The recent decision by the 11th Circuit Court of Appeals in Center for Biological Diversity v US Army Corps of Engineers, 2019 WL 5690619 (Nov. 4, 2019) concluded that impacts of an action that are “at most, tenuously caused” are not impacts that must be considered in preparing an environmental impact statement. The case arose out of an application by a fertilizer manufacturer for a permit to discharge dredge and fill material from its mining operation into wetlands. Because such a permit is a major federal action, the National Environmental Policy Act (NEPA) requires the agency to take a hard look at the consequences of the action before an approval. In objecting to the permit, environmental groups argued that the NEPA review must include a discussion of environmental impacts of producing and storing physogypsum, a radioactive biproduct of the fertilizer manufacturing process. The theory of the objectors is that the permit to discharge into the wetlands allows the mining operation to proceed; the mining operation leads to the processing of the mined material into fertilizer, which produces the phsogypsum. Physogypsum is, thus, an impact of the permit to discharge mining waste.
The Court concluded that physogypsum was not an impact that needed to be considered, reasoning (1) that to determine which impacts need to be considered, the analysis is much like causation in a tort case, where only the proximate cause is considered; and (2) impacts that could not be prevented by denying the permit need not be examined. Regarding causation, the Court found that the permit was a “but for” cause of the physogypsum, but not a proximate cause. To be a proximate cause (i.e. a legally relevant cause) it would need to be more direct. Effects that indirect and take place far from and long after the permitted activity need not be considered. More importantly, the Court said that the impacts that need to be addressed are the impacts of the action being permitted – the discharge to the wetlands – not the impacts of the business operation that is being facilitated by the permit. Physogypsum, is the result of fertilizer manufacturing process, not a result of the discharge to the wetlands.
The Court also stated that any impact that could not be prevented by denial of the permit is not an impact of the permit. The Army Corps does not regulate the manufacturing process or the disposal and handling of physogypsum. The Army Corps does not have the power to prevent the fertilizer manufacturing process. If the result could occur without regard to the Army Corps action, it is not a result of the Army Corp action, or at least not a result that needs to be considered. The Court also examined the argument that the impacts of physogypsum could be mitigated by preventing the mining process, but concluded that the Army Corps did not have broad environmental protection obligations.
The Court noted that the DC Circuit decision in Sierra Club v FERC, 667 F3d 1357 (DC Cir, 2017), the closest case to suggesting that these indirect impacts need to be considered, was both questionable and distinguishable. FERC authorized construction of a natural gas pipeline and Sierra Club sued to require them to examine the greenhouse gas impacts of the use of the natural gas at a powerplant. The Court distinguished that case first by noting that the impacts in Sierra Club were more direct because fewer links in the causal chain were needed to go from pipeline to greenhouse gasses. The court also noted that what made the pipeline impacts are more direct because the pipeline brought gas and the result of the delivery of the gas, was burning, resulting in greenhouse gasses. In contrast, the discharge of fill material did not cause the manufacturing process that resulted in physogypsum.
Determining the scope of an impact statement can be tricky because one wants it broad enough to avoid challenge, but at the same time, there need to be limits. The 11th Circuit has tried to define some of those limits, by concluding that indirect impacts that are distant in time and location need not be examined, especially when those impacts may occur without regard to whether the action at issue is permitted.