Breaking The Golden Rule: Judicial Review of Federal Water Project Planning

Oliver A. Houck, Breaking The Golden Rule: Judicial Review of Federal Water Project Planning, 65 Rutgers Law Review 1-57 (2012)

From the Abstract

The U.S. Army Corps of Engineers is one of the oldest institutions
of the federal government, and its dams, levees, and waterways have
changed the American landscape. It is also a conflicted
organization, responding both to the President and to the Congress,
and struggles between them over Corps direction date back to the
age of Jackson. The economic and political stakes in these endeavors
are huge. So are their impacts, which have eliminated towns, prime
farmland, native reservations, wildlife species, and entire
ecosystems. The law behind Corps projects is scanty and the
discretion virtually unbridled, but for a single rule: the benefits, “to
whomsoever they may accrue,” are to exceed the costs. As modest as
this requirement may appear, it has become water resource
development’s Golden Rule. And a field of conflict.

Over the years, a growing appetite for new Corps projects invited
gross manipulations of benefits and costs to justify them.
Presidential attempts to rein them in were frustrated by a Congress
intent on funneling yet more Corps work back home. Starting in the
l970s, local communities, sportsmen’s organizations, and others
then turned to the third branch of government for relief, the courts.
While these plaintiffs brought several claims, the most fundamental
was that the benefits did not exceed the costs, not even close. In the
vanguard of these cases was a navigation canal along the Gulf
Coast called Lower Atchafalaya, Bayous Chene, Boeuf, and Black.
At issue was whether the judiciary had any right to review these
matters at all. The case encapsulate the issue, which remains with
us to this day.

What follows is at one level the story of the Lower Atchafalaya
litigation, told as history and led by its actors to an uncertain
conclusion. Behind it, however, is the nature of this remarkable
institution, the Corps of Engineers, and of executive attempts to
control it, leading to President Carter’s proposal to kill as many as
eighty Corps projects at the start of his term, again on benefit-cost
grounds. Including the Lower Atchafalaya project. The two stories
are wound together in time, and in this recitation as well. They will,
among other things, illustrate both the power and limits of law.
They will also illustrate the difficulty in rethinking institutions on
which so many, for many different agendas, have come to depend.