Environmental Law - W. Scott Laseter and Julie v. Mayfield

• Publication year: 1997

Environmental Law

W. Scott Laseter^* and

Julie V. Mayfield^**

I. Introduction and Scope

This Article marks the fourth survey of environmental law in the Eleventh Circuit.¹ In terms of environmental issues, the most recent period was an active one for the Eleventh Circuit and its associated district courts² during which the appellate court handed down its first Endangered Species Act decisions;³ issued a sweeping decision under the Comprehensive Environmental Response, Compensation, and Liability Act;⁴ and heard several other cases raising important environmental questions. Additionally, the survey period saw a federal district judge from Alabama strike a blow against Superfund's⁵ vaunted armor by declaring that the statute should not be given retroactive effect.⁶ While the long-term viability of that particular decision remains to be seen, it has at least sparked a spirited debate among environmental practitioners both in the Eleventh Circuit and across the country.

In keeping with previous surveys, this Article begins by discussing cases addressing the National Environmental Policy Act ("NEPA");⁷ followed by the Clean Water Act ("CWA");⁸ the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA");⁹ and the Resource Conservation and Recovery Act ("RCRA").¹⁰ As suggested earlier, this survey also includes a discussion of the Endangered Species Act ("ESA").¹¹ With the exception of the section on the ESA, this Article omits a review of the basic statutory scheme of the acts in question as these reviews can be found in previous survey articles.¹²

II. Discussion Of Cases

A. National Environmental Policy Act

The Eleventh Circuit considered two cases during the survey period that raised the issue of what constitutes a "significant impact" on the environment sufficient to trigger an obligation to perform an environmental impact statement ("EIS") under NEPA. In both cases, plaintiffs disagreed with the agency's determination that its proposed action would not have a significant impact, and in both cases the court upheld the agency's decision. These cases join with decisions from this and other circuits indicating that, to challenge an agency's action under NEPA, plaintiffs must do more than earnestly disagree with the agency's decision. Rather, to prevail, NEPA plaintiffs must almost always show that the agency either failed to take into consideration relevant information¹³ or made some fundamental analytical error.¹⁴

In Preserve Endangered Areas of Cobb's History, Inc. v. United States Army Corps of Engineers,¹⁵ the Eleventh Circuit considered whether the United States Army Corps of Engineers ("Corps") acted arbitrarily and capriciously in issuing a finding of no significant impact ("FONSI") following an environmental assessment ("EA") in connection with a CWA section 404¹⁶ permit application. While at first glance the decision appears to consider whether the issuance of the section 404 permit was a "major federal action," the case is best understood as raising the question of what constitutes a "significant impact."¹⁷ Accordingly, a brief detour to review the Corps' regulations implementing NEPA may be helpful before discussing the case itself.

Normally, the threshold question in NEPA cases is whether the proposed agency activity is a "major federal action."¹⁸ In the absence of a major federal action, NEPA simply does not apply.¹⁹ If, on the other hand, the activity is a "major federal action," the next question is whether the action will have a "significant impact" on the environment.²⁰ The Corps' regulations, however, alter this analytical sequence in that the Corps concedes that the issuance of a section 404 permit is a major federal action.²¹ Accordingly, under the Corps' regulations, the threshold question in section 404 permit cases is whether the proposed action will have a significant impact on the environment. This question is answered through the preparation of an EA.²² Although the court in Preserve Endangered Areas makes reference to the question of whether the permit approval was a major federal action, the real thrust of the opinion deals with the question of significant impact.

Plaintiffs in Preserve Endangered Areas sued to stop a proposed road which would have cut through approximately four acres of wetland as well as one acre of a Cobb County, Georgia, historic district.²³ As part of the CWA section 404 permit application, Cobb County developed a mitigation plan that set aside almost twenty acres of wetlands for preservation and restored another eight acres of wetlands.²⁴ The plan also contained measures to mitigate the effect the highway would have on the historic district by providing for special signs and limited access in those areas.²⁵ Taking into account the mitigation plan, the Corps issued a FONSI and granted the section 404 permit application, determining the project would not significantly affect the environment.²⁶

Claiming that the Corps acted arbitrarily and capriciously in issuing the permit, plaintiffs first argued that the Corps should not have segmented the project so that it was viewed in isolation instead of as part of a larger highway system.²⁷ The court, as had the Corps, examined the project under the Federal Highway Administration guidelines that govern whether a project is a stand-alone project.²⁸ Placing the burden on the plaintiffs, the court held that they failed to show that the Corps had not considered these factors or that it was fundamentally mistaken in its analysis.²⁹ Therefore, the court held, the Corps "did not act arbitrarily and capriciously when it analyzed the highway as a stand-alone project."³⁰

The court next considered plaintiffs' position that the highway would have a significant impact on both the wetlands and the historic district.³¹ On both points, however, the court found that the Corps did not err in its decision.³² The court explained:

[ajlthough the plaintiffs disagree with the conclusion of the Corps, they can point to nothing that would make the Corps [sic] decision arbitrary and capricious. The Corps considered the impact on the wetlands, considered the county's mitigation plan, and reasonably concluded that the impact on the wetlands would not be significant.³³

As for the historic district, the court likewise stated that, "[t]he plaintiffs may disagree with [the Corps' conclusion], but the Corps considered their arguments, considered the effects on the district, and considered the county's mitigation plan. The conclusion was based on those considerations."³⁴ Accordingly, the Eleventh Circuit affirmed the district court's grant of summary judgment in favor of the Corps on the NEPA issues.³⁵

In Fund for Animals, Inc. v. Rice,³⁶ the Eleventh Circuit further emphasized the need for plaintiffs to produce either new information or show material analytical errors in order to prevail under NEPA. Fund for Animals involved a Florida county's effort to build a landfill on a 6150 acre site called the Walton Tract.³⁷ The site contained significant acreage of wetlands, giving rise to the county's application for a CWA section 404 permit.³⁸ As part of its review process, the Corps performed an EA and issued a FONSI.³⁹ Consequently, the Corps issued the section 404 permit without preparing an EIS.⁴⁰

Among a number of other claims,⁴¹ plaintiffs objected to the Corps' FONSI under NEPA. Following the district court's grant of summary judgment in favor of the Corps, plaintiffs appealed, claiming that the Corps ignored the proposed project's harmful effects on the environment and, therefore, violated NEPA by not preparing an EIS.⁴² Setting forth the familiar standard of review, the court explained that its "only role [under NEPA] is to ensure that the agency has taken a 'hard look' at the environmental consequences of the proposed action."⁴³ Thus, "once an agency has made a decision subject to NEPA's procedural requirements, the only role for a court is to insure that the agency has considered the environmental consequences; it cannot interject itself within the area of discretion of the executive."⁴⁴

Examining the facts, the court noted that when the Corps issued the FONSI, it had in its possession two "no jeopardy" biological opinions issued by the Fish and Wildlife Service ("FWS") regarding the endangered and threatened species in the area, volumes of information gathered at two public hearings, the benefit of five years of administrative review of the project, and the approval of the permit by the EPA.⁴⁵ Based on this information, the court found that the Corps had considered all the environmental consequences of the landfill raised by plaintiffs, and therefore, the Corps' decision was not arbitrary or capricious.⁴⁶

As suggested earlier, Fund for Animals and Preserve Endangered Areas join a long line of cases in which courts have refused to second-guess an agency's judgment regarding the importance or significance of impacts when the agency has considered all the pertinent information.⁴⁷ The lesson of these cases is that success under NEPA is more likely if a plaintiff can call to the court's attention either factors not considered by the agency in assessing the significance of the impacts or an error in its analysis, rather than merely pressing a disagreement with the agency's conclusion, no matter how heart-felt (or even justified) the plaintiff's difference of opinion may be.

B. Clean Water Act

The following CWA cases are divided into two sections. The first section examines those cases that are brought under the citizen suit provision of the CWA. The second section considers a case brought by the government for a violation of section 404.

1. Citizen Suits. In Hughey v. JMS Development Corp. ,⁴⁸ the court considered whether a defendant home builder had violated section 301 of the CWA by discharging stormwater without a National Pollutant Discharge Elimination System ("NPDES") permit when no permit for such construction...