaintiff group
in the singular.

period, with the State collecting $75 million in sales tax from the project workforce.

It believes the state will collect around $24 million in income tax revenue during the

construction period.

Venture Global presented various alternative sites in its permit applications

for OCM’s consideration along with extensive environmental and storm surge

analyses. OCM approved both projects and issued two coastal use permits in March

2024.

The Federal Energy Regulatory Commission (FERC) conducted a parallel

review of these proposed projects. OCM relied on FERC’s work in arriving at its

decision to issue permits. FERC concluded that “approval of the proposed project,

with the mitigation measures recommended . . . would have some adverse

environmental impacts; however, all of these impacts would be reduced to less-than-

significant levels.”

As “person[s] adversely affected by a coastal use permit decision,” Healthy

Gulf appealed the permit decision to the district court in Cameron Parish where the

project is primarily located. La.R.S. 49:214.30(D). The district court affirmed the

issuance of the permits.

STANDARD OF REVIEW

The State and Local Coastal Resources Management Act governs both the

issuance and judicial review of coastal use permits. La.R.S. 49:214.30, 214.35.

Louisiana Revised Statutes 49:214.35(F) refers to the Louisiana Administrative

Procedure Act for additional rules of review. The relevant part of this Act, at La.R.S.

49:978.1(G), explains:

The court may affirm the decision of the agency or remand the
case for further proceedings. The court may reverse or modify the
decision if substantial rights of the appellant have been prejudiced
because the administrative findings, inferences, conclusions, or
decisions are:

2

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Arbitrary or capricious or characterized by abuse of discretion or
clearly unwarranted exercise of discretion; or

(6) Not supported and sustainable by a preponderance of evidence as
determined by the reviewing court. In the application of this rule, the
court shall make its own determination and conclusions of fact by a
preponderance of evidence based upon its own evaluation of the record
reviewed in its entirety upon judicial review.

Here, “[t]he scope of our appellate review is defined by the same sections of the

Administrative Procedure Act [La.R.S. 49:978.1(G)] as those for the district court,

the first court of appellate review.” Davis v. State Bd. of CPA, 13-514, p. 7 (La.App.

4 Cir. 12/18/13), 131 So.3d 391, 396.

At first glance, sections (G)(5) and (G)(6) supply overlapping, inconsistent

standards. However, the jurisprudence has clarified this:

Louisiana Revised Statutes 49:964(G)(5) and (6) [now
redesignated as La.R.S. 49:978.1(G)(5) and (6)] address different
considerations. Louisiana Revised Statutes 49:[978.1](G)(5) “is used in
reviewing conclusions and exercises of agency discretion,” thus, this
provision applies to questions of law and mixed questions of fact and
law. Robert Force & Lawrence Griffith, The Louisiana Administrative
Procedure Act, 42 La. L.Rev. 1227, 1285–86 (1982). Distinctly,
[La.R.S. 49:978.1(G)(6)] “is used in reviewing the facts as found by the
agency,” which, according to the statute provision, includes credibility
determinations. Id.

Carpenter v. State, Dept. of Health and Hosps., 05-1904, p. 5 (La.App. 1 Cir.

9/20/06), 944 So.2d 604, 608. Consequently, the arbitrary and capricious standard

applies to an agency’s decision to issue or deny permits, but the “supported and

sustainable by a preponderance of evidence” standard applies to the agency’s factual

findings, factual inferences, and credibility determinations. The jurisprudence has

3

also called this preponderance of evidence standard a manifest error standard. Save

Ourselves, Inc. v. La. Env’t, 452 So.2d 1152 (La.1984); see also Holladay v. La. State

Bd. of Med. Exam’ 961740 (La.App. 4 Cir. 2/19/97), 689 So.2d 718, writ denied, 97-

730 (La. 5/1/97), 693 So.2d 740. Regarding the arbitrary and capricious standard,

arbitrary means an abuse of discretion and a decision that disregards evidence or its

weight, while a capricious decision is one whose conclusion is contrary to the

evidence or is not supported by any substantial evidence. Carpenter, 944 So.2d 604.

Additionally, a significant body of jurisprudence addresses the deference to

be given to an administrative agency’s decision. However, the legislature recently

amended La.R.S. 49:978.1 to specifically bar deference to an agency’s

interpretations of statutes or rules. Louisiana Revised Statutes 49:978.1(H) now

states:

In interpreting a state statute or rule, a court, administrative judge, or
hearing officer presiding over a contested case, hearing, or appeal shall
not defer to the agency’s interpretation of the statute or rule. The court,
administrative judge, or hearing officer shall interpret the meaning of
the statute or rule de novo.

As a procedural clarification, the change is retroactive.

The Louisiana Supreme Court has previously found “[i]t is elementary that a

court’s function is not to weigh de novo the available evidence and to substitute its

judgment for that of the agency.” Save Ourselves, Inc., 452 So.2d at 1159. However,

this “does not imply any derogation of the courts’ traditional primacy in interpreting

constitutional and statutory provisions and enforcing procedural rectitude.” Id. In the

past, some appellate courts have refused to defer to an administrative agency when

it failed to comply with regulations or guidelines. Pardue v. Stephens, 558 So.2d

1149 (La.App. 1 Cir. 1989). This jurisprudence does not conflict with the

Legislature’s deference amendment.

4

Previously jurisprudence stated “[c]onsiderable weight should be given to an

administrative agency’s construction and interpretation of its rules as provided for

under the statutory scheme that the agency is assigned to administer.” See Healthy

Gulf v. Sec’y, La. of Nat. Res., 24-286, p. 6 (La.App. 4 Cir. 12/23/24), 407 So.3d 705,

711. However, Louisiana Revised Statutes 49:978.1(G) specifically overrules this.

Thus, we must defer to an agency’s weighing of the facts and its conclusion (here to

issue permits) unless, after our independent review, the agency has misinterpreted

the governing law and guidelines.

STATE AND LOCAL COASTAL RESOURCES MANAGEMENT ACT
AND PERMIT GUIDELINES

The State and Local Coastal Resources Management Act of 1978, La.R.S.

49:214.21 et seq., declared the State’s public policy to be to protect the coastal zone’s

resources and to support economic growth. Healthy Gulf claims OCM’s decision

violated La.R.S. 49:214.27 because it failed to consider Venture Global’s plan to

construct and operate both a compressor station and a carbon capture and storage

system (CCS) as part of the project.

However, this statute only states that the secretary shall develop a coastal

management program, including laws and regulations for the coastal zone. It does

not include any guidelines. It mandates the creation and implementation of

guidelines and specifies their goals. These goals not only include environmental

protection and minimizing impacts on coastal resources but also “[r]ecognize the

value of . . . areas particularly suited for industrial [or] commercial . . . development

and manage those areas to enhance their value to the people of Louisiana.” La.R.S.

49:214.27(4).

Louisiana Administrative Code, title 43, Pt. I, § 701, contains the guidelines

that complement the State and Local Coastal Resources Management Act. It states:

5

G. It is the policy of the coastal resources program to avoid the
following adverse impacts. To this end, all uses and activities shall be
planned, sited, designed, constructed, operated, and maintained to
avoid to the maximum extent practicable significant:

....

2. adverse economic impacts on the locality of the use and
affected governmental bodies;

....

5. destruction or adverse alterations of . . . wetland, . . .
waterbottoms, beaches, . . . and other natural biologically valuable areas
or protective coastal features;

....

10. adverse effects of cumulative impacts;

....

16. adverse alteration or destruction of . . . valuable habitats . . . ;

....

20. increases in the potential for flood, hurricane and other storm
damage, or increases in the likelihood that damage will occur from such
hazards[.]

Subparagraph H of Louisiana Administrative Code, title 43, Pt. I, § 701 states

that if the:

[maximum extent practicable modifier] is not complied with, the use
will be in compliance with the guideline if the permitting authority
finds, after a systematic consideration of all pertinent information
regarding the use, the site and the impacts of the use as set forth in
Subsection F above, and a balancing of their relative significance, that
the benefits resulting from the proposed use would clearly outweigh the
adverse impacts resulting from noncompliance with the modified
standard and there are no feasible and practical alternative locations,
methods, and practices for the use that are in compliance with the
modified standard and:

a. significant public benefits will result from the use; or

b. the use would serve important regional, state, or national
interests, including the national interest in resources and the siting of
facilities in the coastal zone identified in the coastal resources program.

6

Also, the Administrative Code requires that the agency evaluate “locations,

designs, methods, practices, and techniques which may be required, following a

thorough review of [the guidelines], to avoid and minimize” adverse impacts and to

restore impacted sites. La.Admin.Code. tit. 43, Pt. I, § 724(B)(1)(a-c). The Code

requires mitigation as a condition to granting a permit when the activity causes a

“net loss of coastal resources ecological value that is anticipated to occur despite

efforts to avoid, minimize, and restore permitted/authorized impacts[.]”

La.Admin.Code. tit. 43, Pt. I, § 724(B)(1)(c). If the permit applicant applies for and

is issued a variance, mitigation is not required. Id.

Healthy Gulf also alleges that OCM violated La.Const. art. 9, § 1, which

states:

The natural resources of the state, including air and water, and the
healthful, scenic, historic, and esthetic quality of the environment shall
be protected, conserved, and replenished insofar as possible and
consistent with the health, safety, and welfare of the people. The
legislature shall enact laws to implement this policy.

ASSIGNMENT OF ERROR

With this background, we now go to Healthy Gulf’s single assignment of

error, which is that the district court erred in affirming OCM’s decisions. Healthy

Gulf argues that OCM violated the Coastal Zone Act and the related guidelines in

the Administrative Code by failing to:

1) consider the pipeline’s compressor station and an integrated CCS system
in its decision to issue the permit;

2) find whether alternative sites prohibited approval because they would
have avoided more coastal zone impacts;

3) weigh the costs to fishermen from increased ship traffic blocking access
to waterways and fishing grounds; and

4) meet its public trust duty under La.Const. art. 9, § 1 to give “full and
careful consideration” to environmental, social, and economic costs.

7

ANALYSIS

1. Did OCM fail to consider the pipeline compressor station and integrated
carbon capture system in its permit decision?

Healthy Gulf argues that OCM failed to meet its statutory obligations under

La.R.S. 49:214.27 and its regulatory obligations under La.Admin.Code. tit. 43, Pt. I,

§ 701. They claim OCM did not apply the coastal use guidelines for the project’s

compressor station and carbon capture system and failed to make findings on either.

Also, it argues that the flood wall constitutes a “levee” under the coastal use

guidelines, triggering additional analysis under more specific guidelines governing

levees. If these elements of the project were ignored entirely, any cost benefit

analysis without them would be inaccurate.

OCM’s “Basis of Decision” included the compressor station as part of the

pipeline project. OCM considered concerns made at the public hearing and

throughout the permitting process that the proposed site used gas powered generators

instead of electric ones. The “Basis of Decision” says full and fair consideration was

given to these concerns and comments.

OCM noted that the proposed project “shall be in conformance with all

applicable water and air quality laws, standards and regulations.” The decision

mandates that Venture Global obtain any other permits required by the Louisiana

Department of Environmental Quality before beginning construction. In the FERC

analysis upon which OCM relied, FERC found that the compressor station “would

not cause or contribute to any cumulative significant impact level . . . exceedances

for [National Ambient Air Quality Standards] . . . .” FERC found that an “electric

motor-driven compression at the Moss Lake Compressor Station would not provide

a significant environmental advantage over or equivalent reliability to the proposed

8

gas-powered . . . compression, in part due to the unpredictable reliability of electric

power transmission during severe weather events, including hurricanes.”

In addition, OCM addressed the wetlands impact of the compressor station.

OCM required Venture Global to mitigate for lost acreage and noted that Venture

Global had already purchased wetland mitigation credits, which “purchases will

satisfy the requirements for compensatory mitigation and allow permittee to conduct

the activities authorized under this permit.”

Likewise, OCM addressed the air quality and noise impacts of the compressor

station by incorporating the Final Environmental Impact Statement (FEIS)

performed by FERC as part of its obligation under the National Environmental

Policy Act. The FEIS conclusion was that the project would “not result in significant

impacts of air quality” and “would not result in significant impacts on nearby

residents of noise sensitive areas.”

Regarding the carbon capture facility, the Louisiana Department of

Conservation and Energy’s Office of Permitting, Underground Injection Control

Section, governs the permitting of such wells. See La.R.S. 30:1101, et seq.

Regardless, such technologies are intended to mitigate environmental harm, and

their inclusion would seem to bolster OCM’s decision to grant the pipeline project a

permit.

Healthy Gulf also takes issue with OCM’s finding that the concrete storm

surge protection wall around the compressor station was not a levee and did not

trigger the levee guidelines. The Administrative Code defines levees as:

any use or activity which creates an embankment to control or prevent
water movement, to retain water or other material, or to raise a road or
other lineal use above normal or flood water levels. Examples include
levees, dikes and embankments of any sort.

La.Admin.Code. tit. 43, Pt. I, § 700.

9

The Code defines levees broadly but does not specifically mention storm

surge walls. The types of water controls mentioned are typically constructed adjacent

to bodies of water or waterways. Common usage of the term embankment does not

typically contemplate a concrete wall surrounding a complex of industrial

equipment, so it was reasonable for OCM to conclude that the project did not include

any levees. The relevant parts of the specific guidelines governing levees state:

D. Hurricane and flood protection levees shall be located at the
nonwetland/wetland interface or landward to the maximum extent
practicable.

....

F. Hurricane or flood protection levee systems shall be designed,
built and thereafter operated and maintained utilizing best practical
techniques to minimize disruptions of existing hydrologic patterns, and
the interchange of water, beneficial nutrients, and aquatic organisms
between enclosed wetlands and those outside the levee system.

La.Admin.Code. tit. 43, Pt. I, § 703.
OCM reviewed extensive hydrology and storm surge reports submitted by

Venture Global. The “Basis of Decision” states that as part of its hydrologic

modification impact analysis, based on the information submitted, the “project

would have little or no negative impact of the local hydrology,” and the “hydraulic

modification resulting from the project did not adversely impact the quantity,

movement, distribution and quality of water within the watershed.” The OCM

further found that the “proposed activities are not anticipated to increase the risk of

flooding to the project area or areas surrounding the project.”

Venture Global submitted detailed plans and analyses for the components of

the pipeline project. FERC analyzed the compressor station, and OCM adopted the

analysis. In applying the guidelines, the “Basis of Decision” speaks of the pipeline

project more generally rather than piecemeal. But given the full context, OCM

considered the compressor station in its analysis. As the Louisiana Supreme Court

10

has stated, “we may uphold a decision of less than ideal clarity if the agency’s path

may reasonably be discerned, such as when its findings, reasons and exercise of

discretion are necessarily and clearly implied by the record.” Save Ourselves, Inc.,

452 So.2d at 1159. Consequently, we find that OCM fully considered the impacts of

the compressor station in granting the permit. Healthy Gulf’s argument on this issue

is without merit.

2. Did alternative sites with lesser impacts preclude the issuance of permits
for the chosen sites?

Healthy Gulf argues that the primary selected sites for both projects did not

avoid adverse impacts “to the maximum extent practicable” and the costs

outweighed the benefits because alternative sites would have avoided impacts to the

Coastal Zone. Healthy Gulf notes that one of the alternative sites for the terminal

was almost entirely outside the Coastal Zone. This site would have eliminated the

need for a pipeline in the zone. When a proposed project cannot eliminate the

delineated adverse effects to the maximum extent possible, it must show that no

other “feasible and practical alternative location[]” exists that would avoid these

impacts. La.Admin.Code. tit. 43, Pt. I, § 701(H)(1).

OCM’s “Basis of Decision” stated that throughout the permitting process and

at the public hearing, it heard concerns that it did not have adequate information on

alternative terminal and pipeline sites, that Venture Global presented false and

unequal comparisons to justify the proposed primary sites, and that Venture Global

failed to fully compare the advantages and disadvantages of the alternative sites.

OCM said it gave full consideration to these comments.

Venture Global’s permit application reflected that the primary terminal site

consists of habitat previously disturbed by oil and gas exploration and extraction, fill

activities, cattle grazing, hay crop production, and other agricultural practices.

11

Venture Global further stated that wetland delineations performed at the primary

terminal site were of lower quality due to a history of human disturbance.

OCM analyzed route length, route length through wetlands and other habitats,

and the number of roads crossed, finding that the alternatives did not provide any

significant environmental advantage. It found that the approved pipeline route

avoided crossing the Sabine National Wildlife Refuge, public oyster seed grounds

in Calcasieu Lake, and the Cameron-Creole Watershed Levee. This was not true for

alternative sites.

The first alternative site affected four times the estuarine wetlands (as mapped

by the National Wetlands Inventory). For this site, the vessel transit time for ships

taking liquified natural gas from the terminal would be increased to eight or nine

hours instead of the three hours for the selected site. The increased transit time would

increase environmental impacts from additional vessel emissions. The second

alternative site overlapped the first, so it had similar issues with increased transit

time. It also impacted more wetlands than the primary site and impacted forestland

(which the selected site did not). Also, because the second site was at the intersection

of the Industrial Canal and the Calcasieu Ship Channel, it presented marine safety

and maneuverability challenges absent from the primary site. The third alternative

site would have affected more than five times as many acres of estuarine wetlands.

Also, the required pipeline route for this site would have been adjacent to more

residential and commercial areas and would have crossed federal and state wildlife

preserves and refuges.

Healthy Gulf claims that two alternative sites for the terminal would have

utilized less land in the coastal zone and therefore avoided more coastal zone

impacts. Yet the three alternative sites impacted larger areas of wetlands than the

permitted terminal site and had other disadvantages. Healthy Gulf’s interpretation of

12

the guidelines injects an element of arbitrariness, ignoring the need to balance

multiple factors. Healthy Gulf argues that if it is at all possible to force the

environmental impacts outside the coastal zone, then OCM should not grant the

permit. This is a misreading of the statutes and guidelines.

Such an interpretation violates the public policy in the State and Local Coastal

Resources Management Act which “[r]ecognize[s] the value . . . [of] areas

particularly suited for industrial, commercial, or residential development and

manage those areas so as to enhance their value to the people of Louisiana.” La.R.S.

49:214.27(C)(4). Also, it ignores the public policy “[t]o support . . . the need to

provide for adequate economic growth and development and the minimization of

adverse effects of one resource use upon another, and without imposing any undue

restriction on any user.” La.R.S. 49:214.22(3).

The Coastal Resources Management Act and the guidelines are not purely

environmental protection and resource conservation laws. It would always be true

that choosing an alternative site outside of the Coastal Zone would avoid impacts on

the zone. But this is not the only consideration. The permitting guidelines address

specific delineated impacts, not every impact. And the impacts are weighed against

the economic benefits, since the Act also aims to promote economic development.

Consequently, the evidence in the record, as well as the OCM’s analysis of

the alternative sites in its “Basis of Decision,” demonstrate that it was not arbitrary

and capricious in finding that the selected sites avoided certain impacts to the

maximum extent practical, or where not feasible, the benefits outweighed the costs.

Therefore, OCM’s issuance of the permits was not arbitrary and capricious. We find

Healthy Gulf’s argument on this issue lacks merit.

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3. Did OCM fail to weigh the impact to fishermen?

Healthy Gulf argues that the Coastal Use Guidelines in La.Admin.Code. tit.

43, Pt. I, § 701 prohibit granting the permit unless the project avoids adverse impacts

to other Coastal Zone users such as commercial fishermen, or OCM finds that the

costs of unavoidable impacts are “clearly outweigh[ed]” by project benefits and that

“no feasible and practical alternative . . . methods and practices” would avoid those

impacts. Healthy Gulf argues that OCM did not conduct its own analysis and instead

relied on FERC’s review discussing potential impacts to commercial fishermen but

did not detail a mitigation plan.

Specifically, the relevant guidelines state that they shall have the goal to,

“Minimize, whenever feasible and practical, detrimental impacts on . . . fisheries by

such means as encouraging minimum change of natural systems and by multiple use

of existing canals . . . and other practical techniques.” La.R.S. 49:214.27(C)(5).

Further, they require that the project “avoid to the maximum extent practicable

significant . . . adverse economic impacts on the locality of the use and affected

governmental bodies[.]” La.Admin.Code. tit. 43, Pt. I, § 701(G)(2) (emphasis

added). Lastly, mitigation is required as a condition for granting the permit when

there is “any net loss of coastal resources ecological value that is anticipated to occur

despite efforts to avoid, minimize, and restore permitted/authorized impacts (i.e.,

unavoidable net loss of coastal resources ecological value), unless a variance is

granted pursuant to § 724.K.” La.Admin.Code. tit. 43, Pt. I, § 724(B)(1)(c).

Critically, the statutes and guidelines contain multiple qualifiers that Healthy

Gulf’s argument fails to emphasize. According to public policy and guidelines,

adverse impacts are to be minimized only where feasible and practical, and avoided

only where significant. Mitigation is required only when there is a “net loss of coastal

resources ecological value.” This is different from an adverse economic effect.

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FERC’s review summarized impacts on commercial fishing stating:

Recreational and commercial fishing could be impacted by construction
activities associated with the Project, primarily with the Terminal
Facilities. Project activities are anticipated to occur during peak
fishing . . . seasons, therefore, temporary impacts on . . . commercial
users in the Calcasieu Ship Channel, which would likely include
individuals from environmental justice communities, may occur in
areas where construction is occurring. However, fishing activities are
not restricted to the relatively small sections of the Project footprint that
could provide potential fishing opportunities and due to the overall size
of the waterway and the bay, access to and maneuverability within the
Calcasieu Ship Channel would not be significantly affected by the use
of barges . . . The construction impacts on . . . commercial fisheries
would be temporary, lasting the duration of construction activities.
Permanent impacts on recreational and commercial fisheries in the ship
channel . . . may occur due to the loss of available fishing areas from
operation of the Marine Facilities and LNG carrier traffic. Based on
consultations between FERC and [Louisiana Department of Wildlife
and Fisheries (LDWF)], impacts on shrimping vessels would be
greatest near the Terminal south of the Firing Line where shrimping
occurs year-round and vessel traffic and dredging associated with the
Terminal Facilities would occur. Although we expect fish, crab, and
shrimp species common to the bay could be present, the location does
not have any unique features or habitat characteristics that would draw
recreational or commercial users to this particular location. The Project
area does not support special habitat that is different from the miles of
surrounding habitat. Given these characteristics, and due to the
overall size of the waterway, we conclude that these impacts . . .
would not be significant. Additionally, Venture Global created the
Calcasieu Pass Community Advisory Group to ensure that residents
from all parts of Cameron Parish are represented and can communicate
promptly and directly with Venture Global to express any concerns they
have or to communicate adverse impacts that they or their neighbors
have seen related to Calcasieu Pass. As part of the Community
Advisory Group and as part of their general community relations, CP2
LNG states it would continue to seek stakeholder feedback and work
with stakeholders, including shrimpers and fishermen, on ways that
negative impacts may be avoided or mitigated. [emphasis added].

After consideration of all the data, concerns, and analysis, FERC concluded

that the operations and construction impacts of the project “would not have a

significant impact on commercial [or recreational] fisheries.” FERC’s

environmental impact statement concluded: “impacts on aquatic resources from

construction of the Terminal Facilities would not be significant,” and that “in

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consultation with NMFS, we conclude that the overall impacts on fish would not be

significant.”

Elsewhere, FERC concluded, “[D]ue to the overall size of the waterway and

access to and maneuverability within the Calcasieu Ship Channel, fishing and

recreational activities would not be significantly affected by the proposed use of

barges.”

Also, FERC explained:

After the LNG transit is complete, fishing vessels could resume fishing
activities throughout the Ship Channel. Typically, shrimp are most
active at night when few vessels are using the Calcasieu Ship Channel.
Given the Terminal Facilities proximity to the mouth of the Calcasieu
River (about 1 mile) and the year-round use of the area by commercial
fishing vessels, we conclude the increase in delays associated with LNG
carrier transit would have a moderate, but not significant impact on
commercial fishing.

Louisiana Administrative Code title 43, Part I, § 701(G) requires that the

project avoid “to the maximum extent practicable significant . . . adverse economic

impacts[.]” The record contains evidence that the disruption to the local fishing

industry will not be significant, and even if it were, the impacts are being avoided to

the maximum extent practicable. Therefore, on this issue we find that OCM did not

act arbitrarily or capriciously.

4. Did OCM owe a separate public trust duty under La.Const. art. 9, § 1?

Healthy Gulf argues that OCM’s decision violated the Louisiana Constitution

because it failed to give “full and careful consideration” to environmental, economic,

and social impacts. These impacts are raised in Healthy Gulf’s other arguments. This

argument seeks to apply different law to the same issues raised above.

The Coastal Resources Management Act and the guidelines governing the

issuance of coastal use permits are examples of legislation that seeks to fulfill the

aspirations of Louisiana Constitution Article 9, § 1. Like the guidelines, the

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Louisiana Constitution does not require environmental protection at all costs, but

rather “insofar as possible and consistent with the health, safety, and welfare of the

people.” We find the “welfare of the people” includes economic development in

conjunction with preservation of resources. Further, we do not find the regulations

in the Coastal Resources Management Act or the guidelines to be any less stringent

or demanding than the public policy outlined in the Louisiana Constitution.

Therefore, Healthy Gulf’s argument is duplicative and addressed by our analysis

above.

CONCLUSION

After consideration of the arguments and review of the record, we find that

OCM did not act arbitrarily or capriciously in granting the permits at issue.

DECREE

The decision of the Louisiana Department of Natural Resources, Office of

Coastal Management’s granting of coastal use permits to Venture Global is affirmed.

Costs are assessed to Appellants, Healthy Gulf for a Better Bayou, Fisherman

Involved in Sustaining our Heritage, Habitat Recovery Project, Louisiana Bucket

Brigade, Micah 6:8 Mission, and Sierra Club.

AFFIRMED.

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