Ky. Riverkeeper, Inc. v. Rowlette

Citation714 F.3d 402
Decision Date22 April 2013
Docket NumberNo. 11–6083.,11–6083.
PartiesKENTUCKY RIVERKEEPER, INC.; Kentuckians for the Commonwealth, Inc.; Kentucky Waterways Alliance, Inc., Plaintiffs–Appellants, v. Robert A. ROWLETTE, Jr., et al., Defendants, Carl A. Strock, Lieutenant General, Chief of Engineers and Commander of the U.S. Army Corps of Engineers; Raymond G. Midkiff, Colonel, District Engineer, U.S. Army Corps of Engineers, Louisville District; Dana R. Hurst, Colonel, District Engineer, U.S. Army Corps of Engineers, Huntington District; Steven J. Roehmhildt, Colonel, District Engineer, U.S. Army Corps of Engineers, Nashville District, Defendants–Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

OPINION TEXT STARTS HERE

ARGUED:James M. Hecker, Public Justice, Washington, D.C., for Appellants. Tamara N. Rountree, United States Department of Justice, Washington, D.C., for Appellees. ON BRIEF:James M. Hecker, Public Justice, Washington, D.C., Stephen A. Sanders, Appalachian Citizens Law Center, Whitesburg, Kentucky, Joseph M. Lovett, Appalachian Mountain Advocates, Lewisburg, West Virginia, for Appellants. Tamara N. Rountree, United States Department Of Justice, Washington, D.C., for Appellees.

Before: SILER and COOK, Circuit Judges; STEEH, District Judge. *

OPINION

COOK, Circuit Judge.

PlaintiffsAppellants Kentucky Riverkeeper, Inc., Kentucky Waterways Alliance, Inc., and Kentuckians for the Commonwealth, Inc. (collectively Riverkeeper) sued the Army Corps of Engineers alleging violations of the Clean Water Act (CWA), 33 U.S.C. § 1344(e), the National Environmental Protection Act (NEPA), 42 U.S.C. § 4332(2)(C), and the Administrative Procedure Act (APA), 5 U.S.C. § 706, during the Corps' issuance of two nationwide coal-mining waste-discharge permits in 2007. The district court granted summary judgment to the Corps, and Riverkeeper appeals. During Riverkeeper's appeal, the two permits at issue expired. For the following reasons, the case remains in controversy and we REVERSE the district court's judgment in part.

I.
A. The Nationwide Permits: NWP 21 and NWP 50

The Clean Water Act requires the Army Corps of Engineers to issue permits for mining activities that discharge dredged or fill material into United States waterways. 33 U.S.C. § 1344. The Corps engages in two permitting options, each different in scope. It issues either individual permits that allow an individual applicant's project to proceed or general permits that authorize a specific category of activities on a state, regional, or nationwide basis. For activities covered by a general permit, operators may forgo the more burdensome process for obtaining an individual permit and instead seek authorization under the general permit. See Ohio Valley Envtl. Coal. v. Bulen, 429 F.3d 493, 503 (4th Cir.2005) (“The process for obtaining authorization under a general permit ... is significantly more expeditious than the process for obtaining an individual permit under section 404(a).”). The Corps issues a general permit only if the regulated activities are similar in nature, will “cause only minimal adverse environmental effects when performed separately,” and will cause “only minimal cumulative adverse effect on the environment.” 33 U.S.C. § 1344(e)(1).

In 2007, the Corps issued two nationwide general permits (hereinafter the “nationwide permits”): permit 21 and permit 50. Permit 21 authorized surface coal-mining operations to discharge dredged and fill material into waters of the United States (i.e., streams); permit 50 allowed underground coal-mining operations to do the same. Before issuing each permit, the Corps conducted a public notice-and-comment period and completed required environmental analyses, including a cumulative-impacts analysis. Each cumulative-impacts analysis projected the permits' respective environmental impacts before determining that compensatory mitigation would reduce adverse impacts to a minimal level. The Corps disclosed its analyses and findings in each nationwide permit's Environmental Assessment (hereinafter “the Assessment(s)), prepared for NEPA purposes in lieu of an environmental impact statement. The nationwide permits became effective on March 19, 2007.

Projects seeking authorization under the nationwide permits faced two additional layers of Corps oversight. First, a proposal needed to pass muster under any regional “public interest” requirements imposed by the Corps' division engineers in their discretion. 33 C.F.R. § 330.5(c)(1). Second, the Corps' local district engineers had to approve a project's pre-construction notification. Id. § 330.5(c)(2). A district engineer could authorize or suspend projects, or impose project-specific special conditions to ensure that the project has only minimal cumulative net impacts. See id. § 330.5(d).

The nationwide permits expired on March 18, 2012, but the Corps extended the permits until March 18, 2013 for projects started before the 2012 expiration date. 77 Fed.Reg. 10,184, 10,184 (Feb. 21, 2012). Additionally, in order to “provide an equitable and less burdensome transition” and avoid a “significant hardship” for coal operators, id. at 10,209, the Corps granted a five-year accommodation (until 2017) to activities authorized under permit 21 “without applying the new limits imposed [by 2012 amendments to the permit],” id. at 10,184. The Corps estimates that approximately 70 surface coal-mining activities authorized under permit 21 qualify for this five-year reauthorization. Id. at 10,209.

B. District Court Proceedings

Riverkeeper sued the Corps, alleging that the cumulative-impacts analyses prepared for the Assessments authorizing the nationwide permits violated the CWA, NEPA, and the APA.1 Riverkeeper advancedtwo primary challenges to the permits' Assessments: (1) that the Corps bypassed a necessary NEPA consideration, the present effects of past permit authorizations, see40 C.F.R. §§ 1508.7– .9; and (2) that the Corps failed—in violation of the CWA, NEPA, and the APA—to properly explain how compensatory mitigation would ensure cumulatively minimal impacts. See Ky. Riverkeeper, Inc. v. Midkiff, 800 F.Supp.2d 846 (E.D.Ky.2011). In making these arguments, Riverkeeper relied on a district court decision from West Virginia, Ohio Valley Environmental Coalition v. Hurst, 604 F.Supp.2d 860 (S.D.W.Va.2009), that invalidated permit 21 “for the very same reasons.” Ky. Riverkeeper, 800 F.Supp.2d at 865.

The district court rejected Hurst's reasoning and granted summary judgment to the Corps, finding that the Corps adequately reviewed the present effects of past nationwide permit authorizations and properly relied on compensatory mitigation to ensure minimal cumulative impacts. Riverkeeper timely appeals, advancing the same arguments presented to the district court. We have jurisdiction under 28 U.S.C. § 1291.

II.

Before we consider the merits of Riverkeeper's claims, we address the Corps' argument that the nationwide permits' expiration renders Riverkeeper's claims moot.

“It is a basic principle of Article III that a justiciable case or controversy must remain extant at all stages of review, not merely at the time the complaint is filed.” Decker v. Nw. Envtl. Def. Ctr., ––– U.S. ––––, 133 S.Ct. 1326, 1335, 185 L.Ed.2d 447 (2013). A case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party,” id., and a change in circumstances that renders a court unable to grant petitioners meaningful relief may prudentially moot an action, see Greenbaum v. EPA, 370 F.3d 527, 534–35 (6th Cir.2004). The Corps argues that the March 18, 2012 expiration of the nationwide permits prudentially moots Riverkeeper's appeal. But when an expired permit's conditions remain in effect, so too does the case and controversy. In Kescoli v. Babbitt, the Ninth Circuit distinguished challenges to agency action that “had already begun and ended” from challenges where the issuance of a renewal permit sustains the controversy. 101 F.3d 1304, 1309 (9th Cir.1996). If “the same [challenged] condition [remains] in effect and continues to govern [defendant's] coal mining operations [,] ... [t]he same controversy exists after the issuance of the renewal permit.” Id.

Though the permits here expired, the Corps grandfathered mining activities authorized by permit 21 for five years, allowing project reauthorization “without applying the new limits imposed on [2012 permit 21].” 77 Fed.Reg. at 10,184 (titled “Grandfather Provision for Expiring NWPs”). These reauthorizations, effective until 2017, allow projects authorized in reliance on permit 21's challenged cumulative-impacts analysis to evade considerably tighter restrictions on surface coal mining. See id. It matters not that “the 2012 versions of [permits] 21 and 50 are significantlydifferent from the [permits] challenged here” (Appellee Br. at 29), because the Corps incorporated permit 21 into its 2012 amended form and therefore extended its reliance on the challenged cumulative-impacts analysis. See Kescoli, 101 F.3d at 1309.

We do not consider Riverkeeper's challenges to permit 50, however, because projects authorized under permit 50 were extended only for one year, until March 18, 2013. 77 Fed.Reg. at 10,184. Because the Corps no longer relies on that now-expired permit's challenged cumulative-impacts analysis, we analyze only the live controversy concerning projects reauthorized under permit 21.

III.
A. Standard of Review

We review the district court's summary judgment rulings de novo and the Corps' permitting decisions under the APA's arbitrary and capricious standard. Ky. Waterways Alliance v. Johnson, 540 F.3d 466, 473 (6th Cir.2008). Summary judgment is proper if the record shows that no genuine dispute exists as to any material fact, and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The APA directs courts to “hold unlawful and set aside agency action, findings, and conclusions found...

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