Ctr. for Biological Diversity, Manasota-88, Inc. v. U.S. Army Corps of Eng'rs

• Decision Date: 04 November 2019
• Docket Number: No. 18-10541,18-10541
• Citation: 941 F.3d 1288
• Parties: CENTER FOR BIOLOGICAL DIVERSITY, Manasota-88, Inc., People for Protecting Peace River, Inc., Suncoast Waterkeeper, Plaintiffs - Appellants, v. U.S. ARMY CORPS OF ENGINEERS, Todd T. Semonite, Lt. Gen., in his official capacity as Commanding General and Chief of Engineers of the U.S. Army Corps of Engineers, JASON A. KIRK, Col., in his official capacity as District Commander of the U.S. Army Corps of Engineers, U.S. Department of the Interior, David Bernhardt, in his official capacity as Secretary of the U.S. Department of the Interior, et al., Defendants - Appellees, Mosaic Fertilizer, LLC, Intervenor-Defendant - Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

941 F.3d 1288

CENTER FOR BIOLOGICAL DIVERSITY, Manasota-88, Inc., People for Protecting Peace River, Inc., Suncoast Waterkeeper, Plaintiffs - Appellants,

v. U.S. ARMY CORPS OF ENGINEERS, Todd T. Semonite, Lt. Gen., in his official capacity as Commanding General and Chief of Engineers of the U.S. Army Corps of Engineers, JASON A. KIRK, Col., in his official capacity as District Commander of the U.S. Army Corps of Engineers, U.S. Department of the Interior, David Bernhardt, in his official capacity as Secretary of the U.S. Department of the Interior, et al., Defendants - Appellees,Mosaic Fertilizer, LLC, Intervenor-Defendant - Appellee.

No. 18-10541

United States Court of Appeals, Eleventh Circuit.

November 4, 2019

Hannah Connor, Jaclyn Lopez, Elise Pautler Bennett, Rachael Curran, Center for Biological Diversity, St. Petersburg, FL, John Peter Rose, Center for Biological Diversity, Oakland, CA, for Plaintiffs-Appellants.

Jeffrey Steven Beelaert, U.S. Department of Justice Appellate Section, Environment and Natural Resources Div., Mark A. Brown, USDOJ Environmental & Natural Resources Division, Debra Carfora, Paul Cirino, U.S. Department of Justice, Environment & Natural Res. Div., Washington, DC, for Defendants-Appellees U.S. Army Corps of Engineers, Maj. Gen. Todd T. Semonite, Jason A. Kirk, U.S. Department of the Interior, Secretary, U.S. Department of the Interior.

George Peter Sibley, III, Jonathan Lee Caulder, Hunton Andrews Kurth, LLP, Richmond, VA, Kerry L. McGrath, Andrew J. Turner, Hunton Andrews Kurth, LLP, Washington, DC, Jamie Zysk Isani, Hunton Andrews Kurth, LLP, Miami, FL, Susan Lynne Stephens, Timothy Michael Riley, Amelia Savage, Hopping Green & Sams, PA, Tallahassee, FL, for Defendant-Appellee Mosaic Fertilizer, LLC.

Before ED CARNES, Chief Judge, and MARTIN and ROGERS,^* Circuit Judges.

ROGERS, Circuit Judge:

Under the Clean Water Act, the Army Corps of Engineers regulates discharges into wetlands that are waters of the United States, and must consider the direct and indirect environmental effects of such discharges before issuing a permit to discharge. Mining for phosphate ore (used to make phosphoric acid that is in turn used to make fertilizer) produces dredged and fill material that Mosaic, a fertilizer manufacturer engaged in phosphate mining, seeks to discharge into such wetlands. The subsequent process of manufacturing fertilizer from the mined phosphate ore generates a radioactive byproduct, phosphogypsum. The primary question in this case is whether the Corps must take into account certain environmental effects of producing and storing phosphogypsum—distant in time and place from the wetland discharges accompanying the phosphate mining—merely because phosphogypsum is a byproduct of manufacturing fertilizer from the mined ore. While it is true that the Corps must consider indirect environmental effects, the Supreme Court has made clear that indirect effects must be proximate, and do not include effects that are insufficiently related to an agency’s action. Dep’t of Transp. v. Pub. Citizen , 541 U.S. 752, 767, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004). In assessing this proximate cause limitation, the Corps may reasonably take into account the fact that the distantly caused effects in question are subject to independent regulatory schemes. Id. In granting the discharge permit in this case without addressing the environmental effects of phosphogypsum, the Corps relied in part on the fact that other agencies directly regulate these effects. Such reasoning in this case by the Corps was not arbitrary, capricious, or an abuse of discretion. Other bases asserted for rejecting the Corps’ discharge permit also lack merit, and the district court accordingly properly upheld the Corps’ permit.

I.

Mosaic wishes to extend its mining operations within the central Florida phosphate mining district. Mosaic must obtain mining permits from the Florida Department of Environmental Protection ("FDEP"), which, under authority delegated to it by the EPA, issues permits for phosphate mining in Florida, with conditions and requirements regarding pollutant discharge. See 33 U.S.C. §§ 1311(a), 1342(a) (describing the National Pollutant Discharge Elimination System ("NPDES") permit program). In connection with these planned mining operations, Mosaic seeks to discharge dredged and fill material into waters of the United States. This activity is subject to regulation under the Clean Water Act, which prohibits the discharge of pollutants into the waters of the United States absent an appropriate permit. See id. § 1344(a). The Corps has regulatory authority over the applicable permit here, the Section 404 permit, to allow the discharge of dredged or fill material into navigable waters. See id. § 1344.

In 2010 and 2011, Mosaic sought four Section 404 permits under the Clean Water Act to carry out this discharge activity.¹ The Corps’ issuance of a Section 404 permit counts as a major federal action, so the Corps was required to consider the environmental impact of issuing such a permit to Mosaic, which it did. As documented in its 500-page report, the Corps considered—among many other things—direct effects, such as how the discharge of dredged material into surrounding wetlands might affect the water quality of those wetlands. See 40 C.F.R. § 1508.8(a). The Corps also considered indirect effects, such as how that discharge might through stormwater runoff be carried to and affect the quality of distant waters. Id. § 1508.8(b).

Because the Corps’ action constitutes a major federal action, the Corps must also comply with the National Environmental Policy Act ("NEPA"). NEPA requires federal agencies to "take a ‘hard look’ at the potential environmental consequences of their actions." Ohio Valley Envt’l Coal v. Aracoma Coal Co. , 556 F.3d 177, 191 (4th Cir. 2009) (quoting Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) ). Under NEPA, agencies are required to produce environmental-impact statements that account for the direct, indirect, and cumulative effects of major proposed actions. Direct effects are "caused by the action and occur at the same time and place"; indirect effects "are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable." 40 C.F.R. § 1508.8. By "reasonably foreseeable," the regulations mean effects that are "sufficiently likely to occur that a person of ordinary prudence would take [them] into account in reaching a decision." See EarthReports, Inc. v. FERC , 828 F.3d 949, 955 (D.C. Cir. 2016) (quoting Sierra Club v. FERC , 827 F.3d 36, 47 (D.C. Cir. 2016) ).

The Corps determined that Mosaic’s four mining-related projects had similarities that provided a basis for evaluating their environmental consequences together in one area-wide environmental-impact statement. The area-wide environmental-impact statement served as the project-specific NEPA analysis for each of the four permit applications. In 2016, the Corps published a draft Section 404 analysis and public-interest review for one of the proposed projects, the South Pasture Mine Extension. In doing so, the Corps also prepared a supplemental environmental assessment focusing on the South Pasture Mine Extension, to be read in conjunction with the area-wide environmental-impact statement for purposes of NEPA. In connection with the proposed Section 404 permit for the South Pasture Mine Extension, the Corps formally consulted with the Fish and Wildlife Service to obtain a biological opinion analyzing the potential effects that the mine extension would have on certain species. Ultimately, in November 2016, the Corps issued Mosaic a Section 404 permit for the South Pasture Mine Extension.

Accordingly, Mosaic will be able to discharge dredged and fill material into the waters of the United States in connection with mining phosphate at the South Pasture Mine Extension for subsequent use in fertilizer production. Phosphate mining is a form of strip mining. After excavating the sand, clay, and phosphate ore from the site, Mosaic engages in a beneficiation process to separate the sand and clay from the valuable phosphate ore. The phosphate ore is then transported to Mosaic’s fertilizer plants for processing into phosphoric acid. Phosphoric acid in turn is used to produce fertilizer. But the process of producing phosphoric acid generates waste in the form of phosphogypsum, a radioactive byproduct. Approximately five tons of phosphogypsum waste is created for every ton of useful phosphoric acid produced, for a total of over 30 million tons generated each year. Because phosphogypsum contains radioactive uranium and other metals that the EPA considers to pose a risk to humans and the environment, it must be stored and left to "weather" (reduce in radioactivity) in large open-air "stacks" that are hundreds of acres wide and hundreds of feet tall. The Corps determined that the environmental effects of phosphogypsum production and storage fell outside the scope of its NEPA review. This led Bio Diversity to file suit.

Bio Diversity’s complaint raises several claims under the Administrative Procedure Act ("APA"), NEPA, and the Endangered Species Act. The Corps moved for and was granted summary judgment. The district court found that there was nothing arbitrary and capricious about the Corps’ determination that phosphogypsum stacks fell outside the scope of its NEPA analysis. Rather, the district court found that the Corps rationally treated fertilizer plants and their phosphogypsum waste as independent from the mining activities authorized by the Section 404 permit. The district court also approved the Corps’ decision to analyze all four closely related projects in a single area-wide environmental-impact statement for NEPA purposes. Finally, the court rejected Bio Diversity’s claim under the Endangered Species Act that the Corps was required to consult with the Fish and...