Sierra Club v. Van Antwerp
661 F.3d 1147
D.C. Cir.2011Background
- The 2007 Corps permit authorized dredge-and-fill discharges into about 54 acres of wetlands for the Cypress Creek Town Center (CCTC) project near Tampa; mitigation included offsite wetlands and on-site preservation.
- Sierra Club challenged the permit under NEPA, the Clean Water Act (CWA), and the Endangered Species Act (ESA); the district court found NEPA and CWA violations but dismissed ESA claims, granting Sierra Club partial summary judgment and Corps partial victory.
- After unauthorized 2008 discharges, the Corps suspended and later reinstated the permit in 2009 with additional corrective measures; district court reviews followed on cross-appeals.
- On appeal, the court reviews summary-judgment rulings de novo, considering whether the Corps complied with NEPA, CWA practicability, and ESA consultation requirements.
- CCTC proposed a mall with a high parking ratio; the Corps assessed practicability of alternatives under 40 C.F.R. § 230.10(a)(2) and § 230.12(a)(3).
- The court remands on indigo snake habitat fragmentation issues, affirms some aspects of NEPA/ESA handling, and reverses portions of the district court's CWA ruling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| CWA practicability standard applied | Sierra Club argues acquisition cost should be used, lowering costs and making alternatives practicable. | Corps correctly used market value as cost, not acquisition cost, and could consider opportunity cost. | Corps properly used land market value; acquiescence to acquisition cost rejected. |
| Update of financial data for 2009 re-analysis | Sierra Club claims Corps should have updated all value data after 2008 market downturn. | Corps updated ecological plans but not economic data; reasonable to limit to ecological factors. | Reasonable to update ecological data; no requirement to restart entire permit analysis. |
| Adequacy of 8% rate of return and parking considerations | 8% rate may be unsupported, which affects practicable alternatives; parking ratio questioned. | Record supports use of low end of range with modest excess; parking analysis within practicability framework. | Corps' rate-of-return and parking conclusions not arbitrary; supported by record. |
| NEPA analysis and mitigation adequacy | NEPA requires a thorough analysis of significant impacts; lack of unique wetlands or insufficient consideration of fragmentation. | Wetlands are not unique; mitigation sufficiently reduces impact; temporal lag mitigated for wood stork. | NEPA analysis upheld except remand for indigo snake habitat fragmentation discussion. |
| ESA consultation and indigo snake habitat fragmentation | Formal ESA consultation required due to potential effects on indigo snake habitat and fragmentation. | Informal consultation was adequate; mitigation offsets potential adverse effects. | Remand required to address habitat fragmentation; formal consultation issue unresolved. |
Key Cases Cited
- TOMAC v. Norton, 433 F.3d 852 (D.C. Cir. 2006) (NEPA review for FONSI requires four-factor “convincing case” standard)
- Sierra Club v. Peterson, 717 F.2d 1409 (D.C. Cir. 1983) (NEPA context; duty to consider environmental impacts)
- National Resources Defense Council v. Daley, 209 F.3d 747 (D.C. Cir. 2000) (Review standards for agency action under NEPA/CWA)
- Michigan Gambling Opposition v. Kempthorne, 525 F.3d 23 (D.C. Cir. 2008) (Mitigation can reduce environmental impact to minimum)
- Cape Cod Hospital v. Sebelius, 630 F.3d 203 (D.C. Cir. 2011) (ESA/NEPA interplay; reliance on public comment in agency decision)
- City of Sausalito v. O'Neill, 386 F.3d 1186 (9th Cir. 2004) (Biological assessments and mitigation considerations under NEPA/ESA)
- Verizon v. FCC, 535 U.S. 467 (Supreme Court, 2002) (Forward-looking cost considerations in regulatory setting)
- Natural Gas Clearinghouse v. FERC, 108 F.3d 397 (D.C. Cir. 1997) (Treatment of opportunity cost as a form of cost in regulatory analysis)
- Sylvester v. U.S. Army Corps of Engineers, 882 F.2d 407 (9th Cir. 1989) (Limitation on defining project to preclude alternatives)
- Cape Cod Hospital v. Sebelius, 630 F.3d 203 (D.C. Cir. 2011) (Affirming mitigation-based approach to ESA/NEPA decisions)