Food & Water Watch v. U.S. Dep't of Agric.
| Decision Date | 26 March 2020 |
| Docket Number | Civil Action No. 17-1714 (BAH) |
| Citation | 451 F.Supp.3d 11 |
| Court | U.S. District Court — District of Columbia |
| Parties | FOOD & WATER WATCH, Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Defendants. |
Tarah Elizabeth Heinzen, Food & Water Watch, Portland, OR, Kevin M. Cassidy, Earthrise Law Center, Norwell, MA, for Plaintiff.
Krystal-Rose Perez, Department of Justice Natural Resources Sect, Environment & Natural Resources Division, Washington, DC, for Defendants.
The plaintiff, Food & Water Watch ("FWW"), has brought suit against three defendants, the United States Department of Agriculture ("USDA"), the Farm Service Agency ("FSA"), and Deanna Dunning, in her official capacity as an FSA Farm Loan Officer (collectively, "defendants"), under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551 et seq. , and the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq. , challenging an environmental assessment completed by the defendants in connection with a "federal loan guarantee to construct and operate ... a poultry concentrated animal feeding operation (CAFO)" owned and operated by a nonparty, "One More Haul Farm (OMH)." Am. Compl. ¶ 1, ECF No. 54. As relief, the plaintiff seeks to vacate and set aside the challenged environmental assessment and to enjoin the related loan guarantee. Id. at 38–39; see also Pl.'s Mot. Summ. J. & Mem. P. & A. ("Pl.'s Mem.") at 44, ECF No. 57 (requesting order directing the parties "to confer regarding appropriate remedies").
The parties have now cross-moved for summary judgment, see Pl.'s Mem.; Defs.' Combined Cross Mot. Summ. J. & Opp'n Pl.'s Mot. Summ. J. ( ), ECF No. 60, and the plaintiff also moves to strike a declaration submitted by the defendants, see Pl.'s Mot. Strike Decl. William J. Rutter ("Pl.'s Mot. Strike"), ECF No. 61. For the reasons described below, the plaintiff's motion for summary judgment is denied, the defendants' cross-motion is granted, and the plaintiff's motion to strike is denied as moot.
The statutory framework governing the plaintiff's claims is discussed first, followed by the details of the loan guarantee and environmental assessment at issue in this case.
NEPA represents "a broad national commitment to protecting and promoting environmental quality." Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 348, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) (citing 42 U.S.C. § 4331 ). To this end, NEPA was created, in part, to "establish a set of ‘action forcing’ procedures requiring an environmental impact statement on any proposed major Federal action which could significantly affect the quality of the environment." S. REP. No. 94-152, at 3 (1975) (). Among these procedures, NEPA requires federal agencies, "to the fullest extent possible," to prepare and include an Environmental Impact Statement ("EIS") in "every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C) ; see also Winter v. NRDC , 555 U.S. 7, 15–16, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).1 As part of this process, an agency must consider multiple factors, including "the environmental impact of the proposed action," "any adverse environmental effects which cannot be avoided should the proposal be implemented," and "alternatives to the proposed action." 42 U.S.C. § 4332(2)(C)(i)–(iii). "The statutory requirement that a federal agency contemplating a major action prepare such an [EIS] serves NEPA's ‘action-forcing’ purpose in two important respects," Robertson , 490 U.S. at 349, 109 S.Ct. 1835, by (1) "ensur[ing] that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts," and (2) "guarantee[ing] that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision," Blue Ridge Envtl. Def. League v. NRC , 716 F.3d 183, 188 (D.C. Cir. 2013) (quoting Robertson , 490 U.S. at 349, 109 S.Ct. 1835 ).
Notably, NEPA is " ‘essentially procedural,’ " intended only "to ensure ‘fully informed and well-considered decision[s]’ by federal agencies." Del. Riverkeeper Network v. FERC , 753 F.3d 1304, 1309–10 (D.C. Cir. 2014) (alteration in original) (quoting Vt. Yankee Nuclear Power Corp. v. NRDC , 435 U.S. 519, 558, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978) ). In other words, NEPA "does not mandate particular results in order to accomplish its ends," id. at 1310 (internal quotation mark omitted) (quoting Dep't of Transp. v. Pub. Citizen , 541 U.S. 752, 756–57, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) ), and does not "require agencies to elevate environmental concerns over other appropriate considerations," WildEarth Guardians v. Jewell , 738 F.3d 298, 303 (D.C. Cir. 2013) (quoting Balt. Gas & Elec. Co. v. NRDC , 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) ). Nor does NEPA necessarily require "the best decision." Id. (internal quotation mark omitted) (quoting New York v. NRC , 681 F.3d 471, 476 (D.C. Cir. 2012) ); see also Sierra Club v. FERC , 827 F.3d 59, 68 (D.C. Cir. 2016) (). Thus, "NEPA is ‘not a suitable vehicle’ for airing grievances about the substantive policies adopted by an agency, as ‘NEPA was not intended to resolve fundamental policy disputes.’ " Grunewald v. Jarvis , 776 F.3d 893, 903 (D.C. Cir. 2015) (quoting Found. on Econ. Trends v. Lyng , 817 F.2d 882, 886 (D.C. Cir. 1987) ).
"The Council of Environmental Quality (CEQ), established by NEPA with authority to issue regulations interpreting it, has promulgated regulations to guide federal agencies in determining what actions are subject to" the EIS requirement. Pub. Citizen , 541 U.S. at 757, 124 S.Ct. 2204 (citing 40 C.F.R. § 1500.3 ). Under these regulations, an agency may prepare "a more limited document, an Environmental Assessment (EA), if the agency's proposed action neither is categorically excluded from the requirement to produce an EIS nor would clearly require the production of an EIS." Id. (citing 40 C.F.R. § 1501.4(a), (b) ). An EA is a " ‘concise public document’ that ‘[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an [EIS].’ " Id. (alterations in original) (quoting 40 C.F.R. § 1508.9(a) ). If, after conducting an EA, the agency determines that an EIS is not required under the applicable 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." Id. at 757–58, 124 S.Ct. 2204 (citing 40 C.F.R. §§ 1501.4(e), 1508.13 ).
All federal agencies are required to comply with NEPA and with CEQ regulations, but the CEQ regulations "allow each agency flexibility in adapting its implementing procedures." 40 C.F.R. § 1507.1 ; see also id. § 1507.3(a) (). At the time of the challenged agency action at issue here, FSA had promulgated such regulations. See 7 C.F.R. §§ 1940.301 – 350 (2015).2 Those FSA regulations require the preparation of an EA for "Class I" and "Class II" agency actions. Id. §§ 1940.311–312. "Class I" actions are "smaller scale approval actions," id. § 1940.311, including certain expansions of FHA housing projects, certain community and business grant programs, and certain farm programs, id. § 1940.311(a)–(c), and require a less rigorous EA, id. § 1940.311 (). "Class II" actions, by contrast, "are basically those which exceed the thresholds established for Class I actions and, consequently, have the potential for resulting in more varied and substantial environmental impacts." Id. § 1940.312. "A more detailed environmental assessment is, therefore, required for Class II actions in order to determine if the action requires an EIS." Id.
"Class II" actions include certain activities that "involve a livestock-holding facility or feedlot," id. § 1940.312(b)(1), such as "[f]inancial assistance for a livestock-holding facility or feedlot located in a sparsely populated farming area having a capacity as large or larger than," inter alia , "100,000 laying hens or broilers when [the] facility has unlimited continuous flow watering systems," id. § 1940.312(c)(9), as well as "[f]inancial assistance for a livestock-holding facility or feedlot which either could potentially violate a State water quality standard or is located near a town or collection of rural homes which could be impacted by the facility," id. § 1940.312(c)(10). When the financial assistance, such as a loan guarantee, includes mitigation measures to be taken in connection with the assistance, such measures "must be documented in the assessment ... and placed in the offer of financial assistance as special conditions." Id. § 1940.318(g). In addition, FSA is responsible for "postapproval inspection and monitoring of approved projects" to "ensure that those measures which were identified in the preapproval stage and required to be undertaken in order to reduce adverse environmental impacts are effectively implemented." Id. § 1940.330(a).
FSA, formerly known as the "Farmers Home Administration," oversees agricultural support programs including, as relevant here, the Guaranteed Farm Loan Program. See 7 C.F.R. §§ 762.101 et seq. Under this program, FSA...
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Food & Water Watch v. U.S. Dep't of Agric.
...to the Agency, holding that the environmental assessment satisfied the requirements of NEPA. See Food & Water Watch v. U.S. Dep't of Agric. , 451 F. Supp. 3d 11, 28, 54–55 (D.D.C. 2020). Food & Water Watch timely appealed.II. This case begins and ends with standing, "an essential and unchan......