Center for Biological Diversity et al v. U.S. Army Corps of Engineers et al
Filing
78
ORDER denying 61 --motion for summary judgment; denying 62 --motion to supplement; granting 73 --motion for summary judgment; granting 74 --motion for summary judgment; directing the clerk to ENTER JUDGMENT for the defendants and against the plaintiffs and to CLOSE the case. Signed by Judge Steven D. Merryday on 12/14/2017. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CENTER FOR BIOLOGICAL
DIVERSITY, et al.,
Plaintiffs,
v.
CASE NO. 8:17-cv-618-T-23MAP
U.S. ARMY CORPS
OF ENGINEERS, et al.,
Defendants.
____________________________________/
ORDER
In 2010, a predecessor of Mosaic Fertilizer applied to the Army Corps of
Engineers for a Clean Water Act (CWA) permit and proposed to mine phosphatic
rock on several thousand acres in Hardee County. Six years later, the Corps issued a
permit for the mine, which the parties call the “South Pasture Extension” (SPE)
mine. Suing (Doc. 1) under the National Environmental Policy Act (NEPA), the
Endangered Species Act (ESA), the CWA, and the Administrative Procedure Act
(APA), and claiming that the Corps acted arbitrarily and capriciously, the plaintiffs
request the invalidation of the SPE permit. The plaintiffs move (Doc. 61) for
summary judgment and assert a dozen arguments for invalidating the permit. Also,
Mosaic and the federal-government defendants move (Docs. 73 and 74) for summary
judgment and argue that the permitting process comports with the applicable law.1
STANDARD OF REVIEW
Exceedingly deferential to an agency’s decision, the judiciary invalidates a
decision only if the agency acted arbitrarily and capriciously. Fund for Animals, Inc. v.
Rice, 85 F.3d 535, 541–42 (11th Cir. 1996) (applying 5 U.S.C. § 706). An agency acts
arbitrarily and capriciously, for example, if the agency relies on an impermissible
factor, if the agency fails to consider an important aspect of an issue, if the
administrative record belies the agency’s explanation for a decision, or if the agency’s
explanation for a decision “is so implausible that [the decision] could not be ascribed
to a difference in view or [] agency expertise.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43–44 (1983). The Eleventh Circuit
describes Section 706 of the APA as subjecting an agency’s decision to a “rationality”
review. Miccosukee Tribe of Indians of Florida v. United States, 566 F.3d 1257, 1264
(11th Cir. 2009) (citing Sierra Club v. Van Antwerp, 526 F.3d 1353, 1359–60 (11th Cir.
2009)).
DISCUSSION
1. Motion to supplement the administrative record
The plaintiffs move (Doc. 62) to append to the administrative record a series of
e-mails (Doc. 62-5) between Hardee County resident Brooks Armstrong and an
1
A March 31, 2017 order (Doc. 33) grants Mosaic’s motion to intervene as a defendant.
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employee of the Corps. In the e-mails, Armstrong never mentions by name the
proposed SPE mine but expresses several concerns about phosphate mining and the
fertilizer industry. The plaintiffs argue for the inclusion of the e-mails in the
administrative record “because it appears the agency relied on, or should have relied
on,” the e-mails. (Doc. 62 at 8)
Section 706 of the APA requires a district court to review the administrative
record. Preserve Endangered Areas of Cobb’s History, Inc. v. U.S. Army Corps of Eng’rs,
87 F.3d 1242, 1246 (11th Cir. 1996) (“The focal point for judicial review of an
administrative agency’s action should be the administrative record.”). Because an
agency uniquely knows the content of the record the agency considered in deciding
an issue, the judiciary defers to an agency’s certification of the administrative record
and permits supplementing the administrative record only if the plaintiff initially
shows “strong [evidence] of bad faith or improper behavior” in the agency’s
production of the administrative record. Alabama-Tombigbee Rivers Coal. v.
Kempthorne, 477 F.3d 1250, 1262 (11th Cir. 2007) (citing Citizens to Preserve Overton
Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971)).2
In this action, the custodian of the administrative record for the Corps and for
the Fish & Wildlife Service certified under oath that each agency respectively filed
2
Dicta in Preserve Endangered Areas of Cobb’s History mentions four circumstances in which the
Ninth Circuit permits the district court to “go beyond the administrative record.” 87 F.3d at 1246 n.2
(citing Animal Def. Council v. Hodel, 840 F.2d 1432 (9th Cir. 1988)). However, the result in this
instance remains the same if Animal Defense Council states the law in the Eleventh Circuit (but no
Eleventh Circuit decision so holds) because none of the circumstances that in the Ninth Circuit
warrant supplementing the administrative record appear in this action.
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the “complete administrative record.” (Docs. 48-1 and 49-1) Because the plaintiffs
show nothing approaching the bad faith or improper behavior necessary to
supplement the administrative record,3 the plaintiffs’ motion (Doc. 62) to supplement
the administrative record is DENIED.4
2. The plaintiffs’ motion for summary judgment
A. Failure to conduct a “site-specific” Environmental Impact
Statement (EIS)
NEPA requires an agency to “take a hard look” at the environmental impact
of a proposed action but imposes on the agency no substantive obligation to preserve
the environment. Robertson v. Methow Valley Citizens Council, 409 U.S. 332, 350–51
(1989) (“NEPA merely prohibits uninformed — rather than unwise — agency
action.”). Under NEPA, a federal action (which includes the issuance of a CWA
permit) that “significant[ly]” impacts the environment requires an Environmental
Impact Statement (EIS). An agency may prepare an environmental assessment to
determine whether a proposed action warrants an EIS. If the environmental
assessment finds no “significant” impact on the environment, the agency need not
prepare an EIS. Sierra Club v. U.S. Army Corps of Engineers, 295 F.3d 1209, 1214–16
(11th Cir. 2002) (explaining the NEPA procedure). The parties agree that the SPE
3
Even if the plaintiffs showed a glaring omission in the administrative record submitted to
the district court, Overton Park explains the remedy for an inadequate administrative record: “The
court may require the administrative officials who participated in the decision to give testimony
explaining their action.” 401 U.S. at 420.
4
In any event, the e-mails fail to alter the conclusion that the Corps and the Fish & Wildlife
Service complied with the applicable law.
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mine, which affects 7,513 acres in Hardee County (including more than a thousand
acres of wetlands), significantly impacts the environment and requires an EIS.
The plaintiffs contend that the Corps failed to prepare a “site-specific” EIS, but
the administrative record shows that the Corps prepared a 700-page EIS, which
discusses at length the environmental impact of the proposed SPE mine.5 Although
the EIS discusses four proposed mines (the SPE, Ona, Wingate, and DeSoto mines),
40 C.F.R. § 1508.25 permits an agency to discuss several proposals in a single EIS if
the proposals are “similar” or “closely related.” The Corps concluded that the four
mines “have similarities that provide a basis for evaluating [the four mines’] direct,
indirect, and cumulative environmental impacts in a single Areawide Environmental
Impact Statement” (AR_0250103), and the plaintiffs submit no challenge to that
conclusion.6
B. Unlawfully narrow “need statement”
Before approving a proposal, an agency must consider reasonable alternatives;
the suitability of an alternative depends on the project’s purpose, which the agency
defines. The Corps defined the SPE mine’s purpose as providing 3.37 million metric
tons of phosphatic rock annually for the South Pasture beneficiation plant. According
to the plaintiffs, the Corps’ identification of 3.37 million metric tons as the project’s
5
(AR_0250285–0251005)
6
Also, the plaintiffs argue that the Corps issued the Record of Decision (ROD) before the
EIS, but the Corps approved the ROD on November 10, 2016 (AR_0287182), three years after the
April 2013 EIS and five months after a supplemental assessment in which the Corps concluded that
updated information from Mosaic about the proposed SPE mine warranted no new EIS.
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purpose preordained the rejection of any alternative “that did not guarantee the
extraction of that exact amount of phosphate.” (Doc. 61 at 26)
The plaintiffs show nothing arbitrary and capricious about the Corps’
definition of the project’s need. The South Pasture mine supplies the nearby South
Pasture beneficiation plant with phosphatic rock for the moment, and Mosaic plans
to supply the plant with phosphatic rock from the SPE mine after exhausting the
South Pasture mine. Because the South Pasture beneficiation plant can process 3.5
million metric tons annually, Mosaic aspired to mine that amount. The Corps
initially reduced the SPE mine’s need to 3.43 million metric tons, the South Pasture
mine’s average output from 2010 through 2014. (AR_0275355) The Corps
eventually settled on 3.37 million metric tons annually, which the Corps identified as
the “most conservative value for the project-specific need.” (AR_0275355) In other
words, the administrative record shows that the Corps rationally defined the project’s
need as the amount of phosphatic rock necessary to supply the South Pasture
beneficiation plant.
C. Failure to consider phosphogypsum stacks
Fertilizer producers in Florida often store the weakly radioactive by-product of
fertilizer production in phosphogypsum stacks, which both the EPA and the State of
Florida regulate. The plaintiffs argue that the Corps failed to consider the effects of
the phosphogypsum stacks on the environment and on public health. (Doc. 61 at 23)
The defendants respond persuasively (Doc. 65 at 8–9 and Doc. 65 at 10–11) that the
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Corps’ jurisdiction excludes consideration of phosphogypsum stacks in this instance,
that a phosphogypsum stack is “independent” from the proposed SPE mine,7 and
that the Corps considered the effects of the by-product where required. Again, the
plaintiffs fail to identify anything arbitrary and capricious about the Corps’ treatment
of the phosphogypsum stacks.
D. Failure to select a “least environmentally damaging practicable
alternative”
40 C.F.R. § 230.10 prohibits an agency’s permitting a discharge of dredged or
fill materials if a practicable alternative causes less harm to the environment. Under
40 C.F.R. § 230.10(a)(2), the practicability of an alternative depends partially on the
“cost, existing technology, and logistics” of the alternative. The plaintiffs challenge
as arbitrary and capricious the Corps’ exclusion of an alternative that contemplated
mining phosphatic rock more than ten miles from the South Pasture beneficiation
plant. According to the plaintiffs, the exclusion of an alternative more than ten miles
from the beneficiation plant “predetermined the results of the LEDPA analysis and
precluded analysis of alternatives involving imported rock.” (Doc. 61 at 28)
In the EIS, the Corps cogently explained the impracticability of a
phosphatic-rock mine more than ten miles from the South Pasture beneficiation
plant. (AR_250403–08) To move phosphatic rock from a mine to a beneficiation
7
Although significantly less costly to mine phosphatic rock locally than to import phosphate
mined outside Florida, a fertilizer plant can use imported phosphate to produce fertilizer. Because
Mosaic’s fertilizer plants will produce the by-product even if the SPE mine supplies no phosphate
(that is, a fertilizer plant will use imported phosphate), the Corps’ conclusion that the by-product is
“independent”from the proposed SPE mine is rational.
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plant, the miner mixes the rock with water, which creates a dense “slurry” laden with
natural clays and other materials indigenous to the earth, and the miner pumps the
slurry through a pipeline. The miner must position a million-dollar pump about
every mile along the pipeline to prevent the slurry from “settling to the bottom and
choking the pipeline.” (AR_250404–05) The cost of equipment, maintenance, and
power for the pipeline increases exponentially as the length of the pipeline increases.
Citing the “costs and logistics” of transporting phosphatic rock from a distant mine to
the South Pasture beneficiation plant, Mosaic explained to the Corps (and the Corps
verified) that a mine more than ten miles from the plant would prove commercially
impracticable. The plaintiffs identify nothing arbitrary and capricious about the
Corps’ exclusion of a phosphatic-rock mine more than ten miles from the
beneficiation plant.
Also, the plaintiffs claim that the Corps failed to investigate the practicability
of importing phosphatic rock to supply the South Pasture beneficiation plant.
(Doc. 61 at 28–29) Because of the “significant logistical and cost impediments” to
importing phosphatic rock from outside central Florida, the Corps considered and
rejected as impracticable the importation of phosphatic rock from either another
region of the United States or from abroad. (AR_250391–93) The Corps found that
“all phosphate rock currently mined in the U.S. is being utilized” (AR_250393), and
the Corps concluded that importing phosphatic rock from Africa or South America
decisively and prohibitively increases the cost of producing fertilizer and other
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phosphoric products. That conclusion appears at least rational (and perhaps
obvious). Again, the plaintiffs identify nothing arbitrary and capricious about the
Corps’ conclusion that the costs of, and the risks attendant to, importing rock from
abroad renders importation impracticable in this instance.
E. Failure to consider the reasonably foreseeable detriments of
fertilizer
33 C.F.R. § 320.4(a)(1) requires the Corps to weigh the reasonably foreseeable
benefits of a proposal against the reasonably foreseeable detriments in deciding
whether to issue a CWA permit. Citing three pages of the administrative record
(287152, 287153, and 250785), the plaintiffs claim that the Corps considered the
reasonably foreseeable benefits of fertilizer but failed to consider the reasonably
foreseeable detriments.8 (Doc. 61 at 30) None of the pages supports the plaintiffs’
claims. Although the pages mention the economic benefits of the SPE mine, nothing
on those pages appears to weigh the benefits of the fertilizer industry generally. As
Mosaic observes, “the SPE mine — and not the fertilizer industry as a whole — was
the basis of the project benefits that the Corps identified.” (Doc. 65 at 12)
F. Failure to comply with the “Compensatory Mitigation Rule”
The plaintiffs claim several violations of the Compensatory Mitigation Rule,
40 C.F.R. § 230.93, which requires an applicant to mitigate the unavoidable effects of
8
Rule 56(c)(1) requires that a movant cite “particular parts of materials in the record” to
support an argument. Also, Section 706 requires the judiciary to review either the entire record or
“those parts of [the administrative record] cited by a party.” In this instance, the size of this
administrative record —more than 316,000 pages—precludes the judiciary’s reviewing the entire
record.
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a proposed action through “restoration, enhancement, establishment, and in certain
circumstances preservation” of wetlands. Sometimes called the “no-net-loss rule,”
Section 230.93(f)(1) requires an applicant to offset each acre of affected wetlands by
restoring, enhancing, establishing, or preserving an acre of wetlands.
The plaintiffs argue that the Corps erred by failing to “require a one-to-one
ratio of mitigation through wetland[s] preservation.” (Doc. 61 at 19–20) But the
plaintiffs misconceive and misstate the rule, which provides that restoration “should
generally be the first option considered” by the Corps but imposes no inflexible duty
on an applicant to “restore” or to “preserve” an acre of wetlands in mitigation. As
explained above, 40 C.F.R. § 230.93(a)(2) permits mitigation through “restoration,
enhancement, establishment, and in certain circumstances preservation.” The
plaintiffs acknowledge that the CWA permit requires Mosaic to offset 1,198.17 acres
of affected wetlands through the establishment, preservation, or restoration of 2,526.3
acres of wetlands. (Doc. 61 at n.15) By requiring the mitigation of more than twice
the acreage affected by the proposed SPE mine,9 the permit amply satisfies the
“no-net-loss” requirement.
Also, the plaintiffs argue that the Corps failed to consider the “uncertainties
and risks” inherent in wetlands restoration. But Chapter Five of the EIS describes
the state of scientific knowledge about wetlands reclamation and observes that
advances in wetlands-reclamation practices have rendered recent restoration efforts
9
AR_287415.
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more successful than earlier efforts. And Baltimore Gas & Elec. Co. v. Nat. Res. Def.
Council, 462 U.S. 87, 102–03 (1983), states that a scientific prediction “at the frontiers
of science” commands more deference than another finding of fact by the agency.
Additionally, the plaintiffs argue that the Corps “failed to take into account the
applicant’s record of non-compliance with its existing mitigation at the adjacent
South Pasture Mine.” (Doc. 61 at 21) Although a handful of documents suggest
Mosaic’s infrequent non-compliance with mitigation required by another permit,10
other documents show that Mosaic more often than not successfully mitigated
wetlands impacts.11 In sum, the Corps’ decision to issue the CWA permit appears
rational and consequently merits deference.
G. Failure to hold a public hearing
The plaintiffs argue that the Corps arbitrarily and capriciously denied several
requests for a public hearing. (Doc. 61 at 33) As Fund for Animals explains,
33 C.F.R. § 327.4 affords the Corps discretion in deciding whether to hold a hearing.
85 F.3d at 545. If the Corps concludes that a public hearing would add neither new
information nor a new perspective to the decision-making process, the Corps may
deny the request for a hearing.
The Corps held several public hearings on the proposed SPE mine and
accepted public comments on several occasions. Concluding that another public
10
For example, AR_263031–32.
11
For example, AR_290799–866.
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hearing would merely re-hash issues resolved by the EIS, an addendum to the EIS,
and the supplemental environmental assessment, the Corps denied the requests for a
public hearing. (AR_287128–29) The plaintiffs’ motion for summary judgment
identifies no new information or perspective that warranted another hearing. See
Fund for Animals, 85 F.3d at 546 (finding nothing arbitrary about the Corps’ denial of
a request for public hearing where the administrative record included “voluminous
information” from wildlife organizations and where the plaintiffs failed to identify
any new information that warranted another public hearing).
H. Violations of the Endangered Species Act
Under the ESA, a federal agency must consult with the Secretary of the
Interior12 to determine whether a proposed action likely will jeopardize an
endangered or threatened species or the species’ habitat. To determine whether a
proposed action affects an endangered species, the Fish & Wildlife Service prepares
an “environmental baseline,” which comprises the “past and present impacts of all
Federal, State, or private actions and other human activities in the area” and the
“anticipated impacts of all proposed Federal projects in the action area which are
contemporaneous with the consultation in process.” 50 C.F.R. § 402.02.
12
Under 50 C.F.R. § 402.02, the Secretary delegates the duty to prepare a biological opinion
to the Fish & Wildlife Service.
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The plaintiffs claim several violations of the ESA.13 First, the plaintiffs argue
that the Fish & Wildlife Service’s failure to account for the proposed DeSoto, Ona,
and Wingate East mines impermissibly taints the environmental baseline for the
proposed SPE mine. (Doc. 61 at 36) But 50 C.F.R. § 402.02 requires that the Fish &
Wildlife Service include in the environmental baseline only a proposed federal action
that “ha[s] already undergone formal or early section 7 consultation.” When the
Fish & Wildlife Service issued the biological opinion for the proposed SPE mine on
June 9, 2014, neither the DeSoto nor the Ona mine proposals “ha[d] already
undergone” consultation.14 And the Corps explains that the “action areas of the
relevant species for Wingate East did not overlap with the corresponding action areas
for the SPE project.” (Doc. 66 at 19) The Corps and the Fish & Wildlife Service
rationally excluded the other proposed mines from the environmental baseline of the
proposed SPE mine.
Second, the plaintiffs claim that the Fish & Wildlife Service mis-characterized
the permanent destruction of some unspecified species’ habitat as “temporary.”
(Doc. 61 at 25–26) But the Fish & Wildlife Service observed that Mosaic’s
reclamation efforts would adequately restore the affected land (and in some instances
13
The plaintiffs claim that the EIS “is a ‘programmatic level’ action that requires its own
consultation” (Doc. 61 at 35), but as explained in Section 2A of this order, the EIS specifically
discusses the proposed SPE mine.
14
The plaintiffs claim that the failure to include the other mines in the biological opinion for
the SPE mine “leaves impacts on species entirely unconsidered” (Doc. 61 at 36), but the
environmental baseline for another proposed mine in the same area must include the SPE mine.
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would improve the land’s suitability for habitation by a threatened or endangered
species).15 (FWS_22199, 22200, 22201)
Third, the plaintiffs argue that the Fish & Wildlife Service failed to quantify
“take” for several specifies.16 For example, the plaintiffs claim that the ESA requires
the Fish & Wildlife Service to specify the number of eastern indigo snakes and wood
storks subject to harassment from the construction or operation of the SPE mine. But
the ESA requires the Fish & Wildlife Service to quantify “take” if practicable. See
Miccosukee Tribe of Indians, 566 F.3d at 1274–75. The Fish & Wildlife Service
identified several characteristics of the eastern indigo snake’s habitat and behavior
that preclude quantifying the “take” from harassment. (AR_263527) Also, the Fish
& Wildlife Service found that the wood stork’s usage of the SPE mine “is limited”
and that “harassment would be insignificant or discountable.” (FWS_22255) Again,
the plaintiffs fail to show that the Fish & Wildlife Service or the Corps acted
arbitrarily and capriciously.17
15
Also, the plaintiffs claim that the Fish & Wildlife Service failed to use the “best scientific
and commercial data available” (Doc. 61 at 37–38) but fail to identify any superior data on which
the Fish & Wildlife Service purportedly should have relied.
16
16 U.S.C. § 1532 defines to “take” as to “harass, harm, pursue, hunt, shoot, wound, kill,
trap, capture, or collect, or to attempt to engage in any such conduct.”
17
Also, the plaintiffs argue that the Fish & Wildlife Service failed to set an adequate “trigger”
and that purportedly new information required the Fish & Wildlife Service to update the biological
opinion. The defendants respond (Doc. 65 at 21–24 and Doc. 66 at 22–24) persuasively and refute
those arguments.
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CONCLUSION
For the reasons explained above and for the reasons in the defendants’
responses (Docs. 65 and 66) in opposition to summary judgment, the plaintiffs fail to
show arbitrary and capricious action. The plaintiffs’ motion (Doc. 61) for summary
judgment is DENIED. The defendants’ motions (Docs. 73 and 74) for summary
judgment are GRANTED, and the clerk is directed to enter judgment for the
defendants and against the plaintiffs. After entering judgment, the clerk must close
the case.
ORDERED in Tampa, Florida, on December 14, 2017.
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