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Federal District Court Invalidates a Corps of Engineers Nationwide Permit - Again

      Judge Joseph Goodwin of the Southern District of West Virginia has invalidated the Corps of Engineers’ Nationwide Permit (NWP) 21 for the second time. The first ruling occurred in July 2004, with that decision being reversed in November 2005 following a successful Corps and coal industry appeal in OVEC v. Bulen, 429 F.3d 493 (4^th Cir. 2005).As part of its decision, the Fourth Circuit remanded the case to Judge Goodwin for disposition of additional challenges to the NWP 21 that Goodwin had not originally decided. The case was re-briefed and had been awaiting a ruling from Judge Goodwin since.

      Judge Goodwin’s decision of March 31 recognizes the limited scope of the issues that remained following the Fourth Circuit’s 2005 decision, as well as the issues adjudicated in last month’s decision in OVEC v. Corps of Engineers, 556 F.3d 177 ( 4^th Cir. 2009). Nevertheless, the district court invalidated the current version of the 2007 NWP 21 finding that the Corps’ NEPA analysis failed to consider the environmental effects of past actions, which are part of the permit’s cumulative effects. In addition, in evaluating those cumulative effects under both the CWA and NEPA, the Corps has relied upon the success of mitigation to minimize those effects without a rational explanation for that reliance.   

      The opinion is 63 pages, carefully discusses each claim brought by the plaintiffs, and rules against them on most of those claims (see below). On at least three issues, however, the court held that the “Corps’ cumulative impacts analysis with respect to NWP 21 (2007) was inadequate” first because it “failed to consider the continuing impacts of past actions which is a relevant factor for a cumulative impacts analysis.” Second, the Corps decision failed to explain how “compensatory mitigation will attenuate cumulative impacts.” Therefore, the Corps’ decision not to prepare an EIS was arbitrary and capricious; (page 30).

      The first factor was fatal to the Corps’ NEPA analysis because it declined ‘to even consider the effects of past activities based on the fact that the activities are not “continuing in nature”’(page 33). As to the second factor-the Corps’ reliance on mitigation-the court found the Corps’ cumulative impact analysis to be conclusory and wholly reliant upon “an unsupported belief in the success of mitigation measures” (page 36). The court analyzed at length the Corps’ use of compensatory mitigation (pages 37 – 49), but found that to support its conclusion either studies were required to demonstrate its success, or that “policing” of mitigation sites could produce that evidence. The lack of either form of evidence signaled what the court described as the “fundamental problem” with the Corps’ reliance on its process: its failure to provide “any explanation for why it believes mitigation imposed through the case-by-case review of NWP 21 (2007) activities will work to mitigate the permit’s cumulative impacts to a minimal level” (page 43). Accordingly, the Corps’ Finding of No Significant Impact (FONSI) that avoided its duty to prepare an EIS was unsupported (page 50).

 

      For the reasons that the Corps’ cumulative impact analysis was deficient under NEPA, it was equally deficient under the CWA (page 59).

       The court granted most, but not all, of the relief sought by the plaintiffs. It did vacate the NWP 21 and enjoined further authorizations issued pursuant to it in the southern district of West Virginia. It further enjoined “the Corps and the Intervenors from all activities authorized under NWP 21 (2007)” (page 62). This final provision is unclear because only two companies had intervened in the case; all other intervenors were trade associations that do not hold permits. The plaintiffs request for attorneys’ fees was deferred.

      Among the issues decided in favor of the Corps and industry were:

• Claims under the 2002 NWP 21 were moot;
• The case did not restrict the Corps’ use of NWP 49 and NWP 50;
• The Corps reasonably responded to public comments (page 24);
• The scope of the Corps’ NEPA analysis was reasonable; and
• The Corps’ individual impact determination under the CWA was reasonable.

            In a final unusual twist to the case, the Corps of Engineers filed a motion for clarification of three issues on April 2. The Corps asked the Court to clarify that the order affected all companies that had received an authorization under NWP 21, and that the activities enjoined were only those conducted within the waters of the United States. Prior to filing its motion, the Corps had issued a letter to each company that had received an NWP 21 authorization asking for a status report of their activities, and rescinding continued activities in jurisdictional waters. In a response filed on April 6, the plaintiffs agreed with the positions expressed in the Corps’ motion.

       Two days later, on April 8, the Court declined to offer any further guidance as to the meaning and effect of its opinion.

       For further information contact Bob McLusky (304 340-1381) or Blair Gardner (304 340-1146). This article was authored by Blair M. Gardner, Jackson Kelly PLLC. For more information on the author see here.

EPA Makes Proposed Endangerment and Cause or Contribute Findings for Greenhouse Gases under the Clean Air Act

On April 17, 2009, Environmental Protection Agency Administrator Lisa Jackson signed EPA’s “Proposed Endangerment and Cause or Contribute Findings for Greenhouse Gases under the Clean Air Act.” The proposal makes two distinct findings. EPA is proposing to find that the current and projected concentrations of the mix of six key greenhouse gases~-carbon dioxide (C02), methane (CH4), nitrous oxide (N20), hydrofluorocarbons (HFC5), perfluorocarbons (PFC5), and sulfur hexafluoride (SFÔ)—in the atmosphere threaten the public health and welfare of current and future generations. EPA is referring to this as the “endangerment finding.” EPA is further proposing to find that the combined emissions of C02, CH4, N20, and HFCs from new motor vehicles and motor vehicle engines contribute to the atmospheric concentrations of these greenhouse gases and hence to the threat of climate change. EPA is referring to this as the “cause or contribute finding.”

 

These proposals are being made under section 202(a) of the Clean Air Act in response to the United States Supreme Court decision in Massachusetts v. EPA, 549 U.S. 497 (2007). In Massachusetts, the Supreme Court found that greenhouse gases are air pollutants covered by the Clean Air Act. The Court held that EPA must determine whether or not emissions of greenhouse gases from new motor vehicles cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare, or whether the science is too uncertain to make a reasoned decision. In making these decisions, EPA was instructed to follow the language of section 202(a) of the Clean Air Act.

The proposal relies heavily upon the findings and conclusions from recent assessments of the U.S. Climate Change Science Program and the Intergovernmental Panel on Climate Change. Among the key findings cited by EPA’s proposal are:

 

•    Concentrations of greenhouse gases are at unprecedented levels compared to the recent and distant past. These high concentrations are the unambiguous result of human emissions and are very likely the cause of the observed increase in average temperatures and other climatic changes.

 

•    The effects of climate change observed to date and projected to occur in the future include, but are not limited to, more frequent and intense heat waves, more severe wildfires, degraded air quality, more heavy downpours and flooding, increased drought, greater sea level rise, more intense storms, harm to water resources, harm to agriculture, and harm to wildlife and ecosystems. EPA considers these impacts to be effects on public health and welfare within the meaning of the Clean Air Act.

 

•    Emissions of greenhouse gases from on-road vehicles regulated by section 202(a) of the Clean Air Act contribute to the climate change problem. These sources are responsible for 24 percent of total U.S. greenhouse gas emissions, and more than 4 percent of total global greenhouse gas emissions.

 

While this proposal has not yet been published in the Federal Register, EPA has posted a pre­publication copy of the proposal on its website along with a Technical Support Document which discusses the underlying science and greenhouse gas emission data. The public will be able to comment on the proposed endangerment and cause or contribute findings for 60 days following publication in the Federal Register. EPA plans to conduct two public hearings: May 18, 2009, at the EPA Potomac Yard Conference Center, Arlington, VA; and May 21, 2009, at the Bell Harbor International Conference Center in Seattle, WA.

 

This article was co-authored by Kevin McGuire and Mary Beth Naumann, Jackson Kelly PLLC. For more information on the authors see (McGuire) here and (Naumann) here.