Center for Biological Diversity v. U.S. Army Corps of Engineers ( 2019 )

Case: 18-10541 Date Filed: 11/04/2019 Page: 1 of 58
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-10541
________________________
D.C. Docket No. 8:17-cv-00618-SDM-MAP
CENTER FOR BIOLOGICAL DIVERSITY,
MANASOTA-88, INC.,
PEOPLE FOR PROTECTING PEACE RIVER, INC.,
SUNCOAST WATERKEEPER,
Plaintiffs - Appellants,
versus
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,
Case: 18-10541 Date Filed: 11/04/2019 Page: 2 of 58
MOSAIC FERTILIZER, LLC,
Intervenor-Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(November 4, 2019)
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
∗ Honorable John M. Rogers, United States Circuit Judge for the Sixth Circuit, sitting by
designation.
2
Case: 18-10541 Date Filed: 11/04/2019 Page: 3 of 58
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 (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.
3
Case: 18-10541 Date Filed: 11/04/2019 Page: 4 of 58
§§ 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).
1
Mosaic’s predecessor, CF Industries, applied for the permit at issue. Mosaic and CF
later merged. We refer to the combined entity as Mosaic throughout for convenience.
4
Case: 18-10541 Date Filed: 11/04/2019 Page: 5 of 58
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 (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
5
Case: 18-10541 Date Filed: 11/04/2019 Page: 6 of 58
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
6
Case: 18-10541 Date Filed: 11/04/2019 Page: 7 of 58
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 Wildlife Service before finalizing the area-wide environmental-impact
statement. Bio Diversity appeals.
7
Case: 18-10541 Date Filed: 11/04/2019 Page: 8 of 58
II.
As the district court properly determined, it was reasonable for the Corps to
conclude that the environmental effects of phosphogypsum production and storage
fell outside the scope of its NEPA review. NEPA and its regulations require
agencies to consider only those effects caused by the agency’s action, but
phosphogypsum-related effects are caused by the Corps’ Section 404 permit in
only the most attenuated sense. In traditional legal terms, even if the Corps’ permit
is a but-for cause of those effects, it is not a proximate—or legally relevant—
cause. Moreover, because the Corps lacks the authority to regulate
phosphogypsum wholesale, the “rule of reason” instructs that the Corps need not
consider its effects. Finally, the Corps’ scoping decision is consistent with its own
regulations, the Corps’ interpretation of which is entitled to deference.
NEPA requires agencies to consider the “environmental impact of the
proposed action.” 42 U.S.C. § 4332(C)(i). Here, the Corps’ action is the issuance
of a Section 404 permit authorizing the discharge of dredged and fill material into
United States waters. The Corps did not issue a mining permit, nor a permit to
produce fertilizer or to store phosphogypsum—it has no jurisdiction to regulate or
authorize any of that. Having defined the federal action, “[t]o determine whether
[NEPA] requires consideration of a particular effect, [the court] must look at the
relationship between that effect and the change in the physical environment caused
8
Case: 18-10541 Date Filed: 11/04/2019 Page: 9 of 58
by the major federal action at issue.” Metro. Edison Co. v. People Against Nuclear
Energy, 460 U.S. 766, 773 (1983). Only the effects caused by that change in the
environment—here, the discharge into U.S. waters—is relevant under NEPA.
Phosphogypsum-related effects are, at most, tenuously caused by the
discharge of dredged and fill material allowed by the Corps’ permit.
Phosphogypsum is a byproduct not of dredging and filling—nor even of phosphate
mining or beneficiation—but of fertilizer production. Further, the fertilizer
production takes place far from and long after the Corps-permitted discharges.
Further still, the EPA and the FDEP—not the Corps—directly regulate fertilizer
plants and phosphogypsum, including the “design, construction, operation, and
maintenance of phosphogypsum stack systems.” See 42 U.S.C. § 6901 et seq.
Mosaic’s fertilizer production will add to existing gypstacks, as they are called, but
will not result in any new stacks. Even the nearest fertilizer plants and gypstacks
to the South Pasture Mine Extension receive phosphate rock from many different
sources outside of the Corps’ jurisdiction. That means that gypstacks and the
effects of phosphogypsum will continue to exist so long as, and to the extent that,
Florida and the EPA allow—regardless of the Corps’ permitting decision.
Bio Diversity focuses on what it deems a but-for causal relationship between
the Corps’ permit and the production of phosphogypsum. That relationship
focuses on the fact that Mosaic’s fertilizer plants, which produce phosphogypsum,
9
Case: 18-10541 Date Filed: 11/04/2019 Page: 10 of 58
receive phosphate ore from local mines the company also owns. Bio Diversity
therefore contends that “but for” the Corps’ Section 404 permit, phosphogypsum’s
environmental effects would be diminished because Mosaic would not be able to
obtain as much phosphate, thereby reducing its fertilizer (and phosphogypsum
byproduct) production, if it could not discharge dredged and fill material into U.S.
waters, which necessarily accompanies Mosaic’s phosphate mining here. But the
happenstance that Mosaic is the company mining the phosphate and discharging
dredged and fill material into U.S. waters, and also the company running the
fertilizer plant that produces phosphogypsum, does not change the fact that these
events are insufficiently related to one another. NEPA does not stretch this far.
NEPA does not cover all “effects that are ‘caused by’ a change in the
physical environment in the sense of ‘but for’ causation.” Metro. Edison Co., 460
U.S. at 774. Instead, NEPA requires a “reasonably close causal relationship
between a change in the physical environment and the effect at issue,” akin to the
“familiar doctrine of proximate cause.” See id. Agencies and courts must “look to
the underlying policies or legislative intent in order to draw a manageable line
between those causal changes that may make an actor responsible for an effect and
those that do not.” Id. at 774 n.7. The Corps reasonably determined that its
Section 404 permit is not a proximate cause of attenuated phosphogypsum-related
10
Case: 18-10541 Date Filed: 11/04/2019 Page: 11 of 58
effects, and the competing line suggested by Bio Diversity is anything but
manageable.
Whatever causal relationship exists between the Corps-approved discharges
and the effects of phosphogypsum, it is not a reasonably close one.
Phosphogypsum is created and stored miles from the authorized discharges. In
addition, phosphogypsum will only be created so long as Mosaic continues to
operate in the fertilizer industry, the market continues to demand fertilizer with
phosphoric acid, and phosphogypsum’s regulators continue to permit its creation
and storage throughout Florida. Intervening events such as these ordinarily break
the causal chain.
Given this tenuous causal chain, it was sensible for the Corps to draw the
line at the reaches of its own jurisdiction, leaving the effects of phosphogypsum to
phosphogypsum’s regulators. The Corps’ line respects the jurisdictional
boundaries set by Congress and inherent in state–federal cooperation. The Clean
Water Act empowers the Corps to grant Section 404 permits to “restore and
maintain the chemical, physical, and biological integrity of the Nation’s waters” by
regulating “the discharge of pollutants into the navigable waters.” 33 U.S.C.
§ 1251(a)(1). No federal law empowers the Corps to protect the environment writ
large or to regulate phosphate mining as such, much less fertilizer production or
phosphogypsum stacking. Whatever federal regulatory powers there are over
11
Case: 18-10541 Date Filed: 11/04/2019 Page: 12 of 58
phosphogypsum-related effects, Congress granted to the EPA, leaving the bulk of
control over phosphate mining and fertilizer production to the states. See 42
U.S.C. § 6901 et seq. Requiring the Corps to enter those regulatory spheres not
only offends congressional design but risks duplicative, incongruous, and unwise
regulation. Because the Corps does not generally regulate phosphogypsum, it has
no subject-matter expertise in that area.
“The scope of the agency’s inquiries must remain manageable if NEPA’s
goal of ‘ensur[ing] a fully informed and well considered decision’ is to be
accomplished.” Metro. Edison Co., 460 U.S. at 776 (quoting Vermont Yankee
Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558 (1978)). Far from manageable,
the new inquiries required of the Corps would bog down agency action in the name
of duplicative and potentially incoherent regulation.
The Corps’ decision not to consider phosphogypsum-related effects is fully
justified by the rule of reason announced in Public Citizen. 541 U.S. at 767. The
rule of reason “ensures that agencies determine whether and to what extent to
prepare an [environmental-impact statement] based on the usefulness of any new
potential information to the decisionmaking process.” Id. Thus, “where an agency
has no ability to prevent a certain effect due to its limited statutory authority over
the relevant actions, the agency cannot be considered a legally relevant ‘cause’ of
the effect.” Id. at 770.
12
Case: 18-10541 Date Filed: 11/04/2019 Page: 13 of 58
The Corps has no categorical statutory authority under the Clean Water Act
to prevent phosphogypsum-related effects apart from the possibility that they are
direct, indirect, or cumulative effects of the discharges into U.S. waters. This
supports the Corps’ decision not to consider those effects. Section 404 of that Act
authorizes the Corps to “issue permits . . . for the discharge of dredged or fill
material into the navigable waters at specified disposal sites.” 33 U.S.C.
§ 1344(a). That section further authorizes the Corps to reject such a permit
“whenever [it] determines . . . that the discharge of such materials into such area
will have an unacceptable adverse effect on municipal water supplies, shellfish
beds and fishery areas (including spawning and breeding areas), wildlife, or
recreational areas.” Id. § 1344(c). The Corps has no categorical power to refuse a
permit for any other reason, such as its dislike of the applicant’s business or
downstream effects not sufficiently caused by “the discharge of such materials.”
The Corps accordingly properly relied upon the fact that phosphogypsum-related
effects are primarily regulated by other agencies in its determination not to
consider those effects, and did so without violating NEPA.
This makes good sense in light of the existing regulatory landscape over
phosphogypsum. Mosaic and others already produce fertilizer in Florida, and
gypstacks will exist in Florida regardless of the Corps’ actions. Thus, current and
future phosphogypsum will cause environmental effects with or without the Corps’
13
Case: 18-10541 Date Filed: 11/04/2019 Page: 14 of 58
permit—subject only to regulation by Florida and the EPA. On the flip side,
Florida or the EPA could regulate those gypstacks out of existence even if the
Corps were to grant Mosaic its Section 404 permit. Requiring the Corps to
consider the effects of phosphogypsum is not reasonable when it is independent of
the regulators more directly responsible for evaluating those effects.
Further, that the Corps could indirectly mitigate future phosphogypsum-
related effects by conditioning the supply of phosphate ore does not mean the
Corps must consider wielding its regulatory powers with that ulterior motive in
mind. The rule of reason turns, at least in part, on the agency’s statutory authority,
not on what outcomes an agency might achieve through indirect coercion. If the
Corps were required to consider all effects that it might indirectly police—even
those far from its proper sphere of regulatory authority—its NEPA review would
have to account for every conceivable environmental effect of fertilizer’s use. It is
foreseeable, for instance, that farmers will use Mosaic’s fertilizer to treat their
crops and that some fertilizer will be carried by stormwater runoff into sewers and
streams. Extending Bio Diversity’s logic, because the Corps could indirectly
mitigate those effects by denying Mosaic its Section 404 permit and thereby
choking its fertilizer plants of phosphate, the Corps must consider the
environmental effects of crop fertilization. That cannot be right.
14
Case: 18-10541 Date Filed: 11/04/2019 Page: 15 of 58
Public Citizen flatly held that “where an agency has no ability to prevent a
certain effect due to its limited statutory authority over the relevant actions, the
agency cannot be considered a legally relevant ‘cause’ of the effect.” 541 U.S. at
770. There, an agency within the Department of Transportation was tasked with
setting federal safety standards and registration requirements for Mexican-
domiciled commercial vehicles operating in the United States. See id. at 758–59.
In earlier years, Congress had enacted a moratorium on the agency’s registration of
Mexican-domiciled motor carriers. Eventually, Congress and the President agreed
to lift the moratorium—but only after the agency promulgated new safety and
registration rules. See id. at 760. In the course of that rulemaking, the agency
conducted a NEPA analysis of the environmental effects of its proposed rules, such
as the effects on air quality caused by the increased number of roadside inspections
its new rules would bring about. See id. at 761. An environmental group sued,
contending that the agency was required to consider the environmental effects of
the increased number of Mexican-domiciled motor carriers operating within the
U.S. because of the lifting of the moratorium. That was necessary, according to
the environmental group, because the agency’s rulemaking was a but-for cause of
the lifting of the moratorium. See id. at 765–66.
Despite this “but for” relationship between the agency’s rulemaking and the
lifting of the moratorium, the Supreme Court held that NEPA did not require the
15
Case: 18-10541 Date Filed: 11/04/2019 Page: 16 of 58
agency to consider effects that it “ha[d] no ability categorically to prevent.” See id.
at 768. That followed because the rule of reason recognizes that it is pointless to
require agencies to consider information they have no power to act on, or effects
they have no power to prevent. In Public Citizen, the agency had the statutory
authority only to promulgate safety and regulation standards—not to keep the
moratorium in place or modify its lifting, which only Congress and the President
could do.
That rule applies in much the same way here. The Corps has no ability
categorically to prevent fertilizer production or the creation and storage of
phosphogypsum. As in Public Citizen, it is irrelevant that the Corps’ action is, in
an attenuated way, a but-for cause of phosphogypsum production, because Florida
and the EPA have primary authority to regulate or prevent phosphogypsum’s
creation and storage. Thus, here too it would be pointless to require the Corps to
gather and examine information regarding effects that it has no authority to
prevent.
It is true that the agency in Public Citizen had no discretion to refuse
registration (absent the moratorium) to a motor carrier that complied with its
regulations. But that is beside the point. Individual registration was not at issue;
rulemaking was, and the agency did have discretion to set safety and registration
standards. The Supreme Court rejected the idea that the agency could indirectly
16
Case: 18-10541 Date Filed: 11/04/2019 Page: 17 of 58
mitigate the environmental effects of lifting the moratorium by (i) not
promulgating any new rules or (ii) setting burdensome standards so that fewer
motor carriers could meet them and operate in the U.S. See id. at 765–68. The
Court held that it was not enough that the agency could, in fact, mitigate those
effects, when the agency was not statutorily authorized to base its decision on
those ancillary effects. See id. The same is true here: The Corps could, in fact,
mitigate the effects of phosphogypsum by rejecting the Section 404 permit and
choking off Mosaic’s supply of phosphate ore. But the Corps is not statutorily
authorized to base its permitting decision on environmental effects that are so
indirectly caused by its action.
The Corps could conceivably hinge its permitting decision on the effects of
phosphogypsum, but only by ignoring the Clean Water Act’s text and misapplying
its implementing regulations. The Clean Water Act does not give the Corps the
discretion to deny a Section 404 permit for any reason of its choosing. Although
the first subsection of § 1344 says the Corps “may issue permits . . . for the
discharge of dredged or fill material into the navigable waters at specified disposal
sites,” 33 U.S.C. § 1344(a), the Act also provides that the Corps
is authorized to deny or restrict the use of any defined area for
specification . . . as a disposal site [i.e., deny a permit], whenever [it]
determines . . . that the discharge of such materials into such area will
have an unacceptable adverse effect on municipal water supplies,
shellfish beds and fishery areas (including spawning and breeding
areas), wildlife, or recreational areas.
17
Case: 18-10541 Date Filed: 11/04/2019 Page: 18 of 58
Id. § 1344(c). Read together, those provisions limit the Corps’ discretion to grant
or issue permits. The Corps may not deny a permit for any reason under the sun—
including its distaste for later conduct the applicant will engage in—but only if the
allowed discharge will directly, indirectly, or cumulatively have an unacceptable
environmental effect. And the scope of that analysis is bounded by proximate
cause and the rule of reason. Because the Corps cannot deny a permit because of
phosphogypsum effects, which are beyond the scope of § 1344(c), the Corps was
not required to consider those effects. See Pub. Citizen, 541 U.S. at 767–68. Thus,
as in Public Citizen, the Corps’ Section 404 permit for the discharge of dredged
material is not a proximate cause of the effects of Mosaic’s fertilizer production,
and such effects need not be considered under NEPA.
The same is true under the Clean Water Act’s implementing regulations.
Those regulations require the Corps to conduct a public-interest review before
granting a permit, but that obligation is not an authorization to deny a permit based
on the environmental impacts of non-agency action. In the first place, regulations
cannot contradict their animating statutes or manufacture additional agency power.
See, e.g., FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 125–26
(2000); Manhattan Gen. Equip. Co. v. Comm’r of Internal Revenue, 297 U.S. 129,
134–35 (1936). Because the statute authorizes the Corps to deny a permit only if
the discharge itself will have an unacceptable environmental impact, the
18
Case: 18-10541 Date Filed: 11/04/2019 Page: 19 of 58
regulations cannot empower the Corps to deny permits for any other reason—
including downstream phosphogypsum-related effects of fertilizer production.
The regulations also focus the Corps’ review on the effects of its action. The
regulations provide that “[t]he decision whether to issue a permit will be based on
an evaluation of the probable impacts, including cumulative impacts, of the
proposed activity and its intended use on the public interest.” 33 C.F.R.
§ 320.4(a)(1) (emphasis added). Again, the “proposed activity” is the proposed
federal action that triggers NEPA—here, the issuance of the discharge permit.
Obligating the Corps to consider whether the discharge of dredged and fill material
is in the public interest, is not the same as authorizing the Corps to consider
whether fertilizer production and its consequences are in the public interest.
To take an alternative, unbounded view of the public-interest review would
be to appoint the Corps de facto environmental-policy czar. Rather than consider
whether the Corps’ own action is in the public interest, that broader view would
have the Corps consider whether fertilizer production and use is really worth the
cost. And that could be just the beginning. The next time the Corps is asked to
approve a section of a gas pipeline running through a wetland, would the Corps be
required to consider whether the country’s reliance on fossil fuels is really in the
public interest?
19
Case: 18-10541 Date Filed: 11/04/2019 Page: 20 of 58
The D.C. Circuit’s outlier opinion in Sabal Trail provides little support for
Bio Diversity’s argument. See Sierra Club v. FERC (Sabal Trail), 867 F.3d 1357(D.C. Cir. 2017). There, FERC authorized the construction and operation of a
pipeline network that would feed gas directly to power plants that would burn the
gas. See id. at 1363. The Sierra Club sued and argued that FERC failed to
consider the greenhouse-gas effects of burning that gas at the power plants. The
D.C. Circuit, over a powerful dissent, held that FERC was required to consider
those downstream environmental effects.
Sabal Trail is both questionable and distinguishable. First, the causal
relationship between the agency action and the putative downstream effect was
much closer there than it is here. FERC authorized a pipeline that would pump gas
directly into a power plant to be burned, causing greenhouse-gas emissions. The
Corps, on the other hand, approved only the discharge of dredged and fill
material—one small piece of Mosaic’s mining operations, which extracts a sand,
clay, and phosphate ore mixture, which is supplied to beneficiation plants where
the phosphate ore is separated out, which is then transported to fertilizer plants to
make phosphoric acid, which results in phosphogypsyum byproduct, and the
phosphoric acid is used to produce fertilizer. The phosphogypsum produced as a
byproduct when phosphate ore is processed into phosphoric acid is only then
stored around the state of Florida and liable to produce environmental effects.
20
Case: 18-10541 Date Filed: 11/04/2019 Page: 21 of 58
That articulated causal chain bears little resemblance to the two-link version in
Sabal Trail.
Second, the scope of the agency’s statutory authority in Sabal Trail was
much broader than the Corps’ here, and the rule of reason hinges, in any given
case, on the scope of the agency’s statutory authority because an agency need not
consider an effect it has no statutory authority to prevent. See Pub. Citizen, 541
U.S. at 770. In Sabal Trail, FERC was statutorily empowered to deny a pipeline
certificate on the ground that its construction and operation “is [not] required by
the present or future public convenience and necessity.” See 15 U.S.C. § 717f(e).
The Sabal Trail court understood that to mean “FERC could deny a pipeline
certificate on the ground that the pipeline would be too harmful to the
environment.” See Sabal Trail, 867 F.3d at 1373. But here, as discussed, the
Corps has no broad statutory authority to deny a discharge permit based on the
public convenience and necessity of the operation of Mosaic’s fertilizer plants. See
33 U.S.C. § 1344(c).
Third, Sabal Trail is at odds with earlier D.C. Circuit cases correctly holding
that “the occurrence of a downstream environmental effect, contingent upon the
issuance of a license from another agency with the sole authority to authorize the
source of those downstream effects, cannot be attributed to the [agency]; its actions
‘cannot be considered a legally relevant cause of the effect for NEPA purposes.’”
21
Case: 18-10541 Date Filed: 11/04/2019 Page: 22 of 58
Sabal Trail, 867 F.3d at 1381 (Brown, J., concurring in part and dissenting in part)
(quoting Sierra Club v. FERC (Freeport), 827 F.3d 36, 47 (D.C. Cir. 2016) and
citing Sierra Club v. FERC (Sabine Pass), 827 F.3d 59, 68 (D.C. Cir. 2016) and
EarthReports, Inc. v. FERC, 828 F.3d 949, 952 (D.C. Cir. 2016)).
Fourth, the legal analysis in Sabal Trail is questionable at best. It fails to
take seriously the rule of reason announced in Public Citizen or to account for the
untenable consequences of its decision. The Sabal Trail court narrowly focused on
the reasonable foreseeability of the downstream effects, as understood colloquially,
while breezing past other statutory limits and precedents—such as Metropolitan
and Public Citizen—clarifying what effects are cognizable under NEPA. See id. at
1380–81.
Under the rule of reason, agencies are not required to consider effects that
they lack the statutory authority categorically to prevent. Here, the Corps lacks the
authority categorically to prevent the effects of downstream fertilizer production,
including those from phosphogypsum’s creation and storage. Thus, the Corps
acted reasonably in deciding not to consider those effects.
Finally, the Corps’ decision is consistent also with the Corps’ own
regulations. At the very least, the regulations are ambiguous as to their exact
application in this case. That means we are in the heartland of Auer deference:
where “the law runs out, and policy-laden choice is what is left over.” See Kisor v.
22
Case: 18-10541 Date Filed: 11/04/2019 Page: 23 of 58
Wilkie, 139 S. Ct. 2400, 2415 (2019). Because the Corps tailored its analysis
according to a reasonable interpretation of its own regulations and its own
substantive expertise, the Corps’ interpretation should be deferred to. See id. at
2414–18; Auer v. Robbins, 519 U.S. 452, 461 (1997); see also Aracoma, 556 F.3d
at 177.
The Corps’ regulations anticipate that a permit applicant “may propose to
conduct a specific activity requiring a [Corps permit] (e.g., construction of a pier in
a navigable water of the United States) which is merely one component of a larger
project (e.g., construction of an oil refinery on an upland area).” 33 C.F.R. pt. 325,
app. B § 7(b)(1). That is what happened here: Mosaic proposed to discharge
dredged and fill material into U.S. waters as merely one component of its larger
mining operation. In those circumstances, the regulations provide that the Corps
“should establish the scope of the NEPA document (e.g., the [Environmental
Assessment] or [Environmental Impact Statement]) to address the impacts of the
specific activity requiring a [Corps] permit and those portions of the entire project
over which the [Corps] has sufficient control and responsibility to warrant Federal
review.” See id. (emphasis added). If that guidance were not clear enough, the
statement accompanying the regulation is: “The Corps authorizes the discharge of
dredged or fill material in 404 permits. Therefore, the activity the Corps studies in
its NEPA document is the discharge of dredged or fill material.” Environmental
23
Case: 18-10541 Date Filed: 11/04/2019 Page: 24 of 58
Quality Procedures for Implementing the National Environmental Policy Act
(NEPA), 53 Fed. Reg. 3120, 3121 (Feb. 3, 1988). The Corps was required to study
more only if it had “sufficient control and responsibility” over those other effects.
It was not arbitrary and capricious for the Corps to conclude that it did not
have “sufficient control and responsibility” over Mosaic’s downstream fertilizer
production. Those plants already exist; they are not a part of Mosaic’s proposed
mining expansion. The plants and gypstacks are many miles away from where
Mosaic would discharge into U.S. waters. Moreover, two other regulators—one
state, one federal—have express control and responsibility over fertilizer
production and phosphogypsum.
The hypotheticals included in the regulations squarely support the Corps’
determination. For example, when a power plant is proposed to be built and the
Corps’ only involvement is to approve a connecting pipeline or road through U.S.
waters, that permit “normally would not constitute sufficient” control and
responsibility to expand the Corps’ NEPA analysis to cover the portions of the
facility outside its jurisdictional waters. See 33 C.F.R. pt. 325, app. B § 7(b)(3).
The reasonableness of the Corps’ decision here follows a fortiori from there. In
that hypothetical, the Corps approved a pipeline or road that ran directly to the
proposed power plant. Despite that close connection, the regulations did not
extend control over the facility. Here, the relationship is nowhere near that close.
24
Case: 18-10541 Date Filed: 11/04/2019 Page: 25 of 58
The scope of the benefit of a project cannot, moreover, always define the
scope of the agency’s consideration. It is true that, under the regulations, “the
scope of analysis used for analyzing both impacts and alternatives should be the
same scope of analysis used for analyzing the benefits of a proposal.” See id.
§ 7(b)(3). But this cannot mean that whenever an agency determination will help
the local economy, for instance, it is required to consider whether the proposed
activity may put some other employers out of business. Here, the argument is that
the Corps violated § 7(b)(3) by including in its report that one “substantial indirect
effect of the mining” is the “export of finished phosphate products and fertilizer
through the Port of Tampa each year.” The Corps was not, however, trying to have
its cake and eat it too—it properly balanced the benefits of the project against its
detriments. In doing so, it recognized that the overall project purpose was the
extraction of phosphate ore within a practicable distance of Mosaic’s beneficiation
plants. It makes no sense to expand the required scope of the Corps’
environmental consideration merely because the Corps explained why phosphate
ore is mined in the first place—largely to be converted into phosphoric acid and
used in fertilizer.
The obvious purpose of § 7(b)(3) is to prevent the Corps from unfairly
carving a project (over which it has control) into thin slices and then balancing the
benefits of the overall project against the watered-down environmental impacts of
25
Case: 18-10541 Date Filed: 11/04/2019 Page: 26 of 58
each individual slice—in order to avoid a true study of the overall impacts.
Florida Wildlife Federation v. U.S. Army Corps of Engineers shows how this
works in action. 401 F. Supp. 2d 1298 (S.D. Fla. 2005). There, Palm Beach
County made plans to build a research park, the development of which would
require discharges into U.S. waters. The County applied for a Section 404 permit,
but only in relation to one subdivision of the research park; it asked the Corps to
evaluate that one subdivision independently from the much larger planned
development, which would also require Section 404 permits. See id. at 1305. The
Corps acquiesced and considered the environmental impacts of the subdivision
alone. Yet, it balanced those minor negative impacts against the great benefits of
the entire planned research park. See id. at 1332–33. By stacking the deck in that
way, the Corps was able to justify, on paper, its conclusion that the permit would
have no significant impact and thus avoid having to prepare an environmental-
impact statement at all. Following the admonition in the regulations, the court held
that it was not proper to use a narrower scope for the effects analysis than for the
benefits analysis. That case illustrates the import of § 7(b)(3), but this case is
nothing like that one. Eschewing an evaluation of the effects of building a house
by evaluating each piece of lumber one at a time is obviously different from
evaluating the effects proximately caused by that construction without following
the chain of causation to the ends of the earth.
26
Case: 18-10541 Date Filed: 11/04/2019 Page: 27 of 58
In contrast, the regulations provide, by way of an example, that when the
Corps approves only a portion of a pipeline feeding gas to a power plant, the Corps
is generally not required to consider the impacts of the power plant’s operation.
See 33 C.F.R. pt. 325, app. B § 7(b)(3). But that conclusion cannot logically
depend on the Corps’ never mentioning in its impact statement that the pipeline’s
purpose is to feed gas to the power plant. If that were correct, how would the
Corps explain the project or consider its public benefit without having to consider
all manner of downstream effects way beyond the reasonable scope of required
consideration?
At bottom, the Corps followed its own regulations in determining the scope
of the NEPA analysis as it did. The Corps’ reasonable interpretation should be
deferred to. See Kisor, 139 S. Ct. at 2414–18.
Our sister circuits have ruled similarly. See Aracoma, 556 F.3d at 177;
Kentuckians for the Commonwealth v. U.S. Army Corps of Eng’rs, 746 F.3d 698(6th Cir. 2014). In these cases, the Corps approved Section 404 permits in
connection with mining operations. In each, an environmental group argued that
the Corps failed to take account of the downstream environmental effects of
mining. In each, the court held that NEPA did not require consideration of those
effects.
27
Case: 18-10541 Date Filed: 11/04/2019 Page: 28 of 58
In Aracoma, the Fourth Circuit appreciated both that “obtaining a § 404
permit is a ‘small but necessary’ component of the overall upland [mining]
project,” and that this fact alone did not give the Corps control and responsibility
over the entire mining project. See Aracoma, 556 F.3d at 195. Looking to Public
Citizen, and the state’s regulation of coal mining, the court held that “under the
plain language of the [Corps’] regulation, activity beyond the filling of
jurisdictional waters is not within the Corps’ ‘control and responsibility’ because
upland environmental effects are ‘not essentially a product of Corps action.’” Id.at 196–97 (citing 33 C.F.R. pt. 325, app. B § 7(b)(2) (2008)). The court added
that, even were it to credit the environmental group’s arguments, it “must still
deem the regulation ‘ambiguous,’ and the Corps’ interpretation would be entitled
to deference.” See id. at 197.
In Kentuckians, the Sixth Circuit applied more or less the same analysis in
holding that the Corps was not required “to expand the scope of its review beyond
the effects of the filling and dredging activity to the effects of the entire surface
mining operation as a whole.” See 746 F.3d at 707. Again, the court held that the
Corps’ determination was a reasonable interpretation of those regulations and
entitled to deference. See id. at 707–08, 714. It added that the Corps’
interpretation and determination “effectuated in practice” the principles underlying
28
Case: 18-10541 Date Filed: 11/04/2019 Page: 29 of 58
the proximate-cause doctrine and rule of reason announced in Metropolitan and
Public Citizen. See id. at 710.
These cases are not different merely because they dealt with coal mining
rather than phosphate mining. Although it is true that Congress fleshed out in
more detail the balance between federal and state regulatory control over coal
mining, that same balance functionally exists in the context of phosphate mining.
Florida has authority over phosphate mining, and the Corps has authority only over
U.S. waters. Public Citizen and the Corps’ regulations focus on the Corps’
authority; that authority is the same here as it was in Aracoma and Kentuckians.
In short, requiring an analysis of the environmental effects of gypstacks in
the context of this case expands NEPA’s environmental consideration in an
unwieldy and indefensible way. Taken to its logical conclusion, that view would
expand consideration of the effects of dredging certain wetlands to require study of
the environmental effects of far-flung activity like the use of fertilization in
commercial farming.
III.
The Corps otherwise complied with NEPA by issuing an area-wide
environmental-impact statement, which served as the mine-specific impact
statement for each of the four proposed mine sites, and following that up with a
supplemental environmental assessment of the South Pasture Mine Extension,
29
Case: 18-10541 Date Filed: 11/04/2019 Page: 30 of 58
before issuing the Section 404 permit related to that mine in a record of decision.
Bio Diversity claims that this process skirted NEPA’s implementing regulations
and that the Corps was required to publish an additional impact statement for the
South Pasture Mine Extension because of alleged new circumstances. Those
claims are without merit.
Agencies have broad discretion to determine “how best to handle related, yet
discrete, issues in terms of procedures and priorities.” Grunewald v. Jarvis, 776
F.3d 893, 905 (D.C. Cir. 2015). The NEPA regulations specifically allow—
indeed, encourage—agencies to consider “[s]imilar actions” together in one
environmental-impact statement where the actions “have similarities that provide a
basis for evaluating their environmental consequences together, such as common
timing or geography.” 40 C.F.R § 1508.25(a)(3). The Corps here determined that
the four proposed mining-related projects were “similar in geographic coverage,
the periods of proposed activity, alternatives, and impacts.” Thus, it was
reasonable for the Corps to conclude that “[t]hese shared characteristics provide an
additional basis for evaluating their environmental consequences in a single
comprehensive [area-wide] EIS [environmental-impact statement].”
As Bio Diversity agrees, after the Corps prepared an impact statement to
evaluate the environmental impacts of issuing the permit, it was required to publish
a record of its decision, at the time of its decision. 33 C.F.R. § 230.14; 40 C.F.R.
30
Case: 18-10541 Date Filed: 11/04/2019 Page: 31 of 58
§ 1505.2. The Corps did not err by preparing in the interim a supplemental
environmental assessment specific to the South Pasture Mine Extension to assist
with its permit decision and confirm that its area-wide impact statement was not
outdated. The NEPA regulations expressly allow for a “broad environmental
impact statement” followed by a “subsequent statement or environmental
assessment,” which need only summarize and incorporate those earlier discussions
by reference. See 40 C.F.R. § 1502.20. Indeed, Bio Diversity concedes that the
Corps may undertake a “tiered” process, in which case “it must follow the
broader—here ‘area wide’—EIS [environmental-impact statement] with a
subsequent site-specific review that at a minimum ensures the agency address all
relevant matters not considered in a previous EIS, and analyzes and substantively
considers new or changed circumstances that bear on the proposed action or its
impacts.” That is precisely what the Corps did here.
Bio Diversity argues also that—even if procedurally proper—the
supplemental environmental assessment was substantively insufficient because it
(1) did not analyze substantial changes or significant new circumstances that arose
after the Corps finalized the area-wide impact statement, (2) identified impacts in
the area-wide impact statement which were left for but never analyzed in the
supplemental assessment, and (3) never analyzed the impacts of digging out 409
acres of the Payne Creek watershed.
31
Case: 18-10541 Date Filed: 11/04/2019 Page: 32 of 58
As to the purported new circumstances that went unanalyzed between the
area-wide impact statement and the supplemental assessment, Bio Diversity points
to: (i) changes in ownership of the mine, (ii) revisions to the project design and
permit application, (iii) changes to the timing and duration of the mining plan, and
(iv) changes to the compensatory mitigation plan. NEPA requires that an impact
statement be supplemented if “(i) [t]he agency makes substantial changes in the
proposed action that are relevant to environmental concerns; or (ii) [t]here are
significant new circumstances or information relevant to environmental concerns
and bearing on the proposed action or its impacts.” 40 C.F.R § 1502.9. Read in
light of the “rule of reason,” additional information need only be accounted for if
the information would have been useful to the agency’s decisionmaking process.
See Pub. Citizen, 541 U.S. at 767. That is to say, the Corps “need not supplement
an EIS [environmental-impact statement] every time new information comes to
light after the EIS is finalized,” as doing so “would render agency decisionmaking
intractable, always awaiting updated information only to find the new information
outdated by the time a decision is made.” See Marsh v. Or. Nat’l. Res. Council,
490 U.S. 360, 373 (1989).
None of the purportedly changed circumstances is significant or would
otherwise affect the Corps’ decisionmaking process.
32
Case: 18-10541 Date Filed: 11/04/2019 Page: 33 of 58
Ownership. The Corps persuasively argues that Mosaic’s acquisition of CF
Industries’ Florida phosphate operations is of no significance to the environmental
impacts of the project, because any owner must comply with the same terms of the
permit. The Corps directly acknowledged the change of ownership in the
supplemental assessment and explained that it “did not change the basic or overall
purposes for [the] project.”
Timing. Bio Diversity claims that inconsistencies in the stated timing of the
project between the area-wide statement and supplemental assessment require
additional analysis. But, as the Corps explains, there is no material inconsistency.
In the area-wide statement, the Corps estimated that mining would take place over
thirteen years; whereas, in the supplemental assessment it approximated fourteen
years. Bio Diversity has not explained how these slightly different estimates have
any bearing on the Corps’ NEPA analysis.
Revisions to Application. The only significant revisions to the permit
applications that Bio Diversity identifies support, rather than undermine, the
Corps’ decision to prepare a supplemental assessment rather than an entirely new
impact statement. The changes resulted in less extensive environmental impacts
than originally envisioned. An agency is generally not required to conduct a new
environmental analysis when changes result in less harmful environmental effects
than originally anticipated. See Sierra Club v. Van Antwerp, 526 F.3d 1353, 1360
33
Case: 18-10541 Date Filed: 11/04/2019 Page: 34 of 58
(11th Cir. 2008). In any event, the Corps considered the changes and invited
public comment before issuing its supplemental assessment.
Mitigation Plan. Without offering any specific criticism, Bio Diversity
claims that a supplemental statement was required because of significant changes
to the compensatory mitigation plan. But, as the Corps explains, the area-wide
statement contemplated changes to the mitigation plan for each specific mine,
based on review and modification of the applicants’ suggested plans in
coordination with the EPA. Because these plans are necessarily site-specific, it
was reasonable for the Corps to verify and set out the final mitigation plan in the
record of decision specific to the South Pasture Mine Extension.
Second, Bio Diversity argues that the Corps failed to meaningfully discuss
its mitigation analysis, but Bio Diversity fails to provide support for that assertion.
The area-wide statement includes an entire chapter on mitigation, and the Corps is
entitled to rely on its own expertise in drawing conclusions within its wheelhouse.
Bio Diversity cannot prove an actionable claim under NEPA and the APA by
asserting baldly that the Corps’ analysis was not meaningful.
Third, Bio Diversity argues that the Corps failed to analyze the effects of
mining 409 acres within the Payne Creek watershed. But the Corps expressly
relied on its expertise in determining that, given Payne Creek’s size and history,
“mining this relatively small percentage of the overall subwatershed would [not]
34
Case: 18-10541 Date Filed: 11/04/2019 Page: 35 of 58
have a measurable additional effect on flows within the subwatershed.” As Bio
Diversity concedes, only significant effects of a proposed action need be analyzed.
Thus, Bio Diversity fails to show that the Corps acted arbitrarily and capriciously
in determining that mining within the Payne Creek would have little if any
measurable effect and need not be analyzed further.
IV.
Finally, the Corps did not violate § 7(a)(2) of the Endangered Species Act,
which requires each agency to consult with the Fish and Wildlife Service before
taking an “action” to ensure that such action is not likely to jeopardize the
continued existence of any endangered species or its habitat. See 16 U.S.C.
§ 1536(a)(2). The term “action” means “all activities or programs of any kind
authorized, funded, or carried out, in whole or in part, by Federal agencies,”
including the granting of permits or causing indirect modifications to land. See 50
C.F.R. § 402.02. Bio Diversity does not dispute that the Corps consulted with the
Service and obtained a biological opinion concerning its decision to issue a Section
404 permit for the South Pasture Mine Extension. Rather, Bio Diversity argues
that completing the area-wide environmental-impact statement constituted an
“agency action”—separate from the permitting decision—that required its own
formal consultation under the Act.
35
Case: 18-10541 Date Filed: 11/04/2019 Page: 36 of 58
The Corps’ area-wide statement did not, however, constitute an “agency
action” that required consultation with the Service independent of the Corps’ later
issuance of the Section 404 permit. An impact statement is the culmination of an
agency’s NEPA analysis, which is performed in furtherance of some other agency
action, here the issuance of a permit. It makes no sense to say the NEPA analysis
constitutes an agency action separate and apart from the action that triggers that
review in the first place.
Bio Diversity’s attempts to characterize the area-wide impact statement as a
programmatic agency action are not persuasive. To be sure, an agency’s
establishment of a program, which binds, funds, or directs subsequent action may
constitute an “agency action.” For instance, in Florida Key Deer v. Paulison, this
court held that the Federal Emergency Management Agency’s administration of
the National Flood Insurance Program was an agency action that triggered
§ 7(a)(2) review because it set a framework that would direct future land
management decisions and thus “effectively authoriz[ed] . . . development that
pushed the Key deer to the brink of extinction.” 522 F.3d 1133, 1139 (11th Cir.
2008). Similarly, in Cottonwood the Ninth Circuit held that the Forest Service’s
promulgation of standards for permitting activities that could adversely affect
Canada lynx qualified as an agency action under the Endangered Species Act. See
Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075, 1085 (9th Cir.
36
Case: 18-10541 Date Filed: 11/04/2019 Page: 37 of 58
2015). These cases, and the others cited by Bio Diversity, hold that setting
guidelines to direct or cabin future agency action may constitute a programmatic
action that triggers consultation under § 7(a)(2).
But the area-wide impact here did nothing of the sort—it did not direct or
authorize the Corps’ substantive decision to issue the Section 404 permit under the
Clean Water Act or otherwise bind the agency to take any future action. It merely
disclosed the Corps’ environmental analysis of four proposed permitting actions
(each one of which would require its own § 7(a)(2) consultation). Thus, the Corps’
area-wide environmental-impact statement did not constitute an “agency action”
that required consultation under § 7(a)(2) of the Endangered Species Act.
V.
For these reasons, the judgment of the district court is affirmed.
37
Case: 18-10541 Date Filed: 11/04/2019 Page: 38 of 58
MARTIN, Circuit Judge, concurring in part and dissenting in part:
Piles of a radioactive waste product called phosphogypsum lie across 3,200
acres in Bone Valley, Florida. To date, over 1 billion tons of phosphogypsum
loom over the flat Floridian landscape. These mountains of waste are a monument
to the lasting environmental impact of Florida’s phosphate fertilizer industry.
The land in Bone Valley is rich in phosphate. Mosaic, a fertilizer
manufacturer, mines 17.1 million tons of phosphate there each year. Mosaic turns
this phosphate into fertilizer at four Mosaic fertilizer plants, also located in Bone
Valley.
This process generates more hazardous waste than it does fertilizer. The
making of one ton of fertilizer-ready phosphate leaves five tons of phosphogypsum
byproduct behind. Phosphogypsum has no beneficial use, so Mosaic heaps it in
massive outdoor “stacks.” These stacks are often built on top of old phosphate
mines and wherever else Mosaic owns “unused” land in Bone Valley. To dispose
of phosphogypsum, Mosaic pumps gallons of phosphogypsum-water “slurry” into
huge reservoirs on top of the stacks. Over time, this slurry hardens into a crust,
raising the stack and its basin for wastewater. A fully grown stack is as big as a
square mile and as tall as 300 feet high.
In the past 30 years, there have been five “major” spills of phosphogypsum-
tainted water from stacks in Bone Valley. Tens of millions of gallons of
38
Case: 18-10541 Date Filed: 11/04/2019 Page: 39 of 58
phosphogypsum-tainted wastewater have gushed into local rivers, creeks,
wetlands, and aquifers. In 1997, a phosphogypsum spill into Florida’s Alafia River
poisoned 42 miles of its water, killing more than one million baitfish and shellfish,
72,900 gamefish, and 377 acres of trees and vegetation. 1
I dissent today because I believe the Army Corps of Engineers had a duty to
consider the environmental impact of Mosaic’s phosphogypsum stacks before it
granted a permit needed for Mosaic to mine phosphate. Otherwise, I readily join
parts III and IV of the majority opinion. The majority correctly concludes that the
Army Corps of Engineers (“the Corps”) consulted with the Fish and Wildlife
Service, as required by the Endangered Species Act. I also agree with the majority
that the Corps did not violate the National Environmental Policy Act (“NEPA”)
when it declined to publish a separate environmental impact statement for the
South Pasture Mine Extension.
However, I believe the Corps’ environmental impact statement violates
NEPA. As a result, I would sustain the challenge to that document. NEPA
requires federal agencies to consider indirect environmental effects of major
actions. See 42 U.S.C. § 4332; 40 C.F.R. § 1508.8(b). Indirect effects are those
that are “reasonably foreseeable.” 40 C.F.R. § 1508.8(b). This record makes quite
1
See Craig Pittman, The Clock is Ticking on Florida’s Mountains of Hazardous
Phosphate Waste, Sarasota Magazine, Apr. 26, 2017, https://www.sarasotamagazine.com/
articles/2017/4/26/florida-phosphate.
39
Case: 18-10541 Date Filed: 11/04/2019 Page: 40 of 58
clear that it was more than reasonably foreseeable that granting a permit under
section 404 of the Clean Water Act to Mosaic would result in the creation of more
phosphogypsum. Mosaic told the Corps it needed the § 404 permit to mine
phosphate for its fertilizer plant. And again, every single ton of fertilizer-ready
phosphate sourced from Mosaic’s mines produces five tons of radioactive
phosphogypsum. Thus, it is undeniable that issuing a permit to Mosaic’s
phosphate mine would add to the stacks of phosphogypsum already piled high
across central Florida. Yet, the Corps did not consider phosphogypsum as an
indirect effect in the environmental impact statement at issue here.
I view the Corps’ reasons for failing to consider phosphogypsum as an
indirect effect as arbitrary and capricious. See Marsh v. Or. Nat. Res. Council, 490
U.S. 360, 377, 109 S. Ct. 1851, 1861 (1989). In order to hold otherwise, the
majority opinion turns a blind eye to the record here, and expands upon the
argument actually made by the Corps. I part ways with the majority opinion on
four points. First, this record makes clear that phosphogypsum production was a
reasonably foreseeable effect of the § 404 permit that enabled Mosaic to mine
phosphate for fertilizer. Second, the Corps violated its own NEPA procedures
when it considered the benefits of fertilizer manufacturing without considering its
environmental impacts, including the production of radioactive phosphogypsum.
Third, other agencies’ oversight of phosphogypsum did not relieve the Corps of its
40
Case: 18-10541 Date Filed: 11/04/2019 Page: 41 of 58
obligation to consider the environmental effects. Finally, the Corps has underlying
statutory authority to consider phosphogypsum as an indirect effect under NEPA.
I.
The majority opinion is mistaken in concluding that the production of
phosphogypsum was not a reasonably foreseeable consequence of granting Mosaic
a § 404 Clean Water Act permit, and thus not an “indirect effect” the Corps needed
to consider under NEPA. Maj. Op. at 7–10. Aside from being at odds with the
record before us, this conclusion could allow agencies to avoid their obligations to
address important environmental impacts on projects within their jurisdiction.
To begin, the majority opinion glosses over whether the Corps could
reasonably foresee production of phosphogypsum. It first reasons that “fertilizer
production takes place far from and long after” Mosaic uses its § 404 permit to
mine phosphate. Maj. Op. at 8. But this is exactly how NEPA defines “indirect
effects.” Indirect effects are “caused by the action and are later in time or farther
removed in distance,” but still “reasonably foreseeable.” See 40 C.F.R.
§ 1508.8(b) (defining indirect effects). The fact that phosphogypsum production
occurs after the phosphate has been mined and in a different place does not mean it
is not a reasonably foreseeable indirect effect.
Beyond that, the record shows that Mosaic’s entire operation—from
phosphate mining, to beneficiation, to production of phosphoric acid and
41
Case: 18-10541 Date Filed: 11/04/2019 Page: 42 of 58
phosphogypsum—takes place right in Bone Valley. Granted, Mosaic owns tens of
thousands of acres in Bone Valley. But the extraordinary scale on which Mosaic
produces fertilizer makes its production of phosphogypsum more foreseeable, not
less.
The majority opinion hypothesizes about the fertilizer market, the regulatory
landscape, and Mosaic’s business plans. See Maj. Op. at 10. It predicts that
changes in the wider world could distance phosphogypsum from Mosaic’s
phosphate mining. It supposes that because phosphogypsum stacks would exist
without Mosaic producing phosphogypsum, the stacks should not be considered as
environmental effects. See Maj. Op. at 12. But these hypothesized facts cannot
properly relieve the Corps of its obligation to consider environmental effects
altogether. For example, the Corps should surely consider environmental effects
on fish when a river is dredged and filled, even if those fish might also exist in
different waters or if dredging and filling operations ongoing elsewhere would
harm them.
The majority opinion is forced to reason based on hypothetical facts because
the actual facts cannot support its conclusion. There is overwhelming evidence,
acknowledged by the Corps—but not referenced in the majority opinion—that
Mosaic would produce millions of tons of phosphogypsum byproduct as a result of
the dredging and filling permit for its phosphate mine. The operation of this
42
Case: 18-10541 Date Filed: 11/04/2019 Page: 43 of 58
phosphate mine clearly results in the production of phosphogypsum. Indeed, this
fact is more than reasonably foreseeable. It is obvious and certain.
The record undermines the majority opinion’s theories that Mosaic’s
phosphate mining was separate from its fertilizer production. In Mosaic’s initial
application for a permit, it plainly told the Corps that it would have to “cease
operations” at its fertilizer plant “unless it is able to acquire economically viable
phosphate rock from some unknown future source in order to continue operating
it.” It continued: “Mining existing reserves [in Florida] is the only viable long-
term solution to meeting this need” for phosphate ore. When Mosaic amended its
application some time later, it again acknowledged its dependence on mining to
continue its fertilizer production operations. As for the possibility of running the
fertilizer plants on imported phosphate, Mosaic’s applications made clear that this
would not work long-term. Importing phosphate “does not,” as Mosaic explained,
“provide for a predictable business model or allow for evaluation of risk, as
[Mosaic] would have no control of the essential raw material needed for phosphate
fertilizer production.” As a result, Mosaic said importing rock “is neither
reasonable nor practicable” from a business standpoint.
Mosaic told the Corps that its fertilizer plants “would not be able to compete
in the phosphate crop nutrient market if they were required to pay for imported
phosphate rock.” Mosaic explicitly tied its ability to mine to the permit it was
43
Case: 18-10541 Date Filed: 11/04/2019 Page: 44 of 58
seeking: “the viability of the remaining four [fertilizer plants] is dependent upon
the ability to continue phosphate ore mining and phosphate rock production . . . ,
which in turn depends on issuance of the pending 404 Permit applications.”
Thus, Mosaic’s own words belie the conjecture in the majority opinion that
Mosaic might stop producing fertilizer with the phosphate it mined. Mosaic’s
words also deflate the idea that it would not need to mine phosphate, using the
§ 404 permit, in order to produce fertilizer. Certainly, this record shows that it was
at least reasonably foreseeable to the Corps that granting a permit to Mosaic would
result in production of phosphogypsum from Mosaic’s fertilizer plants. The
Corps’ decision to ignore the environmental effects of phosphogypsum based on
the idea that it did not foreseeably result from granting Mosaic a § 404 permit is
simply not supported.
II.
Beyond running counter to the record evidence, the Corps’ decision not to
account for the indirect effects of phosphogypsum violated its own regulations.
The Corps’ environmental impact statement sang the praises of the fertilizer
industry as a reason to award Mosaic a § 404 permit, yet it failed to consider the
industry’s known environmental impacts—like phosphogypsum. This, despite the
Corps’ own regulations that require it to weigh both the benefits and impacts of
fertilizer manufacturing equally, without placing its thumb on the scale.
44
Case: 18-10541 Date Filed: 11/04/2019 Page: 45 of 58
The Corps has regulations implementing its NEPA responsibilities. See 33
C.F.R. pt. 325, app. B. Those regulations establish certain procedures for
considering the environmental effects of granting permits. And these procedures
require the Corps “[i]n all cases” to use the same “scope of analysis” for
“analyzing both impacts and alternatives” as for “analyzing the benefits of a
proposal.” 33 C.F.R. pt. 325, app. B(7)(b)(3) (emphasis added). This requirement
thus dictates how the Corps must frame the scope of its analysis when making
environmental impact statements. See 40 C.F.R. § 1508.25 (defining the scope of
analysis for environmental impact statements); 33 C.F.R. pt. 325, app. B(7)(b).
The Corps’ NEPA implementation procedures require it to conduct an
environmental analysis for portions of the project “over which the [Corps] has
sufficient control and responsibility to warrant Federal review.” 33 C.F.R. pt. 325,
app. B(7)(b)(1), (2). The procedures offer several examples of what this means.
Id. app. B(7)(b)(3). For example, the implementation procedures say the Corps
need not do a NEPA review of the effects of an electric plant if the only Clean
Water Act permit necessary for the project relates solely to a “fill road,” and the
electric plant will not otherwise impact United States waters. Id. B(7)(b)(3). The
admonition to use the same scope of analysis for impacts and benefits in all cases
follows these examples. Id. I understand this admonition to qualify what’s come
before. See, e.g., Edison v. Douberly, 604 F.3d 1307, 1310 (11th Cir. 2010)
45
Case: 18-10541 Date Filed: 11/04/2019 Page: 46 of 58
(interpreting words “in a manner consistent with their plain meaning and context”).
The regulations thus call for the Corps to use a broader scope of review for
environmental impacts whenever it uses that same broader scope of review for
benefits. This is so even if its regulations would not otherwise require
consideration of those impacts.
The Corps was required to consider phosphogypsum here. It framed the
public benefits of the phosphate mine in terms of its importance to fertilizer
production. It noted that nearly all the phosphate rock mined in the United
States—more than 95% of it, to be precise—is used to make wet phosphoric acid,
which has phosphogypsum as a byproduct. And it factored in economic impacts
on the phosphate industry far removed from mining as part of the public’s need for
the project. For example, as one “substantial indirect effect of the mining,” the
Corps pointed to benefits related to “the export of finished phosphate products and
fertilizer through the Port of Tampa each year, [which] contribut[e] significantly to
making the port the state’s largest in tonnage shipped and about the 10th largest in
the nation.”
The majority opinion concludes the Corps did not violate its own regulations
because it simply “explained why phosphate ore is mined in the first place.” Maj.
Op. at 24. But the Corps went much further: it analyzed the economic benefits of
fertilizer production as an indirect effect of granting Mosaic a § 404 permit. Yet in
46
Case: 18-10541 Date Filed: 11/04/2019 Page: 47 of 58
the same document it refused to analyze the impact of phosphogypsum, a
byproduct of the fertilizer, as an indirect effect. The NEPA implementation
regulations do not allow the Corps to have it both ways. That is, it cannot consider
the broad downstream economic benefits of mining and fertilizer production, and
then ignore the environmental impacts associated with those benefits. Its own
regulations require it to do more. See 33 C.F.R. pt. 325, app. B(7)(b).
The majority opinion says it defers to the Corps’ decision to overlook
phosphogypsum as an interpretation of its own regulations. However, the Corps
itself gave no official interpretation of its own regulations that would warrant this
deference. See Auer v. Robbins, 519 U.S. 452, 461, 117 S. Ct. 905, 911 (1997)
(holding that an agency’s interpretation of its own regulations is “controlling”
unless “plainly erroneous or inconsistent with the regulation” (quotation marks
omitted)). Without an agency interpretation, not even one offered “in the form of a
legal brief,” see id. at 462, 117 S. Ct. at 912, the Corps’ failure to analyze
environmental impacts of fertilizer manufacturing does not merit deference.
The majority opinion goes on to insist that the Corps did not exercise
“sufficient control and responsibility” over Mosaic’s manufacturing of phosphate-
based fertilizer, so the Corps did not have to consider any effects of fertilizer
production. Maj. Op. at 21–27. I agree the Corps is not required to analyze the
impacts of activities over which it lacks “sufficient control and responsibility.”
47
Case: 18-10541 Date Filed: 11/04/2019 Page: 48 of 58
But it must home its analysis in on the “specific activity requiring a” permit. 33
C.F.R. pt. 325, app. B(7)(b)(1). And it is not free to disregard the impacts of
activities over which it has no control when it chooses to count the benefits of
those same activities. This required balance effectuates NEPA’s purpose of
ensuring informed decision-making. See Marsh, 490 U.S. at 371, 109 S. Ct. at
1858. The majority’s approach, which allows consideration of endless benefits
without concomitant consideration of the impacts associated with those benefits,
thwarts this purpose.
In short, this record does not support the majority’s conclusion that the
Corps followed its own procedures. The Corps did not do its job when it failed to
consider phosphogypsum as an indirect environmental effect of Mosaic’s § 404
permit.
III.
The majority opinion not only sanctions the Corps’ wayward decision to
overlook phosphogypsum’s environmental effects for the reason that fertilizer
production was somehow unforeseeable. The opinion also holds that the Corps
could not have considered phosphogypsum because it altogether lacked the
statutory authority to do so. Maj. Op. at 12–18. But this exceeds any disclaimer
the Corps made on its own behalf. Instead, the Corps initially said it did not
consider phosphogypsum because other state and federal agencies regulate it and
48
Case: 18-10541 Date Filed: 11/04/2019 Page: 49 of 58
those agencies therefore more directly cause the environmental effects of
phosphogypsum.
Thus, when the majority opinion holds that the Corps had no statutory
authority at all to consider phosphogypsum, it transforms the argument made by
the Corps, and at the same time deals a blow to NEPA. I discuss each aspect of the
majority opinion in turn.
A.
The Corps decided it need not account for environmental effects of
phosphogypsum because other agencies more directly regulated these
environmental effects. As I understand it, the Corps is assigning responsibility for
the effects of pollution not to the polluter, but to other agencies that regulate the
polluter. The idea is that the manner in which other agencies regulate the polluter
ultimately delivers the pollution. But this notion ignores the Corps’ own
responsibility to monitor and regulate polluters. And the fact that other agencies
have regulatory responsibilities in this area does not mean the Corps is relieved of
its own duties. See Sierra Club v. Fed. Energy Regulatory Comm’n (“Sabal
Trail”), 867 F.3d 1357, 1375 (D.C. Cir. 2017) (“[T]he existence of permit
requirements overseen by another federal agency or state permitting authority
cannot substitute for a proper NEPA analysis.”). NEPA requires the Corps to
answer the question of whether some downstream impact should count as an
49
Case: 18-10541 Date Filed: 11/04/2019 Page: 50 of 58
indirect effect, and the answer turns on whether it is “reasonably foreseeable.” 40
C.F.R. § 1508.8(b). Another agency’s jurisdiction over an effect does not make
the effect unforeseeable. Cf. Sabal Trail, 867 F.3d at 1375.
The majority opinion concludes “the existing regulatory landscape over
phosphogypsum,” overseen by the EPA and the state of Florida, sets
phosphogypsum out of the Corps’ reach. Maj. Op. at 12. But this conclusion puts
NEPA entirely out of business. Given our robust “administrative state with its
reams of regulations,” there will always be another agency regulating a potential
environmental harm. See Alden v. Maine, 527 U.S. 706, 807, 119 S. Ct. 2240,
2291 (1999) (Souter, J., dissenting). NEPA does not ask agencies to consider only
novel environmental effects that are not otherwise addressed by the administrative
state. NEPA requires agencies to consider direct, indirect, and cumulative
environmental effects, full stop. See 40 C.F.R. §§ 1508.7, 1508.8.
The majority relies on Department of Transportation v. Public Citizen, 541
U.S. 752, 124 S. Ct. 2204 (2004), and Ohio Valley Environmental Coalition v.
Aracoma Coal Co., 556 F.3d 177 (4th Cir. 2009), to support its conclusion that
Florida and the EPA’s regulation of phosphogypsum means it is not a foreseeable
environmental effect that the Corps must consider. See Maj. Op. at 13–17, 26–28.
These cases do not support this conclusion. Public Citizen and Aracoma Coal
address unique factual contexts that implicate federalism and constitutional
50
Case: 18-10541 Date Filed: 11/04/2019 Page: 51 of 58
presidential power. Those facts are not at issue in our more run-of-the-mill case
here.
Public Citizen held that the Federal Motor Carrier Safety Administration
(“FMCSA”) did not violate NEPA when it did not consider the environmental
effects of the President’s decision to honor treaty obligations and allow Mexican
motor carriers into the United States. 541 U.S. at 766, 773, 124 S. Ct. at 2214,
2218. The North American Free Trade Agreement (“NAFTA”) required the
United States to admit trucks from Mexico, despite American concerns that those
trucks were unsafely regulated. Id. at 759–60, 124 S. Ct. at 2211. To comply with
NAFTA, the President directed the FMCSA to set new safety standards and admit
Mexican trucks that met those standards. Id. at 760, 124 S. Ct. at 2211. Public
Citizen thus addressed the circumstance in which the decision whether to admit
Mexican trucks was entirely out of the FMCSA’s control. Id. at 772–73, 124 S. Ct.
at 2218. Even if the FMCSA considered the environmental impacts of allowing
trucks from Mexico, this data could not have changed its duty to comply with
NAFTA and the President’s order to admit the trucks. See id. at 768, 124 S. Ct. at
2216.
Public Citizen does not control here. The EPA and the state of Florida’s
primary oversight of phosphogypsum stacks is a far cry from the unilateral
authority a president has to enter into binding treaties. Also, in contrast to the
51
Case: 18-10541 Date Filed: 11/04/2019 Page: 52 of 58
FMCSA, the Corps is charged with undertaking a public-interest review of § 404
permits and it enjoys discretion to grant or deny those permits based on
environmental concerns. See 33 C.F.R. § 320.4(a) (prescribing public-interest
review of permits issued by the Corps); Sabal Trail, 867 F.3d at 1380 (Brown, J.,
concurring in part and dissenting in part) (concluding Public Citizen does not apply
where the agency has “broad discretion” under public-interest review to account
for environmental impacts). The Corps is empowered to deny § 404 permits if it
determines the permit’s impact on “general environmental concerns,” “water
quality,” or “the needs and welfare of the people” would be against “the public
interest.” 33 C.F.R. § 320.4. The power of the FMCSA to deny entry to Mexican
motor carriers for environmental reasons had been bargained away by treaty. See
Public Citizen, 541 U.S. at 770, 124 S. Ct. at 2217. In contrast, the Corps has the
power to, and must, consider environmental effects when issuing Clean Water Act
permits.
Neither does Aracoma Coal support the majority’s holding. In Aracoma
Coal, the Fourth Circuit held that NEPA did not require the Corps to assess the
environmental impact of a mining project seeking a § 404 permit to fill stream
waters. 556 F.3d at 197. The court was faced with reconciling NEPA and the
Surface Mining Control and Reclamation Act of 1977, a federal statute that gave
states “exclusive jurisdiction over the regulation of surface coal mining and
52
Case: 18-10541 Date Filed: 11/04/2019 Page: 53 of 58
reclamation operations on non-Federal lands . . . .” Id. at 189 (quotation marks
omitted). Thus, Aracoma Coal addressed an “environmental review process that
has already been delegated to federally approved state programs.” Id. at 196. We
do not address a program under the Surface Mining Act here, and Florida does not
have “exclusive jurisdiction” to regulate phosphogypsum.2 See id. at 195.
To the contrary, here there is no comprehensive scheme of state regulation
that would remove the Corps’ power to consider broad environmental effects of
phosphate mining, fertilizer production, and phosphogypsum. As it must, the
majority opinion recognizes that Florida and the EPA regulate phosphogypsum
concurrently. Maj. Op. at 15. Thus, the Corps would not trample on a careful
federalist balance, like the one addressed in Aracoma Coal, by considering the
environmental impact of phosphogypsum.
Neither Public Citizen nor the mere fact that another agency has jurisdiction
changes the reality that Mosaic’s phosphate mine will create more phosphogypsum
to feed the existing stacks in Bone Valley. The Corps’ refusal to analyze
2
The majority also relies on Kentuckians for the Commonwealth v. U.S. Army Corps of
Engineers, 746 F.3d 698 (6th Cir. 2014), authored by our visiting colleague on his home court.
See id. at 701; Maj. Op. at 26–27. Like Aracoma Coal, Kentuckians does not bear on this case.
Kentuckians holds that NEPA did not require the Corps to consider the environmental impact of
a surface mining project. See 746 F.3d at 709, 713–14. Like Aracoma Coal, the Kentuckians
decision hinged on the federalist balance struck in the Surface Mining Act. See id. at 713
(“Congress has granted exclusive jurisdiction over the regulation of surface mining [to]
Kentucky . . . . The Corps, in light of the entire project’s approval under the more comprehensive
[Surface Mining Act], did not abuse its discretion in limiting the scope of its NEPA review.”).
53
Case: 18-10541 Date Filed: 11/04/2019 Page: 54 of 58
phosphogypsum as an indirect effect cannot be excused by other agencies’ ability
to oversee it.
B.
I now turn to the majority’s conclusion that the Corps altogether lacked
statutory authority to consider phosphogypsum as an indirect effect of enabling
Mosaic’s phosphate mining. See Maj. Op. at 12–18. To start, this holding provides
an explanation for the Corps’ actions that the Corps did not give itself. See Motor
Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,
43, 103 S. Ct. 2856, 2867 (1983) (“We may not supply a reasoned basis for the
agency’s action that the agency itself has not given.” (quotation marks omitted)).
But setting aside that the Corps did not advance the argument made in the majority
opinion, the argument cannot withstand scrutiny in any event.
The majority says the Clean Water Act allows the Corps to deny a § 404
permit for one reason only: environmental effects from dredged and fill material
discharged into U.S. waters. Maj. Op at 12, 16–17 (citing 33 U.S.C. § 1344(c)
(giving the Corps authority over § 404 permits)). To arrive at this conclusion, the
majority relies on Public Citizen’s holding that an agency is not required to
consider environmental effects where the agency “has no ability to prevent a
certain effect due to its limited statutory authority.” 541 U.S. at 770, 124 S. Ct. at
2217. Thus the majority opinion reasons that since the Corps could not deny a
54
Case: 18-10541 Date Filed: 11/04/2019 Page: 55 of 58
§ 404 permit for any reason other than dredging and filling, it did not have to
consider any environmental effects beyond dredging and filling. Maj. Op. at 16–
17. This logic continues: phosphogypsum is not a dredged and fill material
discharged into U.S. waters, so the Corps had no statutory authority to consider its
environmental effects. Maj. Op. at 15–16.
Again, I reject this justification. Certainly, the Corps has authority to
consider the environmental effects of phosphogypsum. It can even deny dredging
and filling permits based on the production of phosphogypsum. That is because
the implementing regulations of the Clean Water Act give the Corps the power to
deny a dredging and filling permit when potential impacts on “general
environmental concerns,” “water supply and conservation,” and “water quality”
outweigh “[t]he benefits which reasonably may be expected to accrue” from the
proposed activity. 33 C.F.R. § 320.4(a)(1) (guiding the Corps’ “decision whether
to issue a permit”). This record shows that radioactive phosphogypsum stacks
tower above Florida water sources, and these stacks have spilled waste into the
surrounding waters. Production of more phosphogypsum is a clearly foreseeable
result of Mosaic’s phosphate mining and fertilizer operation. The Corps should
have assessed the environmental impact that leaky phosphogypsum stacks might
have on U.S. waters and the environment at large before granting Mosaic its
permit.
55
Case: 18-10541 Date Filed: 11/04/2019 Page: 56 of 58
I fear the majority’s holding does damage to the Clean Water Act’s
implementing regulations. In support of its conclusion, the majority opinion says
these implementing regulations improperly “manufacture additional agency
power.” Maj. Op. at 17. Despite the clear statement in the regulations that the
“decision whether to issue a permit will be based on” factors like “conservation”
and “general environmental concerns,” see 33 C.F.R. § 320.4(a)(1), the majority
says this regulation does not empower the Corps to deny a permit for general
environmental reasons. This cannot be right.
Even if I were to accept the majority’s premise that the Corps’ authority to
issue § 404 permits under the Clean Water Act must turn only on considerations of
dredging and filling, see Maj. Op. at 16, the text of the Clean Water Act still
requires the Corps to give a “hard look” under NEPA to the broader effects of the
dredging. “Courts have consistently held that the Corps’ NEPA obligations when
issuing a § 404 dredge and fill permit . . . extend beyond consideration of the
effects of the discharge of dredged or fill material in jurisdictional waters.” Sierra
Club, Inc. v. Bostick, 787 F.3d 1043, 1063 (10th Cir. 2015) (McHugh, J.,
concurring); see also O’Reilly v. U.S. Army Corps of Eng’rs, 477 F.3d 225, 232–34
(5th Cir. 2007) (holding that NEPA required the Corps to consider the
environmental effects of increased auto traffic when authorizing dredging and
filling to construct a residential subdivision); Save Our Sonoran, Inc. v. Flowers,
56
Case: 18-10541 Date Filed: 11/04/2019 Page: 57 of 58
408 F.3d 1113, 1118, 1122 (9th Cir. 2005) (holding the Corps must consider the
environmental impact of an entire residential subdivision before granting a permit
to fill natural waterways running through the subdivision). Simply put, “[a]lthough
the Corps’ permitting authority is limited to those aspects of a development that
directly affect jurisdictional waters, it has responsibility under NEPA to analyze all
of the environmental consequences of a project. . . . The Corps’ responsibility
under NEPA to consider the environmental consequences of a permit extends even
to environmental effects with no impact on jurisdictional waters at all.” Sonoran,
406 F.3d at 1122.
Requiring the Corps to consider the environmental implications of the
underlying project benefited by dredging and filling is true to NEPA and the
realities of our “human environment.” See 42 U.S.C. § 4332(C) (explaining
agencies’ NEPA obligations). Considering the entire project preserves NEPA’s
“information-forcing” purpose by airing the environmental consequences of the
entire endeavor. See Sabal Trail, 867 F.3d at 1367. This approach recognizes that
environmental consequences do not occur in a vacuum. See, e.g., Erin E. Prahler
et al., It All Adds Up: Enhancing Ocean Health by Improving Cumulative Impacts
Analyses in Environmental Review Documents, 33 Stan. Envtl. L.J. 351, 354
(2014) (“The environmental effects caused by human activities do not occur
independently of one another.”). And evaluating the entire project is consistent
57
Case: 18-10541 Date Filed: 11/04/2019 Page: 58 of 58
with the Corps’ authority to issue permits “based on an evaluation of the probable
impacts . . . of the proposed [dredging and filling] activity and its intended use on
the public interest.” See 33 C.F.R. § 320.4(a)(1) (emphasis added). As the record
clearly shows, Mosaic intended to use its § 404 permit to mine phosphate for
fertilizer. The Corps had the authority to consider the environmental effects that
emanate from this permit.
IV.
This Court is duty-bound to enforce NEPA when an agency strays from it.
See Sabal Trail, 867 F.3d at 1367–68. I do not believe the Corps honored its
obligations under NEPA. Because none of the reasons the Corps gave for
excluding consideration of phosphogypsum comply with NEPA, I would invalidate
the environmental impact statement and send it back to the Corps to prepare a new
one. The Corps should have articulated a NEPA-compliant reason for excluding
phosphogypsum from consideration or else considered it as an indirect effect. I
respectfully dissent.
58