In re Katrina Canal Breaches Consolidated Litigation (627 F. Supp. 2d 656, 2009)

United States District Court for the Eastern District of Louisiana 2009-03-20

Conservation

Citations

Full opinion text

ORDER AND REASONS

STANWOOD R. DUVAL, JR, District Judge.

Before the Court are Plaintiffs’ Motion for Partial Summary Judgment (Doc. 16510) and Defendant United States’ Renewed Motion to Dismiss or, in the Alternative, for Summary Judgment. (Doc. 16511). In this matter, as discussed in the Court’s previous rulings , Plaintiffs have filed suit against the United States for damages caused by flooding allegedly caused by the Mississippi River-Gulf Outlet (“MRGO”). The gravamen of these cross-motions focuses on whether the due care exception and discretionary function exception, as delineated in 28 U.S.C. § 2680(a), shields the United States and warrants the dismissal of Plaintiffs’ suit.

Plaintiffs’ Motion for Partial Summary Judgment

Plaintiffs maintain that they are entitled to judgment on the United States’ third and fourth affirmative defenses which are based on 28 U.S.C. § 2680(a) because:

(1) the Government cannot carry its burden to establish that the Army Corps of Engineers (“the Corps”) had discretion to ignore specific legal mandates prescribed in federal statutes, regulations, and policy; and

(2) the Government cannot carry its burden that those decisions were grounded in political social, or economic policy because they were not discretionary policy choices made in the implementation of the original decision to build the MRGO but were ordinary non-policy decisions concerning technical, engineering and professional judgments about safety.

However, the focus of their motion presented here is solely on the first argument — that is that because the Corps violated specific mandates, it is not entitled to invoke the discretionary function exception. Plaintiffs contend that the United States violated federal law by:

(1) violating the Fish and Wildlife Coordination Act (“FWCA”) by not consulting with federal and state environmental agencies and by not reporting their concerns to Congress;

(2) violating the National Environmental Policy Act (“NEPA”) by dredging for decades without an adequate environmental impact statement; and

(3) violating policies mandating wetlands protection.

In addition, Plaintiffs contend that the United States has the burden of proof to demonstrate that it did not violate these federal laws.

The United States’ Renewed Motion to Dismiss or in the Alternative Motion for Summary Judgment

The United States contends in its motion that the discretionary function exception protects the Army Corps of Engineers’ (“the Corps’ ”) design, construction, operation, repair and maintenance of the MRGO. In essence, it maintains that the Corps built a channel that it was mandated to do. The mandated design created the hydraulic funnel of which Plaintiffs’ complain when the Corps joined Reach 2 (which is the southeastern reach of MRGO) to the Gulf Intercoastal Waterway (“GIWW”) at a point near Michoud to Reach 1, which commingled the two channels continuing as one from that point westward to the Inner-Harbor Navigational Canal (“IHNC”). The Government further contends that it then maintained the channel in the mandated 36-foot depth and 500-foot width using due care.

In addition, the United States contends that the features that Plaintiffs maintain were necessary to eliminate the alleged harmful hydraulic effects — surge barriers and bank protection' — were not part of the plans for the MRGO and were “positively excluded.” (Doc. 16564 at 2). Thus, it argues that “the only channel, in Plaintiffs’ view, that would have comported with the exercise of ‘due care’' — -was a different channel from the one that the Chief of Engineers recommended and that Congress directed the Corps to construct.” (Doc. 16564 at 3).

The Corps further contends that changing the project to add surge barriers and bank protection would not have promoted the purpose of the MRGO which was to provide an aid to navigation. In addition, they maintain that “the addition of these features would have invalidated the cost-benefit calculations that were an essential underpinning of the Chiefs recommendation that construction be authorized.” (Doc. 16564 at 3). Also, the Corps argues that the discretionary function exception bars Plaintiffs’ claims that improper dredging contributed to the widening of the channel; it asserts that its decision to install bank protection only where doing so was considered to be more economical method of maintaining the channel’s prescribed depth and width would be a policy decision protected by the discretionary function exception of § 2680.

The Court will address the legal framework that it will use to analyze these two motions. It will examine the due care exception and the discretionary function exception in the context of the arguments made herein. In so doing it will re-emphasize its previous analysis of this bar to Plaintiffs’ claims as found in In re Katrina Canal Breaches Consolidated Litigation (Robinson, C.A. No. 06-2268 and BARGE), 577 F.Supp.2d 802 (E.D.La.2008). However, considering the instant allegations, a further examination of these concepts is required, including a discussion concerning who bears the burden of proof on the immunity issues.

LEGAL FRAMEWORK AND ANALYSIS

I. Standard for Summary Judgment

Summary judgment should be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). Thus, “ ‘summary judgment is proper when the pleadings and evidence demonstrate that no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law.’ ” Condrey v. SunTrust Bank of Georgia, 429 F.3d 556, 562 (5th Cir.2005), citing DIRECTV, Inc. v. Budden, 420 F.3d 521, 529 (5th Cir.2005). Substantive law determines the materiality of facts, and “[o]nly disputes over facts that might affeet the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The moving party “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] ... which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Condrey, 429 F.3d at 562. Once the movant meets this burden, the burden shifts to the non-movant “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.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548. “[M]ere allegations or denials” will not defeat a well-supported motion for summary judgment. Fed.R.Civ.P. 56(e). Rather, the non-movant must come forward with “specific facts” that establish an issue for trial. Id.

The Fifth Circuit Court of Appeals has recognized that where the matter is to be tried to the Court rather than a jury, that there might be a “non-jury motion for summary judgment standard” that is more lenient. “Under the suggested more lenient standard, the district judge could grant summary judgment based on inferences drawn from incontrovertibly proven facts, so long as there is no issue of witness credibility.” Illinois Central R.R. Co. v. Mayeux, 301 F.3d 359, n. 1 (5th Cir.2002). However, the appellate court has noted that it has not actually been adopted, and the Court will not do so here. Id.

Thus, when deciding a motion for summary judgment, the Court must avoid a “trial on affidavits. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts” are tasks for the trier-of-fact. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. To that end, the Court must resolve disputes over material facts in the non-movant’s favor. “The party opposing a motion for summary judgment, with evidence competent under Rule 56, is to be believed.” Leonard v. Dixie Well Service & Supply, Inc., 828 F.2d 291, 294 (5th Cir.1987).

II. The Federal Tort Claims Act and the Relevant Exceptions

This Court has previously set out in detail the statutory provisions upon which this suit is based and the immunities sought to be applied in In re Katrina Canal Breaches Consolidated Litigation, 471 F.Supp.2d 684 (E.D.La.2007). That opinion was from the perspective of a Rule 12 motion on the application of the same immunities which are at issue herein. The Court will reiterate and expand upon its analysis here.

As explained in United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Vang Airlines), 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984):

The Federal Tort Claims Act, 28 U.S.C. § 1346(b), authorizes suits against the United States for damages:

for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

The Act further provides that the United States shall be liable with respect to tort claims “in the same manner and to the same extent as a private individual under like circumstances.” [28 U.S.C.] § 2674.

Varig Airlines, 467 U.S. at 807-08, 104 S.Ct. 2755. However, Congress did not waive the sovereign immunity of the United States in all respects. Section 2680 of Title 28 of the United States Code provides two salient exceptions — the due care exception and the discretionary function exception. The statute provides:

(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.

28 U.S.C. § 2680(a). The first part of this statute is known as the “due care exception” and the second part of the statute is known as the “discretionary function exception.” Both operate to shield the United States from liability based on the Federal Tort Claims Act (28 U.S.C. § 1346(a)) (“FTCA”).

Burden of Proof

As most recently stated by the United States Court of Appeals for the Fifth Circuit,

“Plaintiff[s] bear[] the burden of showing Congress’s unequivocal waiver of sovereign immunity.” St. Tammany Parish v. Fed. Emergency Mgmt. Agency, No. 08-30070 [556 F.3d 307, 315], 2009 WL 146582, at *6 (5th Cir. Jan. 22, 2009). “At the pleading stage, plaintiffs] must invoke the court’s jurisdietion by alleging a claim that is facially outside of the discretionary function exception.” Id. at [315] *6 & n. 3 (citing [United States v.] Gaubert, 499 U.S. [315] at 324-25, 111 S.Ct. 1267 [113 L.Ed.2d 335 (1991) ]).

Freeman v. United States, 556 F.3d 326, 334 (5th Cir.2009). As the litigants are well aware, the Court considered these issues at the pleading stage and denied them as raising questions of fact. (See n. 1 above). While the motion is styled alternatively as “re-urging” the Rule 12(b)(1) motion, the Court has considered evidence presented, thus the motion is in reality one for summary judgment. As such, the Court must examine who should carry the burden of proof in this instance.

“As is generally the case with waivers of sovereign immunity, the plaintiff bears the burden of proving that the government’s waiver is applicable. On a related point, several federal courts have held that the burden of proving the applicability of an exception to a waiver of sovereign immunity falls on the United States.” Wright, Miller & Cooper, 14 Federal Practice and Procedure § 3658 at n. 11 and n. 12. See Ashford v. United States, 511 F.3d 501, 505 (5th Cir.2007) (government could not show as a matter of law that it had discretion where prison policy required placing plaintiff in solitary where inmate raised safety concern)(“Government needs to establish there was “room for choice” in making the allegedly negligent decision” for first DFE exception to apply); Merando v. United States, 517 F.3d 160 (3d Cir.2008) (plaintiff bears burden of demonstrating that his claims fall within the scope of FTCA but United States has the burden of proving the applicability of the discretionary function exception); Marlys Bear Medicine v. United States, 241 F.3d 1208, 1213 (9th Cir.2001) (burden of proof of the applicability of the discretionary function exception is on the United States)(eiting Prescott v. United States, 973 F.2d 696, 702 (9th Cir.1992)); Carlyle v. United States, 674 F.2d 554 (6th Cir.1982) (plaintiffs’ allegations must fall facially outside the exceptions of § 2680; however, government must prove applicability of a specific provision of § 2680; plaintiff need not disprove every exception under discretionary function exception); Cazales v. Lecon, Inc., 994 F.Supp. 765 (S.D.Tex.1997) (plaintiff bears initial burden of proving that subject matter jurisdiction exists under the FTCA; however, the United States Bears ultimate burden of proving that discretionary function exception applies in particular case). But see Le Rose v. United States, 285 Fed.Appx. 93 (4th Cir.2008) (plaintiffs bore burden of proof to show unequivocal waiver of sovereign immunity existed and to show that none of the FTCA waiver exceptions applied); Welch v. United States, 409 F.3d 646 (4th Cir.2005) (burden is on plaintiff to show that unequivocal waiver of sovereign immunity exists and no exceptions under FTCA apply); Hawes v. United States, 409 F.3d 213 (4th Cir.2005) (burden is on plaintiff to defeat assertion by United States of discretionary exception to Federal Tort Claims Act sovereign immunity waiver).

Thus, at a minimum, it is clear that the Fifth Circuit in Ashford placed the burden of proof on the United States on the first prong of the discretionary function exception to demonstrate that the decisions which it claims are shielded by the discretionary function exception are indeed subject to the exercise of judgment assuming plaintiff has properly pleaded a mandate. It is not so clear where this Circuit lies in terms of the burden of proof as to the second prong, that is whether the Government must demonstrate that the action falls into the realm of a policy decision or whether that burden rests with Plaintiffs to show that the decision at issue is in the nature of a technical, engineering, or professional judgment or other non-policy based actors rather than about policy. However, given the issues presented in light of the facts and evidence, the burden of proof is not really determinative of the issues presented herein.

The Court will now turn to the substantive issues at hand. Given the fact that Plaintiffs’ motion focuses on the first prong of the discretionary function exception which is on of the bases of the Government’s motion, the Court has determined that the analysis will not be done in terms of each motion. Rather, it will rule on the issues seriatim.

A. Due Care Exception and Its Application with Respect to the United States’ Motion

The “due care” exception immunizes the Government from suit with respect to claims based on the execution of a statute or regulation and requires “for its application that the actors have exercised due care.” Lively v. United States, 870 F.2d 296, 297 (5th Cir.1989); Buchanan v. United States, 915 F.2d 969 (5th Cir.1990). This provision “bars tests by tort action of the legality of statutes and regulations.” Dalehite v. United States, 346 U.S. 15, 32, 73 S.Ct. 956, 966, 97 L.Ed. 1427 (1953). Thus, the test for the application of the “due care” exception is to determine (1) whether the statute or regulation in question specifically proscribes a course of action, and (2) if mandated, whether due care was exercised. Welch v. United States, 409 F.3d 646, 652 (4th Cir.2005); Crumpton v. Stone, 59 F.3d 1400, 1403 (D.C.Cir.1995).

The Government contends that since the Corps’ design, construction, operation, repair, and maintenance of the MRGO were done “substantially in accordance with the recommendation of the Chief of Engineers,” its actions were in accordance with Public Law 84-455 — the enabling legislation for the MRGO — and thus is immune from suit. However, Plaintiffs maintain that such a position is erroneous because:

(1) This exception is aimed at shielding the United States from suit where the legality of the statute itself is at issue. As Plaintiffs do not challenge the validity of Pub. La. No. 84-455, this immunity is inapplicable.

(2) Public Law No. 84-455 did not mandate the challenged conduct here. Congressional authorization was a mandate for the Corps, using its professional engineering judgment and expense, to build, operate, and maintain the MRGO in a safe competent professional manner.

(3) Public law No. 84-455 did not exempt the Corps from all other existing laws as it relates to MRGO — in particular the FWCA and NEPA.

(4) It is sharply disputed whether due care was exercised, particularly with respect the maintenance and operation of MRGO.

The United States responds to these contentions by admitting that not every single action undertaken by the Corps in designing, constructing, operating and maintaining the MRGO is protected by the due care exception. (Doc. 16923 at 24). Rather it argues that it was not prevented from “exercising its engineering judgement in deciding what angle to prescribe for the sides of the MRGO or what type of dredging to employ or even exactly what route the channel should take.” The United States argues that the due care exception should apply because:

(1) it was not free not to create the “funnel effect” by virtue of the Congressional mandate;

(2) it was not free not to create the “conduit” by virtue of the Congressional mandate; and

(3) the mandate did not include authority to add channel protection, surge or saltwater barriers.

The final argument of the United States is that Plaintiffs’ argument that:

they are not challenging the validity of the authorizing statute is refuted by their complaints about these supposed “defects” in the project that Congress authorized and which the Corps was not free to remedy under the authority conferred by statue. Plaintiffs are implicitly challenging the statute by saying that ‘due care’ required that the Corps not construct the MRGO as the law require.

Doc. 16923 at 25.

The United States’ argument requires the Court in essence to ignore Plaintiffs’ allegations and recast the complaint. Whether the Corps exercised due care lies at the heart of this case, and Plaintiffs have presented voluminous evidence attempting to demonstrate that in a myriad of ways due care was not exercised. The Government’s proposed broad use of the due care exception is not warranted in light of Plaintiffs’ allegations. It appears to the Court that once Plaintiffs allege and offer substantial evidence that due care was not used by the Corps, certainly in the context of maintenance and operation, the cloak of this immunity statute is unavailable, and the Corps must rely on the discretionary function exception for immunity.

However, if at trial, the Government can adduce sufficient proof that it followed the congressional mandate and Plaintiffs cannot or do not demonstrate any defalcation in the design and/or construction of the MRGO, this immunity may apply to those two actions. There is a paucity of proof that the Corps did not follow the mandate in the actual design or building of the MRGO. On the other hand, Plaintiffs have created substantial questions of fact as to whether due care was exercised in the maintenance and operation of the MRGO. As such, this first exception is unavailable to the United States for the purposes of summary judgment.

B. Discretionary Function Exception

The discretionary function exception bars claims based on the performance of a discretionary function and has no requirement to exercise due care. In fact, the statute specifically dictates that the immunity attaches regardless of whether the discretion is abused. Lively, 870 F.2d at 297. In Ashford, the United States Court of Appeals for the Fifth Circuit recently set forth a succinct and workable explanation of the two distinct prerequisites for the application of the discretionary function exception. In discussing whether the exception applied as a matter of law, the court stated:

We begin with the basics. Generally, sovereign immunity bars suits against the Government; this notion “derives from the British legal fiction that ‘the King can do no wrong,’ and therefore can never appear as a defendant in ‘his’ own courts.” [Santana-Rosa v. United States, 335 F.3d 39, 41-42 (1st Cir.2003) (internal citation omitted) ]. Under the FTCA, however, the Government has waived sovereign immunity for personal injury claims caused by “the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his [or her] office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” [28 U.S.C. § 1346(b)(1) ]. While the FTCA takes two steps forward in allowing individuals to receive compensation for the negligent conduct of the Government, it takes one step back with the numerous statutory exceptions that limit the circumstances under which individuals may bring suit. [28 U.S.C. § 2680]. Perhaps the exception that is the most frequent retreat is the discretionary-function exception, which affords the United States protection against any FTCA claim “based upon the exercise or performance or failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government.” [28 U.S.C. § 2680(a) ]. The Supreme Court has added some flesh to that bare-boned statutory skeleton, setting up a two-part test to determine whether the discretionary-function exception has been triggered. [United States v. Gaubert, 499 U.S. 315, 322-23, 111 S.Ct. 1267, 1273-74, 113 L.Ed.2d 335 (1991) ]. First, for the exception to apply, the challenged act must involve an element of judgment. [Id. at 322, 111 S.Ct. at 1273]. In other words, the Government needs to establish there was “room for choice” in making the allegedly negligent decision. [Id. at 323, 111 S.Ct. at 1274], If a “federal statute, regulation or policy” specifically prescribes a course of action for the federal employee to follow, the employee has no choice but to adhere to the directive. [Id. at 322, 111 S.Ct. at 1273]. If the Government can establish that the challenged act involved an element of judgment, step two of the test is met and the discretionary-function exception will apply only if that judgment is of the kind that the exception was designed to shield. [Id. at 322-23, 111 S.Ct. at 1273-74],

Ashford, 511 F.3d at 505 (5th Cir.2007). Indeed, the Supreme Court case law interpreting the discretionary function exception unequivocally denies the Government its protection where the actions are unauthorized because they are unconstitutional, proscribed by statute or exceed the scope of an official’s authority. Castro v. United States, 560 F.3d 381 (5th Cir.2009) (revised edition), citing Thames Shipyard & Repair Co. v. United States, 350 F.3d 247, 254 (1st Cir.2003).

Accordingly, the second inquiry focuses on whether that judgment or choice is based on considerations of public policy. As stated in Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988), “The basis for the discretionary function exception was Congress’ desire to ‘prevent judicial “second-guessing” of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.’ United States v. Varig Airlines [467 U.S.] at 814, 104 S.Ct. at 2764-2765.” Berkovitz 486 U.S. at 537, 108 S.Ct. 1954. “The discretionary function exception insulates the Government from liability if the action challenged in the case involves the permissible exercise of policy judgment.” Id.

However, the Fifth Circuit specifically rejected the Government’s contention:

that if Government activity involves conduct that is rooted in policy, the discretionary function exception bars a cause of action based on that conduct unless the Government employee violated a mandatory regulation that restricts his discretion or judgment. Under this interpretation two types of activity would fall within the exception: violations of specific, mandatory regulations or statutes and ordinary common law torts where the exercise of discretion is not based on policy considerations.

Lively, 870 F.2d at 299. The exception is not so limited. The appellate court found that such an interpretation:

would subsume the FTCA: virtually any decision to act or not to act could be characterized as a decision grounded in economic, social or public policy and, thus, exempt. Although we construe the exception broadly, we have never construed it so that the exception swallows the rule. We therefore reaffirm our holding that in determining whether the discretionary function exception applies, we examine the nature and quality of the activity to determine if it is the type that Congress sought to protect.

Id.

1. First Issue — Whether a Federal Statute, Regulation or Policy Specifically Prescribes a Course of Action for the Corps such that It Had No Choice But To Comply with that Statute, Regulation or Policy

As noted above, Plaintiffs have based their Motion for Partial Summary Judgment on the argument that the Corps violated a number of mandates which deprives the Corps of the immunity of the discretionary function exception in the first instance. The Court will now examine each alleged defalcation,

a. Fish and Wildlife Coordination Act

The Fish and Wildlife Coordination Act was enacted in 1934 and codified at 16 U.S.C. § 662. In 1946, Congress amended the bill to provide:

Whenever the waters of any stream or other body of water are authorized to be impounded, diverted, or otherwise controlled for any purpose whatever by any department or agency of the United States, ... such department or agency first shall consult with the Fish and Wildlife Service....

1946 Amendment to the Fish and Wildlife Coordination Act of August 14, 1946, § 1, ch. 965, 60 Stat. 1080 (1946) (“FWCA”) (emphasis added). This language indicates the requirement to consult was triggered by authorization.

The Corps issued its Chiefs Report to Congress in 1951. Congress acted on that report in 1956 when it authorized construction of the MRGO. See Pub.L. No. 84-455, 70 Stat. 65 (1956). That legislation provided in its entirety as follows:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the existing project for Mississippi River Baton Rouge to the Gulf of Mexico is hereby modified to provide for the Mississippi River-Gulf Outlet to be prosecuted under the direction of the Secretary of the Army and supervision of the Chief of Engineers, substantially in accordance with the recommendation of the Chief of Engineers contained in House Document Numbered 245, Eighty-second Congress, at an estimated cost of $88,000,000: Provided, That when economically justified by obsolescence of the existing industrial canal lock, or by increased traffic, replacement of the existing lock or an additional lock with suitable connections is hereby approved to be constructed in the vicinity of Meraux, Louisiana, with type, dimensions, and cost estimates to be approved by the Chief of Engineers: Provided further, That the conditions of local cooperation specified in House Document Numbered 245, Eighty-second Congress, shall likewise apply to the construction of said lock and connection channels.

Approved March 29,1956.

Id. This authorization triggered the requirement to consult under the FWCA.

In 1958, the FWCA was further amended to provide:

(a) Except as hereafter stated in subsection (h) of this section, whenever, the waters of any stream or other body of water are proposed or authorized to be impounded, diverted, the channel deepened or the stream or other body of water otherwise controlled or modified for any purpose whatever, including navigation and drainage, by any department or agency of the United States, or by any public or private agency under Federal permit or license, such department or agency first shall consult with the United States Fish and Wildlife Service and such State agency for the purpose of determining means and measures that should be adopted to prevent the loss of or damage to such wildlife resources and improvement of such resources, shall be made an integral part of any report prepared or submitted by any agency of the Federal Government responsible for engineering surveys and construction.....

In furtherance of such purposes, the reports and recommendations [of those authorities] ... shall be made an integral part of any report prepared or submitted by any agency of the Federal Government responsible for engineering surveys and construction of such projects when such reports are presented to the Congress or to any agency or person having the authority or power, by administrative action or otherwise, (1) to authorize the construction of water-resource development projects or (2) to approve a report on the modiñcation or supplementation of plans for previously authorized projects, to which this Act applies.... The reporting officers in the project reports of the Federal agencies shall give full consideration to the reports and recommendations of the Secretary of the interior and to any report of the State agency of the wildlife aspects of such projects, and the project plan shall include such justifiable means and measures for wildlife purposes as the reporting agency finds should be adopted to obtain maximum overall project benefits.

FWCA, § 2(a)-(b), 72 Stat. 563, 564 (1958) (codified at 16 U.S.C. § 662(a)-(b)) (emphasis added).

The legislative history set forth in the Senate Report of July 28, 1958, demonstrates that the purpose of the amendment was indeed to improve upon failures found in the 1946 law:

... Despite the considerable accomplishments under the 1946 Coordination Act, the results have fallen far short of the results anticipated by the conservationists who sponsored the 1946 law. The limitations and deficiencies of the act will not permit the Fish and Wildlife Serve and the State Fish and Game Department to accomplish the objectives of fish and wildlife conservation and river basin development that are clearly essential if we are to preserve our fish and wildlife resources on a scale demanded by the people of the nation.

Principally the 1947 Act does not provide clear, general authority for the federal agencies who contract water-resource projects to incorporate in project construction and operation plans the needed measures of for fish and wildlife conservation. The Act is mainly concerned with compensatory measures to mitigate the loss of or damage to fish and wildlife resources; it contains no clear authority to permit the planning of installations of appropriate means and measures to take advantage of opportunities provided by water projects for enhancement or improvement for fish and wildlife resources.

Existing law is of questionable application to many authorized projects, a very serious shortcoming. The Corps of Engineers, for example has a backlog of 650 active authorized projects with an estimated cost of about $6 billion on which construction has not yet started. Many of these cover vast areas, containing some of the most important fish and wildlife resources of the nation.... Most of these projects have never been investigated from the standpoint of their effects on Fish and wildlife Resources. Many of them were authorize 15 or 20 years ago or more.

It would make good sense to have the policies and procedures of the Coordination Act applicable to them in order that the wishes of the Congress in enacting the 1946 statute and the proposed amendments can be observed.

Existing law has questionable application to projects of the Corps of Engineers for the dredging of bays and estuaries for navigation and filling purposes ... this is a particularly serious deficiency from the standpoint of commercial fishing interest. The dredging of these bays and estuaries along the coastlines to aid navigation and also to provide land fills for real estate and similar developments, ... has increased tremendously in the last 5 years. Obviously, dredging activity of this sort has a profound disturbing effect on aquatic life, including shrimp and other species of tremendous significance to the commercial fishing industry....

The amendments proposed by this bill would remedy these deficiencies and have several other important advantages. The Amendments, would provide that wildlife conservation shall receive equal consideration with other features in the planning of federal water resource development programs, this would have the effect of putting fish and wildlife on the basis of equality with flood control, irrigation, navigation, and hydroelectric power in our water resource programs, which is highly desirable and proper, and represents an objective long sought by conservationists of the nation.

1958 U.S.C.C.A.N. 3446, 3449-3450, s. Rep. No. 85-1981 (1958) (emphasis added).

This language eviscerates Plaintiffs’ argument that the language of the 1946 version of FWCA mandated that the Corps consult with the Fish and Wildlife Service and the head of the agency exercising administration over the wildlife resources in Louisiana during the project’s initial planning — that is prior to submission of its 1951 MR-GO Report to Congress and prior to the passage of the enabling legislation in 1956. The clear language of the 1946 version mandates that consultation was not required prior to authorization. Thus, there was no legal requirement to consult prior to authorization in 1956.

From the period of 1956 when the MRGO project was “authorized” through the passage of the 1958, the 1946 language indicates that consultation was necessary considering that the requirement to consult was triggered upon the authorization “to impound, divert, or otherwise control any for any purpose whatever by any department or agency of the United States any stream or other body of water.” Pretermitting whether the above-cited legislative history for the 1958 amendments raises a question as to whether this “mandate” applies to what was a dredging activity— the dredging of wetlands to recreate a navigational channel, Plaintiffs have not presented sufficient evidence to call into question any alleged non-compliance during this period of time. The documents provided by Plaintiffs and the United States demonstrate that the Corps indeed did consult with the U.S. Fish and Wildlife Service as provided for in 1946 Act in the post-authorization mode prior to the 1958 Amendment in the fall of that year. Exhibit 8 of Plaintiffs’ Motion (Doc. 16510) is a letter from the Secretary of the United States Department of the Interior to the Secretary of the Army dated September 23, 1957 stating that The United States Fish and Wildlife Service was initiating its investigation. Exhibit 7 of Plaintiffs’ Motion provides a preliminary draft of An Interim Report on Fish and Wildlife Resources as Related to Mississippi River-Gulf Outlet Project, Louisiana and An Outline of Proposed Fish and Wildlife Studies, An Interim report on Fish and Wildlife Resources as Related to Mississippi River-Gulf Outlet Project, Louisiana and An Outline of Proposed Fish and Wildlife Studies, prepared in April of 1958. In the report, the U.S. Fish and Wildlife Service noted that this work was in accordance with the District Engineer’s January 10 letter which “establishes the need and presents ... plans for further fish and wildlife studies upon which to base recommendations designed to conserve the resource.” See Plaintiffs’ Ex. 7 to Doc. 16510 at 2 {An Interim Report on Fish and Wildlife Resources as Related to Mississippi River-Gulf Outlet Project, Louisiana and An Outline of Proposed Fish and Wildlife Studies, April 1958).

A review of these documents indicate that the process may have been skewed. Indeed, in a press release issued on September 26, 1957 by the United States Fish and Wildlife Service the aforementioned letter is discussed as follows:

Mr. Seaton [the Secretary] emphasized the project had never been investigated by fish and wildlife conservation agencies as contemplated by the wildlife Coordination Act of 1946. However, as he stated, the United States Fish and Wildlife Service of the Department of the Interior is now initiating such investigations with funds transferred by the Corps of Engineers. Since these investigations are so far behind the stage reached in the engineering investigations, Secretary Seaton asked Secretary Brucker to take the necessary steps to have the Corps of Engineers bring the investigation of all phases of this project into balance.

(Plaintiffs’ Exhibit 25, Press Release of September 26, 1957). While it is disquieting to see that environmental concerns may have not had much sway, this decision was not contrary to a mandate as required for the Corps to lose the discretionary function exception under the first test.

Likewise, there is ample evidence in the MRGO design documents that post-authorization coordination occurred. In particular in the General Design Memorandum No. 2 (“GDM 2”) (Exhibit 12,-p. 14 and 24), paragraph 33 and paragraph 61 detail ongoing discussions between the two agencies. In fact, in August of 1957, the U.S. Fish and Wildlife Service and the Louisiana Wildlife and Fisheries Commission were fully appraised of the status of planning by the Corps. Note is made there of the Service’s preliminary report of April 1958.

Subsequently there were a number of conferences held between the two agencies — the Corps and the Service. In fact, certain recommendations were made by letter dated 5 January 1959. The recommendations for mitigating losses in the area between Paris Road and Bayou Dupre “were essentially complied with in the plan for construction.” (Plaintiffs’ Exhibit 12, ¶ 61). More recommendations are noted and the Corps committed to incorporating plans to mitigate losses in this document.

Nonetheless, the Corps did reject a proposal “to delay the construction of the canal from Pais Road through the marsh and sound areas until the fish and wildlife studies were completed” and that “a dike be constructed on the northeast side of the project rights of way when, or if, future studies reveal that fish and wildlife habitat northeast of the channel alignment is deteriorating as a result of project construction.” (Exhibit 13, ¶¶ a and f). This latter rejection was noted as not being applicable at this time.

Plaintiffs also argue that the Corps failed in its reporting obligations because it failed to detail any of the Service’s concerns in the Annual Reports of the Chief of Engineers on Civil Works Activities from 1958 through 2005. (Plaintiffs’ Exhibit 121). Plaintiffs contend that “the Corps supplied Congress with progress reports of the MR-GO’s construction, the costs incurred to date, and the percentage of completion” but did not include any mention of the Service’s predictions and recommendations to mitigate the environmental devastation from the construction of MRGO. However, the Court does not read the 1958 amendments so broadly. It only requires inclusion of such information to Congress in the context of FWCA when any report is prepared by the Corps when such reports are presented to the Congress (1) to authorize the construction of water-resource development projects or (2) to approve a report on the modification or supplementation of plans for previously authorized projects, to which this Act applies. The interpretation offered by Plaintiffs is, simply put, unfounded. Plaintiffs have not presented any evidence that any report of this nature was actually filed by the Corps and that such a report did not contain the required materials.

Based on the foregoing, the Court finds that the first prong of the discretionary function exception is satisfied with respect to the FWCA. The Court will now turn to NEPA.

b. National Environmental Policy Act (“NEPA”)

i. The Regulatory Scheme

Plaintiffs allege the following violations of NEPA’s mandate:

(a) failing to prepare mandatory detailed EISs within 30 days of authorizing legislation in 1976, 1986, and 1996;

(b) failing to prepare detailed EISs for requests for appropriations from 1970 through 1979;

(c) violating Executive Order 11990 Relative to NEPA;

(d) failing to prepare the 1976 EIS in compliance with NEPA; and

(e) failing to file Supplemental EISs when necessary.

In order to provide context to these allegations, a general review of the regulatory scheme is required.

NEPA embodies “a broad national commitment to protecting and promoting environmental quality.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 347, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) citing 42 U.S.C. § 4331. In O’Reilly v. United States Army, 477 F.3d 225 (5th Cir.2007), the appellate court succinctly reviewed NEPA’s framework, terminology and objectives.

“NEPA ... was intended to reduce or eliminate environmental damage and to promote ‘the understanding of the ecological systems and natural resources important to’ the United States.” Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 756, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) (quoting 42 U.S.C. § 4321). Instead of mandating particular environmental results, NEPA “imposes procedural requirements on federal agencies, requiring agencies to analyze the environmental impact of their proposals and actions.” Coliseum Square Ass’n, Inc. v. Jackson, 465 F.3d 215, 224 (5th Cir.2006) (quoting Pub. Citizen, 541 U.S. at 756-57, 124 S.Ct. 2204).

O’Reilly, All F.3d at 228.

The lynchpin of the NEPA as set forth in § 4332(2)(C) requires all agencies of the Federal government to:

(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv)the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long term productivity, and

(v)any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

42 U.S.C. § 4332(2)(C); see also Coliseum Square Ass’n, Inc. v. Jackson, 465 F.3d 215, 224 (5th Cir.2006). This mandated detailed report, known as an Environmental Impact Statement or “EIS,” serves a dual purpose:

It ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decision making process and the implementation of that decision.

Robertson, 490 U.S. at 349, 109 S.Ct. 1835. Thus, as stated early on in the case law concerning NEPA:

Environmental impact statements are not confidential or internal documents for agency eyes alone...., ‘NEPA was intended not only to insure that the appropriate responsible official considered the environmental effects of the project, but also to provide Congress (and others receiving such recommendation or proposal) with a sound basis for evaluating the environmental aspects of the particular project or program.’ [Save Our Ten Acres v. Kreger;] 472 F.2d [463] at 466 [ (5th Cir.1973) ].

Environmental Defense Fund, Inc. v. Corps of Engineers of U.S. Army, 492 F.2d 1123, 1140 (5th Cir.1974) (emphasis added).

EIS

Federal agencies receive guidance in their preparation of an EIS from the Council of Environmental Quality (“CEQ”). “Established by NEPA with the authority to issue regulations interpreting that statute, the CEQ has promulgated regulations determining what actions are subject to that statutory requirement.” Coliseum Square Ass’n, 465 F.3d at 224 citing 40 C.F.R. § 1500.3; see also Pub. Citizen, 541 U.S. at 757, 124 S.Ct. 2204.

As noted, NEPA requires an agency to produce a full EIS only where the agency proposes to undertake a project that qualifies as a “major Federal actionQ” and then only when that action “significantly affect[s] the quality of the human environment.” O’Reilly, 477 F.3d at 228 citing 42 U.S.C. § 4332(2)(C) and Coliseum Square, 465 F.3d at 228. The CEQ regulations provide definitions for a number of these determinative terms.

Major Federal Action

CEQ defines a “[m]ajor Federal action” as “actions with effects that may be major and which are potentially subject to Federal control and responsibility.” The relevant regulation continues:

(a) Actions include new and continuing activities, including projects and programs entirely or partly financed, assisted, conducted, regulated or approved by federal agencies; new or revised agency rules, regulations, plans, policies, or procedures; and legislative proposals (§§ 1506.8, 1508.17) ...

(b) Federal actions tend to fall within one of the following categories:

(3) Adoption of programs, such as a group of concerted actions to implement a specific policy or plan; systematic and connected agency decisions allocating agency resources to implement a specific statutory program or executive directive.

(4) Approval of specific projects, such as construction or management activities located in a defined geographic area. Projects include actions approved by permit or other regulatory decision as well as federal and federally assisted activities.

40 C.F.R. § 1508.18 (emphasis added). Thus, the need for an EIS may arise where a continuing activity causes significant effects with respect to a specific construction project in a defined geographic area.

Significantly

The regulations also provide a definition for the term “significantly” which states in relevant part:

Significantly as used in NEPA requires considerations of both context and intensity:

(a) Context. This means that the significance of an action must be analyzed in several contexts such as society as a whole (human, national), the affected region, the affected interests, and the locality. Significance varies with the setting of the proposed action. For instance, in the case of a site-specific action, significance would usually depend upon the effects in the locale rather than in the world as a whole. Both short- and long-term effects are relevant.

(b) Intensity. This refers to the severity of impact. Responsible officials must bear in mind that more than one agency may make decisions about partial aspects of a major action. The following should be considered in evaluating intensity:

(1) Impacts that may be both beneficial and adverse. A significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial.

(2) The degree to which the proposed action affects public health or safety.

(3) Unique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas.

(4) The degree to which the effects on the quality of the human environment are likely to be highly controversial.

(5) The degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks.

(6) The degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration.

(7) Whether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts.

(8) The degree to which the action may adversely affect districts, sites, highways, structures, or objects listed in or eligible for listing in the National Register of Historic Places or may cause loss or destruction of significant scientific, cultural, or historical resources.

(9) The degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species Act of 1973.

(10) Whether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment.

40 C.F.R. § 1508.27 (emphasis added). Thus, parsing this regulation, an action could be considered “significant” where the “context” is (a) localized and (b) has long-term effects and where the “intensity level” is determined to be severe (c) by balancing beneficial versus adverse effects noting that even if the balance of the effects are considered beneficial, if they are severe a report is mandated, (d) by determining whether it would effect a unique characteristic of the geographic area such as wetlands, (e) by ascertaining whether it involves uncertainty or unknown risks to the human environment and (f) by determining whether one would reasonably anticipate a cumulatively significant impact on the environment.

Cumulative Impact and Improper Segmentation

“Cumulative impact” is also defined as “the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions.... Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.” 40 C.F.R. § 1508.7. In applying this regulation, the Fifth Circuit instructs that “a consideration of cumulative impacts must also consider ‘[c]losely related and proposed or reasonably foreseeable actions that are related by timing or geography.’” O’Reilly, 477 F.3d at 234-35, citing Vieux Carre Prop. Owners, Residents & Assoc., Inc. v. Pierce, 719 F.2d 1272, 1277 (5th Cir.1983).

For instance in O’Reilly, the residents of a Louisiana parish affected by dredging and filling of wetlands by a private land developer sued the Corps challenging its issuance of a finding of no significant impact (FONSI) {See discussion infra re: EAS) with the issuance of a permit to dredge. In that case, the Court found that the Corps, prior to the request to dredge at issue therein, had already issued 72 permits within a three mile radius of the proposed development covering a total of 18,086.4 acres of which 400.9 were wetlands. Id. at 235. In the EA, the Corps stated how “fragmentation” of the wetlands can occur resulting in increased environmental pressures; that there could be a major cumulative impact as a result of all of the dredging if the local population did not become more “pro-active” and acknowledged that this was only the first phase of a project that might have as many as three phases. The appellate court noted, “Such language would seem to warrant a finding of significance, but instead the Corps states, without any exposition, that ‘mitigation for impact caused by the proposed project, possible future project phases, and all Corps permitted projects will remove or reduce e[x]pected impacts.’ ” The court then found that this bare assertion without an explanation of the basis for it rendered a finding that the Corps had acted arbitrarily in the issuance of that EA.

A “separate-but-similar” concern is “improper segmentation” which occurs when “federal agencies may plan a number of related actions but may decide to prepare impact statements on each action individually rather than prepare an impact statement on the entire group. This decision creates a ‘segmentation’ or ‘piecemealing’ problem.” O’Reilly, All F.3d at 236 n. 10. “An analysis of improper segmentation, however, requires that where ‘proceeding with one project will, because of functional or economic dependence, foreclose options or irretrievably commit resources to future projects, the environmental consequences of the projects should be evaluated together.’ ” Id. at 236, citing Daniel R. Madnelker, NEPA Law and Litigation § 9:11 (2006).

The commentator noted that with respect to cumulative impacts:

A common example is a highway planned to connect two cities which the highway agency divides into two segments. It then prepares an impact statement covering only the first segment, which does no create environmental problems. The second segment does create environmental problems because it goes through a wilderness area. An objection may be made that by preparing an impact statement only on the first segment the highway agency has committed itself to a continuation of the highway through the wilderness area. If the highway agency had considered both segments together, it could have considered the cumulative impact of the highway on the wilderness area. It could have also considered a location for the highway that would have avoided the wilderness area. The segmentation of the highway in this example has allowed the highway agency to subvert NEPA’s purposes.

Daniel R. Madnelker, NEPA Law and Litigation § 9:11.

EAS

The regulations further provide a vehicle for an agency to prepare a less vigorous report which is not sent to Congress known as an Environmental Assessment (EA) where the proposed action is neither “categorically excluded from the requirement to produce an EIS nor would clearly require the production of an EIS. See §§ 1501.4(a)-(b).” Department of Transp. v. Public Citizen, 541 U.S. 752, 757-58, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) (emphasis added). The Supreme Court in Public Citizen continued:

The EA is to be a “concise public document” that “[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an [EIS].” § 1508.9(a). If, pursuant to the EA, an agency determines that an EIS is not required under applicable CEQ regulations, it must issue a “finding of no significant impact” (FONSI), which briefly presents the reasons why the proposed agency action will not have a significant impact on the human environment. See §§ 1501.4(e), 1508.13.

Id. The O’Reilly case demonstrates that an EA can be insufficient if indeed the circumstances clearly require the production of an EIS or a SEIS because of the “incremental impact of the action when added to other past, present, and reasonably foreseeable future actions” such as the continual dredging of the MRGO.

Supplemental Statements

“[An] agency bears a continuing obligation to update its environmental evaluation in response to substantial changes to the proposed action or significant new circumstances. 40 C.F.R. § 1502.9(c)(l)(1992). The results of this later evaluation are published in a supplemental environmental impact statements (“SEIS”). Based on the findings of the SEIS, the agency must consider anew whether to proceed with the proposed project.”

West Branch Valley Flood Protection Association v. Stone, 820 F.Supp. 1, 5-6 (D.D.C.1993); Association Concerned About Tomorrow, Inc. v. Dole, 610 F.Supp. 1101, 1112 (N.D.Tex.1985). That process is triggered when “new information presents a ‘seriously different picture of the environmental landscape’ such that another in-depth look at the environment is necessary.” Id., citing Wisconsin v. Weinberger, 745 F.2d 412, 418 (7th Cir.1984). Section § 1502.9(c)(1) of the regulations instructs agencies on the on the procedures supplemental statements. It states:

(c) Agencies:

(1) Shall prepare supplements to either draft or final environmental impact statements if:

(I) The agency makes substantial changes in the proposed action that are relevant to environmental concerns; or

(ii) there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.

40 C.F.R. § 1502.9(c)(1) (emphasis added).

In Friends of the Clearwater v. Dombeck, 222 F.3d 552, 557-58 (2000), the Ninth Circuit noted that in view of NEPA’s purpose:

an agency that has prepared an EIS cannot simply rest on the original document. The agency must be alert to new information that may alter the results of its original environmental analysis, and continue to take a “hard look at the environmental effects of [its] planned action, even after a proposal has received initial approval.” [Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 374, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989).](citations and quotations omitted). It must “ma[ke] a reasoned decision based on ... the significance — or lack of significance — of the new information,” Id. at 378, 109 S.Ct. 1851, and prepare a supplemental EIS when there are “significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” 40 C.F.R. § 1502.9(c)(1)(h). “If there remains major Federal action to occur, and the new information is sufficient to show that the remaining action will affect the quality of the human environment in a significant manner or to a significant extent not already considered, a supplemental EIS must be prepare.” Marsh, 490 U.S. at 374,109 S.Ct. 1851.

Friends of the Clearwater v. Dombeck, 222 F.3d 552, 556-58 (2000) (footnote omitted); Blue Mountains Biodiversity Project v. United States Forest Service, 229 F.Supp.2d 1140, 1147-48 (D.Or.2002). Moreover, “an agency is not free to ignore the possible significance of new information. Rather, NEPA requires that the agency take a “hard look” at the new information to determine whether a SEIS is necessary.” Blue Mountains, 229 F.Supp.2d at 1148, citing Headwaters v. BLM, 914 F.2d 1174, 1177 (9th Cir.1990).

Appropriations Not Included in NEPA Requirements

As to the reporting requirements, clearly appropriation bills do not constitute “legislation” under the NEPA rubric. In Andrus v. Sierra Club, 442 U.S. 347, 99 S.Ct. 2335, 60 L.Ed.2d 943 (1979), the Supreme Court discussed the requirements concerning the filing of EISs in the context of “proposals for legislation and other major Federal actions” as found in 42 U.S.C. § 4332(2)(C). The issue presented in that case was whether appropriation requests are “proposals for legislation” as contemplated under NEPA. In reaching their conclusion that the relevant statute does not require an EIS to accompany appropriation requests, the Court provided an insightful history of the regulations.

In 1970, President Nixon ordered CEQ to issue guidelines concerning NEPA. Id. at 357 n. 15, 99 S.Ct. 2335. The guidelines, were promulgated in 1970 and revised in 1971 and 1973, included “appropriations” in the terminology requiring an EIS, but these guidelines were advisory in nature. Id. However, in 1977 President Carter ordered the creation of a single set of uniform mandatory regulations which are now codified at 40 C.F.R. §§ 1500-1518. The new regulation provides, specifically, “Legislation includes a bill or legislative proposal to Congress developed by or with the significant cooperation and support of a Federal agency, but does not include requests for appropriations.” 40 C.F.R. § 1508.17. In addition, this provi