Kentucky Riverkeeper, Inc. v. Robert Rowlette, Jr.
714 F.3d 402
| 6th Cir. | 2013Background
- Riverkeeper entities sued the Army Corps of Engineers alleging CWA, NEPA, and APA violations in issuing two 2007 nationwide coal-mining waste-discharge permits (NWP 21 and NWP 50).
- The district court granted summary judgment for the Corps; but the permits expired during appeal and Congress-like grandparenting kept some effects alive.
- The court focuses on whether the NEPA cumulative-impacts analysis included present effects of past actions and whether compensatory mitigation was adequately documented.
- The Corps issued environmental Assessments (not EIS) for NEPA purposes and relied on a three-tier, post-issuance mitigation framework and regional reviews to ensure minimal cumulative effects.
- The court concludes the Assessment failed to analyze present effects of past actions and failed to provide sufficient documentation for mitigation, invalidating permit 21 sustentively; live controversy remains due to grandfathered reauthorizations.
- The court stays the ruling for 60 days to permit consideration of remedies and impact on ongoing projects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NEPA requires present effects of past actions in the cumulative-impacts analysis | Riverkeeper argues past actions must be included | Corps relies on Guidance to aggregate past actions | Partially favorable to Riverkeeper; NEPA analysis insufficient for past actions |
| Whether the Corps adequately documented compensatory mitigation to support minimal impacts | Riverkeeper contends no documentation supports the minimal impacts finding | Corps relies on post-issuance mitigation procedures | Inadequate documentation; remand for clarification |
| Whether the case remains a live controversy given permit expirations and grandfathering | Controversy persists due to ongoing reauthorizations | Expired permits moot the action | Controversy remains; we address the live issues and remand accordingly |
Key Cases Cited
- Marsh v. Or. Natural Res. Def. Council, 490 U.S. 360 (1989) (NEPA requires only the necessary process; not outcomes)
- Balt. Gas & Elec. Co. v. Nat’l Res. Def. Council, 462 U.S. 87 (1983) (requirement to adequately consider environmental impacts)
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) (NEPA does not mandate particular results, but requires process)
- Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (agency action reviewed for reasoned decision; arbitrary)
- Sierra Club v. Slater, 120 F.3d 623 (6th Cir. 1997) (mitigation planning considerations under CWA/NEPA)