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Center for Biological Diversity v. U.S. Army Corps of Engineers

United States District Court, M.D. Florida, Tampa Division

December 14, 2017

U.S. ARMY CORPS OF ENGINEERS, et al., Defendants.



         In 2010, a predecessor of Mosaic Fertilizer applied to the Army Corps of Engineers for a Clean Water Act (CWA) permit and proposed to mine phosphatic rock on several thousand acres in Hardee County. Six years later, the Corps issued a permit for the mine, which the parties call the “South Pasture Extension” (SPE) mine. Suing (Doc. 1) under the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA), the CWA, and the Administrative Procedure Act (APA), and claiming that the Corps acted arbitrarily and capriciously, the plaintiffs request the invalidation of the SPE permit. The plaintiffs move (Doc. 61) for summary judgment and assert a dozen arguments for invalidating the permit. Also, Mosaic and the federal-government defendants move (Docs. 73 and 74) for summary judgment and argue that the permitting process comports with the applicable law.[1]


         Exceedingly deferential to an agency's decision, the judiciary invalidates a decision only if the agency acted arbitrarily and capriciously. Fund for Animals, Inc. v. Rice, 85 F.3d 535, 541-42 (11th Cir. 1996) (applying 5 U.S.C. § 706). An agency acts arbitrarily and capriciously, for example, if the agency relies on an impermissible factor, if the agency fails to consider an important aspect of an issue, if the administrative record belies the agency's explanation for a decision, or if the agency's explanation for a decision “is so implausible that [the decision] could not be ascribed to a difference in view or [] agency expertise.” Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43-44 (1983). The Eleventh Circuit describes Section 706 of the APA as subjecting an agency's decision to a “rationality” review. Miccosukee Tribe of Indians of Florida v. United States, 566 F.3d 1257, 1264 (11th Cir. 2009) (citing Sierra Club v. Van Antwerp, 526 F.3d 1353, 1359-60 (11th Cir. 2009)).


         1. Motion to supplement the administrative record

         The plaintiffs move (Doc. 62) to append to the administrative record a series of e-mails (Doc. 62-5) between Hardee County resident Brooks Armstrong and an employee of the Corps. In the e-mails, Armstrong never mentions by name the proposed SPE mine but expresses several concerns about phosphate mining and the fertilizer industry. The plaintiffs argue for the inclusion of the e-mails in the administrative record “because it appears the agency relied on, or should have relied on, ” the e-mails. (Doc. 62 at 8)

         Section 706 of the APA requires a district court to review the administrative record. Preserve Endangered Areas of Cobb's History, Inc. v. U.S. Army Corps of Eng'rs, 87 F.3d 1242, 1246 (11th Cir. 1996) (“The focal point for judicial review of an administrative agency's action should be the administrative record.”). Because an agency uniquely knows the content of the record the agency considered in deciding an issue, the judiciary defers to an agency's certification of the administrative record and permits supplementing the administrative record only if the plaintiff initially shows “strong [evidence] of bad faith or improper behavior” in the agency's production of the administrative record. Alabama-Tombigbee Rivers Coal. v. Kempthorne, 477 F.3d 1250, 1262 (11th Cir. 2007) (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971)).[2]

         In this action, the custodian of the administrative record for the Corps and for the Fish & Wildlife Service certified under oath that each agency respectively filed the “complete administrative record.” (Docs. 48-1 and 49-1) Because the plaintiffs show nothing approaching the bad faith or improper behavior necessary to supplement the administrative record, [3] the plaintiffs' motion (Doc. 62) to supplement the administrative record is DENIED.[4]

         2. The plaintiffs' motion for summary judgment

         A. Failure to conduct a “site-specific” Environmental Impact Statement (EIS)

         NEPA requires an agency to “take a hard look” at the environmental impact of a proposed action but imposes on the agency no substantive obligation to preserve the environment. Robertson v. Methow Valley Citizens Council, 409 U.S. 332, 350-51 (1989) (“NEPA merely prohibits uninformed - rather than unwise - agency action.”). Under NEPA, a federal action (which includes the issuance of a CWA permit) that “significant[ly]” impacts the environment requires an Environmental Impact Statement (EIS). An agency may prepare an environmental assessment to determine whether a proposed action warrants an EIS. If the environmental assessment finds no “significant” impact on the environment, the agency need not prepare an EIS. Sierra Club v. U.S. Army Corps of Engineers, 295 F.3d 1209, 1214-16 (11th Cir. 2002) (explaining the NEPA procedure). The parties agree that the SPE mine, which affects 7, 513 acres in Hardee County (including more than a thousand acres of wetlands), significantly impacts the environment and requires an EIS.

         The plaintiffs contend that the Corps failed to prepare a “site-specific” EIS, but the administrative record shows that the Corps prepared a 700-page EIS, which discusses at length the environmental impact of the proposed SPE mine.[5] Although the EIS discusses four proposed mines (the SPE, Ona, Wingate, and DeSoto mines), 40 C.F.R. § 1508.25 permits an agency to discuss several proposals in a single EIS if the proposals are “similar” or “closely related.” The Corps concluded that the four mines “have similarities that provide a basis for evaluating [the four mines'] direct, indirect, and cumulative environmental impacts in a single Areawide Environmental Impact Statement” (AR0250103), and the plaintiffs submit no challenge to that conclusion.[6]

         B. Unlawfully narrow “need statement”

         Before approving a proposal, an agency must consider reasonable alternatives; the suitability of an alternative depends on the project's purpose, which the agency defines. The Corps defined the SPE mine's purpose as providing 3.37 million metric tons of phosphatic rock annually for the South Pasture beneficiation plant. According to the plaintiffs, the Corps' identification of 3.37 million metric tons as the project's purpose preordained the rejection of any alternative “that did not guarantee the extraction of that exact amount of phosphate.” (Doc. 61 at 26)

         The plaintiffs show nothing arbitrary and capricious about the Corps' definition of the project's need. The South Pasture mine supplies the nearby South Pasture beneficiation plant with phosphatic rock for the moment, and Mosaic plans to supply the plant with phosphatic rock from the SPE mine after exhausting the South Pasture mine. Because the South Pasture beneficiation plant can process 3.5 million metric tons annually, Mosaic aspired to mine that amount. The Corps initially reduced the SPE mine's need to 3.43 million metric tons, the South Pasture mine's average output from 2010 through 2014. (AR0275355) The Corps eventually settled on 3.37 million metric tons annually, which the Corps identified as the “most conservative value for the project-specific ...

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