Sierra Club v. U.S. Army Corps of Engineers

• Citation: 295 F.3d 1209
• Decision Date: 25 June 2002
• Docket Number: No. 01-11179.,01-11179.
• Parties: SIERRA CLUB, Judy Rosier, et al., Plaintiffs-Appellants, v. U.S. ARMY CORPS OF ENGINEERS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

295 F.3d 1209

SIERRA CLUB, Judy Rosier, et al., Plaintiffs-Appellants, v. U.S. ARMY CORPS OF ENGINEERS, Defendant-Appellee.

No. 01-11179.

United States Court of Appeals, Eleventh Circuit.

June 25, 2002.

COPYRIGHT MATERIAL OMITTED

Lesley Gay Blackner, Palm Beach, FL, for Plaintiffs-Appellants.

Tamara Rountree, U.S Dept. of Justice, Washington, DC, Wayne Edwin Flowers, Jacksonville, FL, Edwin A. Steinmeyer, Anne Longman, Lewis, Longman & Walker, Tallahassee, FL, for Defendant-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before ANDERSON and BLACK, Circuit Judges, and MORENO^*, District Judge.

ANDERSON, Circuit Judge:

The Sierra Club and several individually named plaintiffs ("Sierra Club") brought suit against the United States Army Corps of Engineers ("Corps") and the Florida Department of Transportation ("FDOT") seeking to halt construction of the Suncoast Parkway, a 41.6 mile, four-lane toll-road that runs north-south from Hillsborough County, Florida through Pasco and Hernando Counties. Sierra Club argues that the Corps failed to comply with the procedural requirements of Section 7 of the Endangered Species Act ("ESA"), 16 U.S.C. § 1536. Granting summary judgment in favor of the Corps and FDOT on the issues now before us, the district court entered final judgment. Sierra Club appeals. We affirm.

I. FACTS

A. Legal Background

1. The Endangered Species Act

The Endangered Species Act, 16 U.S.C. §§ 1531-1544, charges federal agencies to carry out the Congressional policy of conserving endangered or threatened plant and animal species. To that end, Section 7 of the ESA requires every federal agency to insure that its actions are not likely to jeopardize the continued existence of any species which has been listed as endangered or threatened. 16 U.S.C. § 1536(a)(2).¹ Every agency is required to verify that its actions will not jeopardize any land-based listed species by consulting with, and obtaining the assistance of, the Secretary of Interior, acting through the Fish and Wildlife Service ("FWS").² Id. Using "the best scientific and commercial data available," an agency must determine if any listed species may be present in the area affected by a proposed project, and must confer with the Secretary whenever an action is likely to affect such a species. 16 U.S.C. § 1536(a).

Implementing regulations establish that an agency "action" includes "all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States." 50 C.F.R. § 402.02. This definition specifically includes the granting of permits. Id. The ESA provides that consultation with the Secretary may occur in cooperation with a prospective permit applicant if it is believed that a listed species may be affected by the proposed project.³ 16 U.S.C. § 1536(a)(3). That consultation, and any opinions which are issued as a result, is treated as a consultation between the agency and FWS, as required by 16 U.S.C. § 1536(a)(2), provided that no significant changes to the action have been made between the time of the consultation and the actual permitting of the action. 16 U.S.C. § 1536(b)(3)(B).⁴

As part of the consultation requirement, the agency is required to ask FWS in writing, whether, in its opinion, a listed or proposed species may be present in the action area.⁵ 16 U.S.C. § 1536(c)(1).⁶ If FWS responds that no protected species are present, the consultation requirement ends. If, however, FWS responds that there may be an endangered or threatened species in the action area, the agency is required to prepare a biological assessment ("BA"), which identifies any listed species within the area and evaluates the potential effects of the action on those species. 16 U.S.C. § 1536(c)(1); 50 C.F.R. § 402.02. The BA requirement can be fulfilled as part of the agency's procedural requirements established by the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4332, which are described below. 16 U.S.C. § 1536(c)(1).

According to the implementing regulations, a BA is also required for all federal actions which constitute a "major construction activity," whether or not a listed species is suspected in the area. 50 C.F.R. § 402.12(b)(1). A "major construction activity" is defined as "a construction project (or other undertaking having similar physical impacts) which is a major Federal action significantly affecting the quality of the human environment as referred to in [NEPA, 42 U.S.C. § 4332(2)(C)]." 50 C.F.R. § 402.02. The term "major" reinforces the term "significantly," but has no meaning independent of it. Andrus v. Sierra Club, 442 U.S. 347, 364 n. 23, 99 S.Ct. 2335, 2344 n. 23, 60 L.Ed.2d 943 (1979); 40 C.F.R. § 1508.18. The regulations promulgated to institute NEPA also specifically provide that "major" actions include approving permits for construction. 40 C.F.R. § 1508.18(b)(4).

If the BA reveals no potential jeopardy to a listed species, and FWS either agrees or proposes alternatives which would eliminate any jeopardy it perceives, the project may proceed. 50 C.F.R. § 402.12(k)(1). As part of the "no jeopardy" finding, the FWS may issue an incidental take permit, which authorizes incidental taking of the species and specifies the taking's impact, any "reasonable and prudent" minimizing measures that must be implemented, and the terms and conditions imposed upon the agency or permit applicant. 16 U.S.C. § 1536(b)(4).⁷

If, on the other hand, the BA does reveal a potential impact on a listed species, the agency must initiate "formal consultation" with FWS. 50 C.F.R. § 402.14. Formal consultation requires FWS to review the available data and evidence, evaluate the status of the species and the potential effects of the agency action, and formulate a biological opinion, which states whether the action and its cumulative effects is likely to jeopardize the continued existence of the species. 16 U.S.C. § 1536(b)(3)(A);⁸ 50 C.F.R. § 402.14(g)-(h). If potential jeopardy to a species exists, the FWS may suggest "reasonable and prudent alternatives" which the agency might take to avoid harming the species. 16 U.S.C. § 1536(b)(3)(A). An incidental take permit may be issued if the alternatives offered will sufficiently minimize the impact to remove the potential jeopardy to the species. 16 U.S.C. § 1536(b)(4)(A); 50 C.F.R. § 402.14(i)(1).

2. The National Environmental Policy Act

Agencies are also required by statute to consider the environmental consequences of their actions more generally. The National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370d, is not a substantive environmental statute which dictates a particular outcome if certain consequences exist. Instead, NEPA creates "a particular bureaucratic decisionmaking process." Sierra Club v. Marsh, 872 F.2d 497, 497 (1st Cir.1989). Section 102(2), 42 U.S.C. § 4332(2)(C),⁹ contains a Congressional mandate that federal agencies consider the environmental impact, and potential alternatives, for every proposed "major Federal action significantly affecting the quality of the human environment." It is an "action-forcing" provision designed to prevent agencies from acting on incomplete information and to "ensure[] that important effects will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 1845, 104 L.Ed.2d 351 (1989).

The first requirement NEPA imposes on an agency is to determine whether an action is a "major" action with a "significant effect."¹⁰ This determination requires preparation of an environmental assessment ("EA"). Hill v. Boy, 144 F.3d 1446, 1450 (11th Cir.1998); 40 C.F.R. § 1501.3. The EA should provide enough evidence and analysis to guide the agency to one of two conclusions: (1) a finding that the project will have a significant effect, or (2) a finding of no significant impact ("FONSI"). If the latter conclusion is reached, the agency issues a FONSI, which incorporates the EA and explains why the action will not have a significant effect on the human environment. 40 C.F.R. § 1508.13.

If the conclusion in the EA is that the action will have a significant effect, then the project is "major," and the agency must prepare an environmental impact statement ("EIS"), as described in 42 U.S.C. § 4332(2)(C). The EIS must "provide full and fair discussion of significant environmental impacts." 40 C.F.R. § 1502.1. It is to "be used by Federal officials in conjunction with other relevant material to plan actions and make decisions." Id. The discussion should include any potential impact on endangered or threatened species.

Part of the EIS process is determining the appropriate scope of the analysis required. This is accomplished by considering exactly what type of action is involved, its direct and indirect impacts, and potential alternatives. The scope may also depend upon the relationship of the EIS to other environmental impact statements. If an action is a component of a larger project, an agency may "tier" its EIS's in order to "eliminate repetitive discussions of the same issues and to focus on the actual issues ripe for discussion." 40 C.F.R. § 1502.20. This is accomplished by incorporating earlier statements into the new analyses, and focusing only on what has not previously been considered. Tiering is also appropriate where a broad EIS has already been prepared and the agency is now considering specific aspects of a proposal.

Agencies are not required to duplicate the work done by another federal agency which also has jurisdiction over a project. NEPA regulations encourage agencies to coordinate on such efforts. As early as possible, a lead agency should be designated. Other involved agencies are designated "cooperating agencies." 40 C.F.R. § 1501.6. A lead agency, who ultimately signs the EIS, is responsible...