Environmental Law

• Jurisdiction: United States,Federal
• Publication year: 2020
• Citation: Vol. 71 No. 4

Environmental Law

Travis M. Trimble

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Environmental Law

by Travis M. Trimble^*

Notable cases decided in the United States Court of Appeals for the Eleventh Circuit in 2019 all arose out of disputes that originated under the Clean Water Act (CWA).¹ The Eleventh Circuit held that, in preparing an Environmental Impact Statement (EIS) in connection with its decision to issue a dredge and fill permit under Section 404² of the CWA, the Corps of Engineers (Corps) was not required to consider potentially negative environmental effects resulting from activity made possible by the permit where the agency had no authority independently to regulate the effects.³ The court also held that the Environmental Protection Agency (EPA) had the discretion to decide whether to commence withdrawal proceedings as to Alabama's authority to operate the CWA's National Pollution Discharge Elimination System (NPDES)⁴ permitting program even where the agency acknowledged that the state had not at all times fully complied with program requirements.⁵ The United States District Court for the Southern District of Georgia, one of several courts in the country taking up challenges to the EPA's and the Corps' 2015 Rule defining the term "Waters of the United States" under the CWA, concluded that the Rule was beyond the scope of the agencies' statutory authority in several respects, including the agencies' use of the term "interstate waters," which had been included in the regulatory definition of the term since 1978.⁶ Finally, the United States District Court for the Northern District of Georgia concluded that the proper mechanism for a

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defendant to challenge the sufficiency of the 60-day ante litem notice under the CWA's citizen-suit provision was a motion to dismiss for insufficiency of process under Federal Rule of Civil Procedure 12(b)(4),⁷ and that the plaintiffs' failure in the notice to reference the specific statutory provision of the CWA which the plaintiffs claimed the defendants violated did not make the notice deficient so as to justify dismissal of the plaintiffs' claim.⁸

In Center for Biological Diversity v. United States Army Corps of Engineers,⁹ a case addressing the scope of environmental impacts of the Corps' permitting decision the agency was required to consider in preparing an EIS for the permitting decision, the Eleventh Circuit concluded that under the "rule of reason" as applied by the Supreme Court of the United States in Department of Transportation v. Public Citizen,¹⁰ the Corps was not required to consider any negative environmental impacts of its decision over which it did not have regulatory authority.¹¹ Accordingly, the Eleventh Circuit held that the Corps did not act arbitrarily and capriciously when it did not consider the environmental impact of phosphogypsum, a waste byproduct of fertilizer manufacturing, when it prepared an EIS for, and then approved, a CWA § 404 permit allowing the fertilizer manufacturer to discharge dredged or fill material into jurisdictional waters in connection with its proposed phosphate mining operations in Florida.¹²

The permittee, Mosaic Fertilizer, mines phosphate in Florida for the manufacture of fertilizer. In the mining operation, Mosaic excavates sand, clay, and phosphate ore from the earth. In the manufacturing operation, the phosphate ore is separated and then processed into phosphoric acid used to produce fertilizer. A waste byproduct of the manufacturing process is phosphogypsum, which is radioactive. The production of one ton of phosphoric acid from ore produces five tons of waste phosphogypsum. Mosaic's operations produce over thirty million tons of phosphogypsum per year. Because of radioactive uranium and other hazardous metals in the phosphogypsum, it must be allowed to "weather" in open-air stacks that are hundreds of acres wide and hundreds of feet tall.¹³

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In an area in central Florida known as "Bone Valley," where Mosaic's mining and manufacturing operations are located, over a billion tons of phosphogypsum are stored in stacks. To dispose of the phosphogypsum, Mosaic pumps a mixture of phosphogypsum and water into reservoirs on top of the stacks to allow it to dry into a crust. This phosphogypsum-containing wastewater has on occasion spilled from the stacks, contaminating rivers, creeks, wetlands, and aquifers.¹⁴

Mosaic sought to extend its phosphate mining operations in central Florida. To do so, it needed a permit from the State of Florida allowing it to mine phosphate, and it also needed, and applied for, a § 404 permit from the Corps allowing it to discharge dredged and fill material into waters of the United States in connection with the mining.¹⁵ In compliance with the National Environmental Policy Act (NEPA),¹⁶ the Corps prepared an EIS.¹⁷ In the EIS, the Corps considered "[D]irect effects, such as how the discharge of . . . material into surrounding wetlands might affect the water quality of those wetlands," and "indirect effects, such as how that discharge might through stormwater runoff be carried to and affect the quality of distant waters."¹⁸ However, "The Corps determined that the environmental effects of phosphogypsum production and storage fell outside the scope of its NEPA-[mandated] review."¹⁹

The plaintiff, Bio-Diversity, filed suit in the United States District Court for the Middle District of Florida, challenging the sufficiency of the EIS under NEPA, among other things. Bio-Diversity contended that the Corps' failure to consider the effects of phosphogypsum as an indirect result of its issuing the 404 permit was arbitrary and capricious.²⁰ The district court granted summary judgment to the Corps on Bio-Diversity's NEPA claim, and Bio-Diversity appealed.²¹

The Eleventh Circuit affirmed.²² The court noted that under NEPA, a federal agency considering a "major federal action" must produce an EIS that takes into account the "direct, indirect, and cumulative effects" of the action.²³ Indirect effects are those "[C]aused by the action and are

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later in time or farther removed in distance, but are still reasonably foreseeable" as a result of the agency's action.²⁴

The court first noted that the causal connection between the permit allowing for phosphate mining from four of Mosaic's mines and harm caused by runoff from Mosaic's phosphogymsum stacks is tenuous: "[P]hosphogypsum is a byproduct not of dredging and filling—nor even of phosphate mining or beneficiation—but of fertilizer production."²⁵ But the court relied more heavily on two other bases for its holding, either or both of which seemingly would excuse the Corps from considering the adverse effects of phosphogypsm in its permitting decision.²⁶ First, the court pointed to the Supreme Court's "rule of reason" analysis in Public Citizen: "[W]here 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."²⁷ The court noted that, "The Corps has no ability categorically to prevent fertilizer production or the creation and storage of phosphogypsum."²⁸ Since the Corps' jurisdiction did not include phosphogypsum, as a matter of law, phosphogypsum could not be an effect of the Corps' § 404 permitting decision.²⁹ Second, while, "[T]he Corps could in fact mitigate the effects of phosphogypsum by rejecting the . . . permit and choking off Mosaic's supply of phosphate ore . . . the Corps is not statutorily authorized to base its permitting decision on . . . effects that are so indirectly caused by its action."³⁰ The court explained that the Corps' authority to deny a permit under § 404 is limited to those situations where the discharge of dredged or fill material alone would "have an unacceptable adverse effect" on specified environmental receptors.³¹ In other words, for either reason, the Corps is obligated to consider only the effects, including indirect effects, of the discharge of dredged or fill material into waters, and not the effects of the permittee's project, which but for the issuance of the permit would not be possible.³²

Since the Corps did not have the authority to regulate Mosaic's production and storage of phosphogypsum, and since it did not have the

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authority to deny Mosaic's § 404 permit based on the effects of phosphogypsum on the environment, it followed that information regarding those effects would not be useful to the Corps in making its permitting decision, and therefore did not need to be included in the EIS.³³

In Cahaba Riverkeeper v. United States Environmental Protection Agency,³⁴ in an issue of first impression in the Eleventh Circuit, the Eleventh Circuit held that the EPA has discretion whether to begin proceedings to withdraw a state's authority to administer the CWA's NPDES permit program.³⁵ Further, the EPA did not abuse its discretion in deciding not to move to withdraw Alabama's authority to administer the NPDES program despite finding that Alabama had not always administered the program in compliance with the CWA.³⁶

The petitioners, seven environmental groups that advocated for different river systems in Alabama, had petitioned the EPA to begin proceedings to withdraw Alabama's authority to administer the NPDES program. The petitioners initially identified twenty-six grounds for withdrawal. The EPA issued a final decision declining to begin withdrawal proceedings, and the petitioners appealed on four grounds—specific deficiencies in Alabama's administration of the program—that petitioners claimed warranted withdrawal of Alabama's authority. First, petitioners claimed that Alabama's public notices of pending NPDES permitting decisions violated NPDES regulations because the notices, which must be published in a newspaper in the area affected by the decision, do not give a general description of the location of existing or proposed pollutant discharge points, as they are...