KENTUCKY RIVERKEEPER, INC.; Kentuckians for the Commonwealth, Inc.; Kentucky Waterways Alliance, Inc., Plaintiffs-Appellants, v. Robert A. ROWLETTE, Jr., et al., Defendants, Carl A. Strock, Lieutenant General, Chief of Engineers and Commander of the U.S. Army Corps of Engineers; Raymond G. Midkiff, Colonel, District Engineer, U.S. Army Corps of Engineers, Louisville District; Dana R. Hurst, Colonel, District Engineer, U.S. Army Corps of Engineers, Huntington District; Steven J. Roehmhildt, Colonel, District Engineer, U.S. Army Corps of Engineers, Nashville District, Defendants-Appellees.
No. 11-6083
United States Court of Appeals, Sixth Circuit
Decided and Filed: April 22, 2013
Argued: Oct. 4, 2012.
Before: SILER and COOK, Circuit Judges; STEEH, District Judge.*
OPINION
COOK, Circuit Judge.
Plaintiffs-Appellants Kentucky Riverkeeper, Inc., Kentucky Waterways Alliance, Inc., and Kentuckians for the Commonwealth, Inc. (collectively “Riverkeeper”) sued the Army Corps of Engineers alleging violations of the Clean Water Act (CWA),
I.
A. The Nationwide Permits: NWP 21 and NWP 50
The Clean Water Act requires the Army Corps of Engineers to issue permits for mining activities that discharge dredged or fill material into United States waterways.
In 2007, the Corps issued two nationwide general permits (hereinafter the “nationwide permits”): permit 21 and permit 50. Permit 21 authorized surface coal-mining operations to discharge dredged and fill material into waters of the United States (i.e., streams); permit 50 allowed underground coal-mining operations to do the same. Before issuing each permit, the Corps conducted a public notice-and-comment period and completed required environmental analyses, including a cumulative-impacts analysis. Each cumulative-impacts analysis projected the permits’ respective environmental impacts before determining that compensatory mitigation would reduce adverse impacts to a minimal level. The Corps disclosed its analyses and findings in each nationwide permit‘s Environmental Assessment (hereinafter “the Assessment(s)”), prepared for NEPA purposes in lieu of an environmental impact statement. The nationwide permits became effective on March 19, 2007.
Projects seeking authorization under the nationwide permits faced two additional layers of Corps oversight. First, a proposal needed to pass muster under any regional “public interest” requirements imposed by the Corps’ division engineers in their discretion.
The nationwide permits expired on March 18, 2012, but the Corps extended the permits until March 18, 2013 for projects started before the 2012 expiration date. 77 Fed.Reg. 10,184, 10,184 (Feb. 21, 2012). Additionally, in order to “provide an equitable and less burdensome transition” and avoid a “significant hardship” for coal operators, id. at 10,209, the Corps granted a five-year accommodation (until 2017) to activities authorized under permit 21 “without applying the new limits imposed [by 2012 amendments to the permit],” id. at 10,184. The Corps estimates that approximately 70 surface coal-mining activities authorized under permit 21 qualify for this five-year reauthorization. Id. at 10,209.
B. District Court Proceedings
Riverkeeper sued the Corps, alleging that the cumulative-impacts analyses prepared for the Assessments authorizing the nationwide permits violated the CWA, NEPA, and the APA.1 Riverkeeper ad-
The district court rejected Hurst‘s reasoning and granted summary judgment to the Corps, finding that the Corps adequately reviewed the present effects of past nationwide permit authorizations and properly relied on compensatory mitigation to ensure minimal cumulative impacts. Riverkeeper timely appeals, advancing the same arguments presented to the district court. We have jurisdiction under
II.
Before we consider the merits of Riverkeeper‘s claims, we address the Corps’ argument that the nationwide permits’ expiration renders Riverkeeper‘s claims moot.
“It is a basic principle of Article III that a justiciable case or controversy must remain extant at all stages of review, not merely at the time the complaint is filed.” Decker v. Nw. Envtl. Def. Ctr., 133 S.Ct. 1326, 1335, 185 L.Ed.2d 447 (2013). “A case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party,” id., and a change in circumstances that renders a court unable to grant petitioners meaningful relief may prudentially moot an action, see Greenbaum v. EPA, 370 F.3d 527, 534-35 (6th Cir.2004). The Corps argues that the March 18, 2012 expiration of the nationwide permits prudentially moots Riverkeeper‘s appeal. But when an expired permit‘s conditions remain in effect, so too does the case and controversy. In Kescoli v. Babbitt, the Ninth Circuit distinguished challenges to agency action that “had already begun and ended” from challenges where the issuance of a renewal permit sustains the controversy. 101 F.3d 1304, 1309 (9th Cir.1996). If “the same [challenged] condition [remains] in effect and continues to govern [defendant‘s] coal mining operations[,] ... [t]he same controversy exists after the issuance of the renewal permit.” Id.
Though the permits here expired, the Corps grandfathered mining activities authorized by permit 21 for five years, allowing project reauthorization “without applying the new limits imposed on [2012 permit 21].” 77 Fed.Reg. at 10,184 (titled “Grandfather Provision for Expiring NWPs”). These reauthorizations, effective until 2017, allow projects authorized in reliance on permit 21‘s challenged cumulative-impacts analysis to evade considerably tighter restrictions on surface coal mining. See id. It matters not that “the 2012 versions of [permits] 21 and 50 are signifi-
We do not consider Riverkeeper‘s challenges to permit 50, however, because projects authorized under permit 50 were extended only for one year, until March 18, 2013. 77 Fed.Reg. at 10,184. Because the Corps no longer relies on that now-expired permit‘s challenged cumulative-impacts analysis, we analyze only the live controversy concerning projects reauthorized under permit 21.
III.
A. Standard of Review
We review the district court‘s summary judgment rulings de novo and the Corps’ permitting decisions under the APA‘s arbitrary and capricious standard. Ky. Waterways Alliance v. Johnson, 540 F.3d 466, 473 (6th Cir.2008). Summary judgment is proper if the record shows that no genuine dispute exists as to any material fact, and the movant is entitled to judgment as a matter of law.
relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
“Judicial review of NEPA compliance is limited in scope.” Cmtys., Inc. v. Busey, 956 F.2d 619, 623 (6th Cir.1992). We “ensure that the agency has adequately considered and disclosed the environmental impacts of its actions and that its decision is not arbitrary or capricious.” Balt. Gas & Elec. Co. v. Nat‘l Res. Def. Council, 462 U.S. 87, 97-98, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983); see also Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) (explaining that NEPA “does not mandate particular results, but simply prescribes the necessary process”). In reviewing challenges to NEPA compliance, we give “substantial deference” to the regulations promulgated by the Council on Environmental Quality (CEQ), the federal agency established to fill in the gaps of NEPA‘s regulatory scheme. Marsh v. Or. Natural Res. Council, 490 U.S. 360, 372, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989).
B. The NEPA Regulations & The Cumulative Impact of Past Actions
NEPA employs a “set of ‘action-forcing’ procedures that require agencies to take a ‘hard look at environmental consequences.’” Robertson, 490 U.S. at 350 (internal quotation marks omitted) (citing Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976)). One of these action-forcing procedures requires federal agencies to prepare an environmental impact statement for all “major Federal actions significantly affecting the quality of the human environment.”
The NEPA regulations provide that environmental assessments “[s]hall include brief discussions of the ... environmental impacts of the proposed action and alternatives,”
The Corps concedes that these regulations required it to assess the impact of past actions, but cites a CEQ advisory memorandum for the proposition that it could satisfy this obligation by considering past actions’ impact “in the aggregate.” (Appellee Br. at 31-32 (citing Council on Environmental Quality, Guidance on the Consideration of Past Actions in Cumulative Effects Analysis (2005) [hereinafter “Guidance”] at 2-3, available at http://energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/G-CEQ-PastActsCumulEffects.pdf).) The Ninth Circuit has already adopted this view from the Guidance, see League of Wilderness Defenders-Blue Mountains Biodiversity Project v. U.S. Forest Serv., 549 F.3d 1211, 1217 (9th Cir.2008), and we have no qualms agreeing. The Corps’ argument runs aground, however, because the Assessment failed to identify any impact—aggregate or otherwise—of past actions.
Not so, says the Corps, because the Assessment reflects its consideration of the “national environmental baseline,” a term it uses to refer to a compilation of statistical surveys regarding available aquatic natural resources throughout the United States. Indeed, pages 12 to 17 of the Assessment include portions of various national surveys in discussing available resources, but the Assessment‘s discussion of these surveys makes no mention of the impact of prior actions. In fact, section 4.0 of the Assessment, titled “Environmental Consequences,” expressly disclaims consideration of past impacts: “Only the reasonably foreseeable direct or indirect effects [of the proposed nationwide permit] are included in the environmental assessment.” (NWP 21 Decision Doc. at 20.)3 Given this statement, we may not infer that surveys discussing the availability of national resources reflect the Corps’ consideration of the cumulative impact of past
The Corps provides a nonresponsive argument with its three-tier review process for individual activities seeking approval under permit 21. The Corps notes that its divisions and districts will add regional conditions that enhance environmental protections and address local concerns. It maintains that its division engineers “consider ... the present effects of past actions in greater detail than is possible for the nationwide analysis.” But these additional assessments occur after the reauthorization of the nationwide permit—itself an alternative to an individual permitting system—and therefore presume that the Assessment satisfied the NEPA regulations’ prerequisites for reauthorization. Though the Corps argues that “the nationwide level of review is only the preliminary stage” of review, it acknowledges that the relevant NEPA regulations,
Despite conceding its obligation under the NEPA regulations to consider past impacts in the aggregate (Appellee Br. at 39-40), the Corps appears to read the CEQ Guidance as overriding the § 1508.7 requirement to consider past impacts. Cf.
The Guidance itself belies such a narrow reading. Issued by CEQ‘s Chairman in 2005, it states in pertinent part:
The environmental analysis required under NEPA is forward-looking, in that it focuses on the potential impacts of the proposed action that an agency is considering. Thus, review of past actions is required to the extent that this review informs agency decisionmaking regarding the proposed action. This can occur in two ways:
First, the effects of past actions may warrant consideration in the analysis of the cumulative effects of a proposal for agency action. CEQ interprets NEPA and CEQ‘S NEPA regulations on cumulative effects as requiring analysis and a concise description of the identifiable present effects of past actions to the extent that they are relevant and useful in analyzing whether the reasonably foreseeable effects of the agency proposal for action and its alternatives may have a continuing, additive and significant relationship to those effects. In determining what information is necessary for a cumulative effects analysis, agencies should use scoping to focus on the extent to which information is “relevant to reasonably foreseeable significant adverse impacts,” is “essential to a reasoned choice among alternatives,” and can be obtained without exorbitant cost.
40 CFR 1502.22 . Based on scoping, agencies have discretion to determine whether, and to what extent, information about the specific nature, design,or present effects of a past action is useful for the agency‘s analysis of the effects of a proposal for agency action and its reasonable alternatives. Agencies are not required to list or analyze the effects of individual past actions unless such information is necessary to describe the cumulative effect of all past actions combined. Agencies retain substantial discretion as to the extent of such inquiry and the appropriate level of explanation. Marsh v. Or. Natural Res. Council, 490 U.S. 360, 376-77 [109 S.Ct. 1851, 104 L.Ed.2d 377] (1989). Generally, agencies can conduct an adequate cumulative effects analysis by focusing on the current aggregate effects of past actions without delving into the historical details of individual past actions.
Second, experience with and information about past direct and indirect effects of individual past actions may also be useful in illuminating or predicting the direct and indirect effects of a proposed action. However, these effects of past actions may have no cumulative relationship to the effects of the proposed action. Therefore, agencies should clearly distinguish analysis of direct and indirect effects based on information about past actions from a cumulative effects analysis of past actions.
Guidance at 1-2.
In our view, two aspects stand out. First, though reviewing agencies retain considerable discretion to determine the “scop[e]” and “relevan[ce]” of past actions, and may “focus[] on the current aggregate effects of past actions without delving into individual past actions,” this discretion coincides with their obligation to provide “a concise description of the identifiable present effects of past actions to the extent that they are relevant and useful in analyzing whether the reasonably foreseeable effects of the agency proposal for action and its alternatives may have a continuing, additive and significant relationship to those effects.” Id. at 1 (emphasis added). An environmental assessment that omits consideration of past impacts, followed by a conclusory suggestion that past impacts did not matter, cannot be in conformance. This is especially true where the reviewing agency reauthorizes a nationwide permit involving the same type of mining activities that cause the same type of environmental impacts. Second, the Guidance instructs the reviewing agency to “distinguish” the use of past impacts to forecast future impacts from the use of past impacts to assess cumulative impacts.
The Corps did not do this. It used past impacts to forecast future impacts, but not to assess cumulative impacts. While taking advantage of the more lenient environmental-assessment method (instead of the intensive environmental-impact-statement method), the Corps short-circuited the “cumulative impact” analysis by confining its review to an estimate of future impacts. The Corps reasonably relied on data regarding past impacts to project future impacts, but it failed to combine the two to gauge the cumulative impact of reauthorizing permit 21. Its Assessment offered no explanation for this shortcoming. Such limited review not only avoids the NEPA regulation‘s definition of “cumulative impact,” but also the ordinary meaning of “cumulative.” See Webster‘s II New College Dictionary 275 (2d ed. 2001) (defining “cumulative” as “[e]nlarging or increasing by successive addition”).
The Corps directs us to its final decision reissuing permit 21. See 72 Fed.Reg. 11,092 (Mar. 12, 2007). There, the Corps responded to objections that the Assessment neglected past-impacts analysis, id. at 11,094-96, by (i) invoking the CEQ Guidance‘s instruction “that agencies look at the present effects of past actions that
The district court recognized that the Corps “did not provide a detailed explanation for its belief that [past permit 21 activities] would not have a continuing effect,” but excused this because the “Corps’ path can reasonably be discerned.” Ky. Riverkeeper, 800 F.Supp.2d at 868 (citing Motor Vehicle Mfrs. Ass‘n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). The district court primarily relied on the Corps’ final-decision statements, as well as the Corps’ assurance that compensatory mitigation would offset past environmental impacts. Id. at 867-69. These justifications do not satisfy the Corps’ obligation to include a cumulative-impact analysis where the Assessment completely neglects past impacts from that calculus.
In simultaneously arguing that it did and did not need to consider past impacts (Appellee Br. at 31-32 vs. final-decision statements and Hurst position), and that it did and did not do so (the “baseline” argument vs. the final-decision statements), the Corps stakes no position. This much is clear from the administrative record: the Assessment omitted the present effects of past actions from its cumulative-impact analysis, as required by
C. Permit 21‘s Reliance on Compensatory Mitigation
We find similarly troubling the Corps’ defense to Riverkeeper‘s compensatory-mitigation claims under the CWA and NEPA. Citing CWA regulations, Riverkeeper specifically faults the Corps’ failure to provide “analysis or documentation” for the Assessment‘s determination that compensatory mitigation will ensure cumulatively minimal adverse effects. (Appellant Br. at 27-28 (citing
Under the CWA, the issuance of a nationwide permit hinges on the reviewing agency‘s finding that a proposal has only a “minimal cumulative adverse effect on the environment.”
Using the current trend, approximately 1,085 activities could be authorized over a five year period until [permit 21] expires, resulting in impacts to approximately 320 acres of waters of the United States, including jurisdictional wetlands. Approximately 540 acres of compensatory mitigation would be required to offset those impacts. The required compensatory mitigation will attenuate cumulative impacts on the Nation‘s aquatic resources, so that the net effects on the aquatic environment resulting from the activities authorized by [permit 21] will be minimal.
(NWP 21 Decision Doc. at 22.) Absent from this discussion is any mention of the Corps’ factual underpinnings for this determination. Both in its briefing and at oral argument, the Corps relied on its procedures overseeing individual projects’ success in mitigating environmental impacts. (Appellee Br. at 52-53; Oral Arg. at 30:40-32:36.)5 Yet these post-issuance mechanisms do not explain how the Corps arrived at its preissuance minimal cumulative-impact findings. The Corps fails to make this showing despite Hurst‘s earlier adverse decision on the point. See Hurst, 604 F.Supp.2d at 887 (deeming “conclusory” the Corps’ “unsupported belief in the success of mitigation measures” and explaining that the Corps’ “‘mere listing’ of mitigation measures and processes, without any analysis, cannot support a cumulative impacts determination”).
Citing our decision in Sierra Club v. Slater, 120 F.3d 623, 636 (6th Cir.1997), the district court noted that “it is not necessary to have a final, detailed mitigation plan prior to the issuance of [nationwide permit],” and held that a “permit conditioned on the future implementation of a mitigation plan complies with the requirements of the CWA.” Ky. Riverkeeper, 800 F.Supp.2d at 876; see also Bulen, 429 F.3d at 502 (“[S]ection 404(e) does not unambiguously forbid the Corps from making the minimal-environmental-impacting” minimal environmental impacts. While this tool conceivably could have supported a specific mitigation finding in its determination of minimal cumulative impacts, it did not do so here. The Corps admits that its use of the Protocol in permit 21‘s Supplemental Decision Document extended no further than prospectively requiring individual Kentucky-based projects to “ensure minimal impacts.” (Appellee Br. at 18; see also NWP 21 Supp. Decision Doc. at 2.))
We acknowledge that the Corps may rely on post-issuance mitigation procedures to minimize environmental impacts, but in making a minimal-cumulative-impact finding, it must, at a minimum, provide some documented information supporting that finding.
D. Conclusion
Though we generally give greatest deference to an agency‘s “complex scientific determination[s] within its area of special expertise,” Balt. Gas & Elec. Co., 462 U.S. at 103, we may not excuse an agency‘s failure to follow the procedures required by duly promulgated regulations, see, e.g., Motor Vehicle Mfrs. Ass‘n, 463 U.S. at 43. During oral argument, the Corps repeatedly objected to the feasibility of Riverkeeper‘s demands. This policy argument misses the point. After opting for streamlined nationwide permitting, the Corps took the easier path of preparing an environmental assessment instead of an environmental impact statement. Having done so, it needed to follow the applicable CWA and NEPA regulations by documenting its assessment of environmental impacts and examining past impacts, respectively. Failing these regulatory prerequisites, the Corps leaves us with nothing more than its say-so that it meets CWA and NEPA standards. We may not supply a reasoned basis for the agency‘s action that the agency itself has not given. See SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947).
We hereby invalidate permit 21 as arbitrary and capricious,
IV.
We REVERSE and REMAND for further proceedings consistent with this opinion. We STAY this ruling for 60 days as explained.