Sierra Club v. Van Antwerp
661 F.3d 1147
D.C. Cir.2012Background
- 2007: Army Corps permit allowed dredge-and-fill into about 54 acres of wetlands near Tampa for Cypress Creek Town Center (CCTC); required on-site and off-site mitigation totaling ~133 acres.
- Sierra Club (NEPA, CWA, ESA plaintiffs) sued in district court challenging the permit; district court granted Sierra Club on NEPA and CWA claims and upheld Corps on ESA.
- On appeal, the D.C. Circuit reviewed de novo; reversal in part, remand in part, and affirmance in part.
- Key issues centered on: (a) whether the Corps used a permissible cost metric for practicable alternatives under CWA; (b) whether the 2009 revision updated land values; (c) the rate-of-return used to gauge practicability; and (d) adequacy of NEPA analysis and ESA-related concerns about the eastern indigo snake.
- The court remanded for further explanation on the indigo snake fragmentation issue and clarified the Corps’ handling of practicability, mitigation, and consultation effects.
- The overall posture changed the district court’s substantive outcomes: CWA reversed, NEPA reversed except for remand on fragmentation, ESA affirmed except for indigo snake analysis remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| CWA: Were practicable alternatives adequately considered? | Sierra Club | CCTC/Corps | Yes; Corps’ practicability analysis was reasonable. |
| Was updating land value appropriate when reinstating the permit? | Sierra Club | Corps | Reasonable to update ecological data but not necessarily economic data. |
| ESA/NEPA: Must formal consultation occur or address habitat fragmentation for indigo snake? | Sierra Club | Corps; FWS | Remand necessary to address indigo snake fragmentation; formal consultation status left undecided. |
| NEPA: Was the FONSI/EIS decision adequate given mitigation and potential impacts? | Sierra Club | Corps | No full EIS required; mitigation addressed significant concerns; remand on indigo snake. |
Key Cases Cited
- Natural Resources Defense Council v. Daley, 209 F.3d 747 (D.C. Cir. 2000) (standard for reviewing agency compliance under NEPA)
- TOMAC v. Norton, 433 F.3d 852 (D.C. Cir. 2006) (four-factor test for evaluating NEPA's significance and need for an EIS)
- Verizon v. FCC, 535 U.S. 467 (Supreme Court 2002) (use of forward-looking costs and opportunity costs in regulatory analysis)
- Cape Cod Hospital v. Sebelius, 630 F.3d 203 (D.C. Cir. 2011) (agency must respond to relevant public comments in ESA/NEPA-like context)
- Michigan Gambling Opposition v. Kempthorne, 525 F.3d 23 (D.C. Cir. 2008) (mitigation-based approaches can suffice to reduce impact under NEPA)