The Nickel Report

On November 4, 2019, the US Court of Appeals for the Eleventh Circuit upheld the Clean Water Act (CWA) section 404 permit issued by the US Army Corps of Engineers (Corps) for the extension of an existing phosphate mine in central Florida. Center for Biological Diversity v. U.S. Army Corps of Engineers, No. 18-10541 (11th Cir. Nov. 4, 2019). The Corps permit authorizes the discharge of dredged or fill material into waters of the United States that comprise a small portion of the mining extension. Opponents challenged the permit in the Middle District of Florida, claiming the issuance of the permit violated the CWA, the National Environmental Policy Act (NEPA) by not considering “downstream” effects, and the Endangered Species Act (ESA). The district court rejected all of the claims, and the Eleventh Circuit affirmed.

The Eleventh Circuit’s decision reinforces key NEPA principles the Supreme Court recognized in its 2004 decision in Department of Transportation v. Public Citizen and that other federal courts of appeals have since applied. Emphasizing that the proper scope of an agency’s NEPA analysis starts with an accurate description of the agency action, the court noted that the 404 permit only authorizes the discharge of dredged or fill material into waters of the United States. Citing Public Citizen, the court recognized that a NEPA review is limited in scope to those effects proximately caused by the agency action. Because the Corps has control and responsibility only over the discharge of dredged and fill material, not over fertilizer plants regulated by the State of Florida and EPA, the Corps properly concluded that the effects of separate fertilizer plants that process mined phosphate ore are not effects of the Corps permit. The plaintiffs argued that the Corps’ NEPA review should have extended to environmental effects related to waste from fertilizer plants using phosphate ore from the mine.

The decision confirms important principles governing NEPA reviews. The scope of a NEPA review must be tied to the specific agency action. And only those effects the agency action proximately causes need be considered as direct or indirect effects of the action. The decision thus provides important guidance regarding the proper scope of NEPA analysis for Corps permits and other federal agency actions. The Corps permit holder is represented by Hunton Andrews Kurth attorneys George P. Sibley III, Jonathan L. Caulder, Deidre G. Duncan, Andrew J. Turner, Kerry L. McGrath, Brian Levey and Jamie Zysk Isani.