941 F.3d 1288
11th Cir.2019Background
- Mosaic sought Section 404 Clean Water Act permits to discharge dredged/fill material for phosphate mining (South Pasture Mine Extension); the Corps prepared an area-wide EIS and a site-specific supplemental EA and issued a permit.
- Phosphate ore mined in Florida is sent to fertilizer plants that produce phosphoric acid; that manufacturing produces phosphogypsum (radioactive waste) at roughly 5 tons of waste per ton of acid, stored in large open-air "gypstacks."
- BioDiversity sued, challenging the Corps’ NEPA analysis (arguing the Corps should have considered phosphogypsum production/storage as a reasonably foreseeable indirect effect), the adequacy of the supplemental site review, and whether the area-wide EIS required separate ESA §7 consultation.
- The district court granted summary judgment for the Corps; the Eleventh Circuit majority affirmed, holding phosphogypsum effects were too attenuated/proximate to require NEPA analysis and that the Corps reasonably relied on the regulatory framework and its own regulations; a concurring/dissenting judge would have required consideration of phosphogypsum.
- The majority applied the proximate-cause rule and the "rule of reason" from Supreme Court precedent, and deferred to the Corps’ reasonable interpretation of its NEPA-implementation regulations (Auer/Kisor framework).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Corps had to consider phosphogypsum production/storage as an indirect NEPA effect | Phosphogypsum was a reasonably foreseeable, proximate indirect effect of permitting mining and thus must be analyzed | Effects are too attenuated in time/space and contingent on independent events; other agencies (EPA/Florida) primarily regulate phosphogypsum; Corps lacks authority to prevent it | Corps: no duty to consider phosphogypsum—too remote; reliance on proximate-cause and rule of reason upheld |
| Whether the area-wide EIS plus a supplemental EA satisfied NEPA (tiering/supplementation) | Supplemental EA was substantively insufficient; new circumstances, application changes, mitigation and Payne Creek impacts required a new EIS | Area-wide EIS appropriately tiered; supplemental EA addressed site-specific changes and no significant new circumstances warranted a new EIS | Corps complied with NEPA; tiering and supplemental EA were adequate |
| Whether the area-wide EIS itself constituted an "agency action" requiring separate ESA §7 consultation | Area-wide programmatic EIS was a programmatic action that should have triggered separate §7 consultation | EIS is preparatory to discrete permitting actions; Corps consulted on the specific §404 permit later | No separate ESA consultation required for the area-wide EIS; consultation on the permit satisfied §7 |
| Whether the Corps’ interpretation of its NEPA/permit regulations (scope of review) merits deference | Corps improperly weighed benefits of fertilizer production without examining linked environmental harms (violating its own regs) | Regulations are ambiguous; Corps reasonably limited scope to activities over which it had control and responsibility | Court deferred to Corps’ reasonable interpretation (Auer/Kisor) and upheld its scoping decision |
Key Cases Cited
- Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752 (2004) (NEPA requires a proximate or legally relevant causal link and allows the "rule of reason" when an agency cannot prevent an effect)
- Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766 (1983) (NEPA limits: effects must be reasonably closely related to the federal action; proximate-cause analogy)
- Marsh v. Or. Natl. Res. Council, 490 U.S. 360 (1989) (agencies need not endlessly supplement EISs; supplementation governed by "rule of reason")
- Auer v. Robbins, 519 U.S. 452 (1997) (deference to an agency’s fair and reasonable interpretation of its own regulations)
- Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (clarifies/limits Auer deference; courts must ensure deference prerequisites are met)
- Aracoma Coal Co. v. U.S. Army Corps of Eng’rs, 556 F.3d 177 (4th Cir. 2009) (Corps not required to expand NEPA review to broad downstream effects of mining)
- Kentuckians for the Commonwealth v. U.S. Army Corps of Eng’rs, 746 F.3d 698 (6th Cir. 2014) (similar holding limiting Corps’ NEPA scope for surface-mining projects)
- Sierra Club v. FERC (Sabal Trail), 867 F.3d 1357 (D.C. Cir. 2017) (D.C. Cir. required downstream effects analysis for pipeline; distinguished by the Eleventh Circuit on causation and statutory authority)