CENTER FOR BIOLOGICAL DIVERSITY, MANASOTA-88, INC., PEOPLE FOR PROTECTING PEACE RIVER, INC., SUNCOAST WATERKEEPER, Plaintiffs - Appellants,
U.S. ARMY CORPS OF ENGINEERS, TODD T. SEMONITE, Lt. Gen., in his official capacity as Commanding General and Chief of Engineers of the U.S. Army Corps of Engineers, JASON A. KIRK, Col., in his official capacity as District Commander of the U.S. Army Corps of Engineers, U.S. DEPARTMENT OF THE INTERIOR, DAVID BERNHARDT, in his official capacity as Secretary of the U.S. Department of the Interior, et al., Defendants - Appellees, MOSAIC FERTILIZER, LLC, Intervenor-Defendant-Appellee.
from the United States District Court No.
8:17-cv-00618-SDM-MAP for the Middle District of Florida
ED CARNES, Chief Judge, and MARTIN and ROGERS, [*] Circuit Judges.
ROGERS, CIRCUIT JUDGE
the Clean Water Act, the Army Corps of Engineers regulates
discharges into wetlands that are waters of the United
States, and must consider the direct and indirect
environmental effects of such discharges before issuing a
permit to discharge. Mining for phosphate ore (used to make
phosphoric acid that is in turn used to make fertilizer)
produces dredged and fill material that Mosaic, a fertilizer
manufacturer engaged in phosphate mining, seeks to discharge
into such wetlands. The subsequent process of manufacturing
fertilizer from the mined phosphate ore generates a
radioactive byproduct, phosphogypsum. The primary question in
this case is whether the Corps must take into account certain
environmental effects of producing and storing
phosphogypsum-distant in time and place from the wetland
discharges accompanying the phosphate mining- merely because
phosphogypsum is a byproduct of manufacturing fertilizer from
the mined ore. While it is true that the Corps must consider
indirect environmental effects, the Supreme Court has made
clear that indirect effects must be proximate, and do not
include effects that are insufficiently related to an
agency's action. Dep't of Transp. v. Pub.
Citizen, 541 U.S. 752, 767 (2004). In assessing this
proximate cause limitation, the Corps may reasonably take
into account the fact that the distantly caused effects in
question are subject to independent regulatory schemes.
Id. In granting the discharge permit in this case
without addressing the environmental effects of
phosphogypsum, the Corps relied in part on the fact that
other agencies directly regulate these effects. Such
reasoning in this case by the Corps was not arbitrary,
capricious, or an abuse of discretion. Other bases asserted
for rejecting the Corps' discharge permit also lack
merit, and the district court accordingly properly upheld the
wishes to extend its mining operations within the central
Florida phosphate mining district. Mosaic must obtain mining
permits from the Florida Department of Environmental
Protection ("FDEP"), which, under authority
delegated to it by the EPA, issues permits for phosphate
mining in Florida, with conditions and requirements regarding
pollutant discharge. See 33 U.S.C. §§
1311(a), 1342(a) (describing the National Pollutant Discharge
Elimination System ("NPDES") permit program). In
connection with these planned mining operations, Mosaic seeks
to discharge dredged and fill material into waters of the
United States. This activity is subject to regulation under
the Clean Water Act, which prohibits the discharge of
pollutants into the waters of the United States absent an
appropriate permit. See id. § 1344(a). The
Corps has regulatory authority over the applicable permit
here, the Section 404 permit, to allow the discharge of
dredged or fill material into navigable waters. See
id. § 1344.
and 2011, Mosaic sought four Section 404 permits under the
Clean Water Act to carry out this discharge
activity. The Corps' issuance of a Section 404
permit counts as a major federal action, so the Corps was
required to consider the environmental impact of issuing such
a permit to Mosaic, which it did. As documented in its
500-page report, the Corps considered-among many other
things-direct effects, such as how the discharge of dredged
material into surrounding wetlands might affect the water
quality of those wetlands. See 40 C.F.R. §
1508.8(a). The Corps also considered indirect effects, such
as how that discharge might through stormwater runoff be
carried to and affect the quality of distant waters.
Id. § 1508.8(b).
the Corps' action constitutes a major federal action, the
Corps must also comply with the National Environmental Policy
Act ("NEPA"). NEPA requires federal agencies to
"take a 'hard look' at the potential
environmental consequences of their actions." Ohio
Valley Envt'l Coal v. Aracoma Coal Co., 556 F.3d
177, 191 (4th Cir. 2009) (quoting Robertson v. Methow
Valley Citizens Council, 490 U.S. 332, 350 (1989)).
Under NEPA, agencies are required to produce
environmental-impact statements that account for the direct,
indirect, and cumulative effects of major proposed actions.
Direct effects are "caused by the action and occur at
the same time and place"; indirect effects "are
caused by the action and are later in time or farther removed
in distance, but are still reasonably foreseeable." 40
C.F.R. § 1508.8. By "reasonably foreseeable,"
the regulations mean effects that are "sufficiently
likely to occur that a person of ordinary prudence would take
[them] into account in reaching a decision." See
EarthReports, Inc. v. FERC, 828 F.3d 949, 955 (D.C. Cir.
2016) (quoting Sierra Club v. FERC, 827 F.3d 36, 47
(D.C. Cir. 2016)).
Corps determined that Mosaic's four mining-related
projects had similarities that provided a basis for
evaluating their environmental consequences together in one
area-wide environmental-impact statement. The area-wide
environmental-impact statement served as the project-specific
NEPA analysis for each of the four permit applications. In
2016, the Corps published a draft Section 404 analysis and
public-interest review for one of the proposed projects, the
South Pasture Mine Extension. In doing so, the Corps also
prepared a supplemental environmental assessment focusing on
the South Pasture Mine Extension, to be read in conjunction
with the area-wide environmental-impact statement for
purposes of NEPA. In connection with the proposed Section 404
permit for the South Pasture Mine Extension, the Corps
formally consulted with the Fish and Wildlife Service to
obtain a biological opinion analyzing the potential effects
that the mine extension would have on certain species.
Ultimately, in November 2016, the Corps issued Mosaic a
Section 404 permit for the South Pasture Mine Extension.
Mosaic will be able to discharge dredged and fill material
into the waters of the United States in connection with
mining phosphate at the South Pasture Mine Extension for
subsequent use in fertilizer production. Phosphate mining is
a form of strip mining. After excavating the sand, clay, and
phosphate ore from the site, Mosaic engages in a
beneficiation process to separate the sand and clay from the
valuable phosphate ore. The phosphate ore is then transported
to Mosaic's fertilizer plants for processing into
phosphoric acid. Phosphoric acid in turn is used to produce
fertilizer. But the process of producing phosphoric acid
generates waste in the form of phosphogypsum, a radioactive
byproduct. Approximately five tons of phosphogypsum waste is
created for every ton of useful phosphoric acid produced, for
a total of over 30 million tons generated each year. Because
phosphogypsum contains radioactive uranium and other metals
that the EPA considers to pose a risk to humans and the
environment, it must be stored and left to
"weather" (reduce in radioactivity) in large
open-air "stacks" that are hundreds of acres wide
and hundreds of feet tall. The Corps determined that the
environmental effects of phosphogypsum production and storage
fell outside the scope of its NEPA review. This led Bio
Diversity to file suit.
Diversity's complaint raises several claims under the
Administrative Procedure Act ("APA"), NEPA, and the
Endangered Species Act. The Corps moved for and was granted
summary judgment. The district court found that there was
nothing arbitrary and capricious about the Corps'
determination that phosphogypsum stacks fell outside the
scope of its NEPA analysis. Rather, the district court found
that the Corps rationally treated fertilizer plants and their
phosphogypsum waste as independent from the mining activities
authorized by the Section 404 permit. The district court also
approved the Corps' decision to analyze all four closely
related projects in a single area-wide environmental-impact
statement for NEPA purposes. Finally, the court rejected Bio
Diversity's claim under the Endangered Species Act that
the Corps was required to consult with the Fish and Wildlife
Service before finalizing the area-wide environmental-impact
statement. Bio Diversity appeals.
district court properly determined, it was reasonable for the
Corps to conclude that the environmental effects of
phosphogypsum production and storage fell outside the scope
of its NEPA review. NEPA and its regulations require agencies
to consider only those effects caused by the agency's
action, but phosphogypsum-related effects are caused by the
Corps' Section 404 permit in only the most attenuated
sense. In traditional legal terms, even if the Corps'
permit is a but-for cause of those effects, it is not a
proximate-or legally relevant- cause. Moreover, because the
Corps lacks the authority to regulate phosphogypsum
wholesale, the "rule of reason" instructs that the
Corps need not consider its effects. Finally, the Corps'
scoping decision is consistent with its own regulations, the
Corps' interpretation of which is entitled to deference.
requires agencies to consider the "environmental impact
of the proposed action." 42 U.S.C. § 4332(C)(i).
Here, the Corps' action is the issuance of a Section 404
permit authorizing the discharge of dredged and fill material
into United States waters. The Corps did not issue a mining
permit, nor a permit to produce fertilizer or to store
phosphogypsum-it has no jurisdiction to regulate or authorize
any of that. Having defined the federal action, "[t]o
determine whether [NEPA] requires consideration of a
particular effect, [the court] must look at the relationship
between that effect and the change in the physical
environment caused by the major federal action at
issue." Metro. Edison Co. v. People Against Nuclear
Energy, 460 U.S. 766, 773 (1983). Only the effects
caused by that change in the environment-here, the discharge
into U.S. waters-is relevant under NEPA.
effects are, at most, tenuously caused by the discharge of
dredged and fill material allowed by the Corps' permit.
Phosphogypsum is a byproduct not of dredging and filling-nor
even of phosphate mining or beneficiation-but of fertilizer
production. Further, the fertilizer production takes place
far from and long after the Corps-permitted discharges.
Further still, the EPA and the FDEP-not the Corps-directly
regulate fertilizer plants and phosphogypsum, including the
"design, construction, operation, and maintenance of
phosphogypsum stack systems." See 42 U.S.C.
§ 6901 et seq. Mosaic's fertilizer
production will add to existing gypstacks, as they are
called, but will not result in any new stacks. Even the
nearest fertilizer plants and gypstacks to the South Pasture
Mine Extension receive phosphate rock from many different
sources outside of the Corps' jurisdiction. That means
that gypstacks and the effects of phosphogypsum will continue
to exist so long as, and to the extent that, Florida and the
EPA allow-regardless of the Corps' permitting decision.
Diversity focuses on what it deems a but-for causal
relationship between the Corps' permit and the production
of phosphogypsum. That relationship focuses on the fact that
Mosaic's fertilizer plants, which produce phosphogypsum,
receive phosphate ore from local mines the company also owns.
Bio Diversity therefore contends that "but for" the
Corps' Section 404 permit, phosphogypsum's
environmental effects would be diminished because Mosaic
would not be able to obtain as much phosphate, thereby
reducing its fertilizer (and phosphogypsum byproduct)
production, if it could not discharge dredged and fill
material into U.S. waters, which necessarily accompanies
Mosaic's phosphate mining here. But the happenstance that
Mosaic is the company mining the phosphate and discharging
dredged and fill material into U.S. waters, and also the
company running the fertilizer plant that produces
phosphogypsum, does not change the fact that these events are
insufficiently related to one another. NEPA does not stretch
does not cover all "effects that are 'caused by'
a change in the physical environment in the sense of 'but
for' causation." Metro. Edison Co., 460
U.S. at 774. Instead, NEPA requires a "reasonably close
causal relationship between a change in the physical
environment and the effect at issue," akin to the
"familiar doctrine of proximate cause." See
id. Agencies and courts must "look to the
underlying policies or legislative intent in order to draw a
manageable line between those causal changes that may make an
actor responsible for an effect and those that do not."
Id. at 774 n.7. The Corps reasonably determined that
its Section 404 permit is not a proximate cause of attenuated
phosphogypsum-related effects, and the competing line
suggested by Bio Diversity is anything but manageable.
causal relationship exists between the Corps-approved
discharges and the effects of phosphogypsum, it is not a
reasonably close one. Phosphogypsum is created and stored
miles from the authorized discharges. In addition,
phosphogypsum will only be created so long as Mosaic
continues to operate in the fertilizer industry, the market
continues to demand fertilizer with phosphoric acid, and
phosphogypsum's regulators continue to permit its
creation and storage throughout Florida. Intervening events
such as these ordinarily break the causal chain.
this tenuous causal chain, it was sensible for the Corps to
draw the line at the reaches of its own jurisdiction, leaving
the effects of phosphogypsum to phosphogypsum's
regulators. The Corps' line respects the jurisdictional
boundaries set by Congress and inherent in state-federal
cooperation. The Clean Water Act empowers the Corps to grant
Section 404 permits to "restore and maintain the
chemical, physical, and biological integrity of the
Nation's waters" by regulating "the discharge
of pollutants into the navigable waters." 33 U.S.C.
§ 1251(a)(1). No federal law empowers the Corps to
protect the environment writ large or to regulate phosphate
mining as such, much less fertilizer production or
phosphogypsum stacking. Whatever federal regulatory powers
there are over phosphogypsum-related effects, Congress
granted to the EPA, leaving the bulk of control over
phosphate mining and fertilizer production to the states.
See 42 U.S.C. § 6901 et seq. Requiring
the Corps to enter those regulatory spheres not only offends
congressional design but risks duplicative, incongruous, and
unwise regulation. Because the Corps does not generally
regulate phosphogypsum, it has no subject-matter expertise in
scope of the agency's inquiries must remain manageable if
NEPA's goal of 'ensur[ing] a fully informed and well
considered decision' is to be accomplished."
Metro. Edison Co., 460 U.S. at 776 (quoting
Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S.
519, 558 (1978)). Far from manageable, the new inquiries
required of the Corps would bog down agency action in the
name of duplicative and potentially incoherent regulation.
Corps' decision not to consider phosphogypsum-related
effects is fully justified by the rule of reason announced in
Public Citizen. 541 U.S. at 767. The rule of reason
"ensures that agencies determine whether and to what
extent to prepare an [environmental-impact statement] based
on the usefulness of any new potential information to the
decisionmaking process." Id. Thus, "where
an agency has no ability to prevent a certain effect due to
its limited statutory authority over the relevant actions,
the agency cannot be considered a legally relevant
'cause' of the effect." Id. at 770.
Corps has no categorical statutory authority under the Clean
Water Act to prevent phosphogypsum-related effects apart from
the possibility that they are direct, indirect, or cumulative
effects of the discharges into U.S. waters. This supports the
Corps' decision not to consider those effects. Section
404 of that Act authorizes the Corps to "issue permits .
. . for the discharge of dredged or fill material into the
navigable waters at specified disposal sites." 33 U.S.C.
§ 1344(a). That section further authorizes the Corps to
reject such a permit "whenever [it] determines . . .
that the discharge of such materials into such area will have
an unacceptable adverse effect on municipal water supplies,
shellfish beds and fishery areas (including spawning and
breeding areas), wildlife, or recreational areas."
Id. § 1344(c). The Corps has no categorical
power to refuse a permit for any other reason, such as its
dislike of the applicant's business or downstream effects
not sufficiently caused by "the discharge of such
materials." The Corps accordingly properly relied upon
the fact that phosphogypsum-related effects are primarily
regulated by other agencies in its determination not to
consider those effects, and did so without violating NEPA.
makes good sense in light of the existing regulatory
landscape over phosphogypsum. Mosaic and others already
produce fertilizer in Florida, and gypstacks will exist in
Florida regardless of the Corps' actions. Thus, current
and future phosphogypsum will cause environmental effects
with or without the Corps' permit-subject only to
regulation by Florida and the EPA. On the flip side, Florida
or the EPA could regulate those gypstacks out of existence
even if the Corps were to grant Mosaic its Section 404
permit. Requiring the Corps to consider the effects of
phosphogypsum is not reasonable when it is independent of the
regulators more directly responsible for evaluating those
that the Corps could indirectly mitigate future
phosphogypsum-related effects by conditioning the supply of
phosphate ore does not mean the Corps must consider wielding
its regulatory powers with that ulterior motive in mind. The
rule of reason turns, at least in part, on the agency's
statutory authority, not on what outcomes an agency might
achieve through indirect coercion. If the Corps were required
to consider all effects that it might indirectly police-even
those far from its proper sphere of regulatory authority-its
NEPA review would have to account for every conceivable
environmental effect of fertilizer's use. It is
foreseeable, for instance, that farmers will use Mosaic's
fertilizer to treat their crops and that some fertilizer will
be carried by stormwater runoff into sewers and streams.
Extending Bio Diversity's logic, because the Corps could
indirectly mitigate those effects by denying Mosaic its
Section 404 permit and thereby choking its fertilizer plants
of phosphate, the Corps must consider the environmental
effects of crop fertilization. That cannot be right.
Citizen fatly held that "where an agency has no
ability to prevent a certain effect due to its limited
statutory authority over the relevant actions, the agency
cannot be considered a legally relevant 'cause' of
the effect." 541 U.S. at 770. There, an agency within
the Department of Transportation was tasked with setting
federal safety standards and registration requirements for
Mexican-domiciled commercial vehicles operating in the United
States. See id. at 758-59. In earlier years,
Congress had enacted a moratorium on the agency's
registration of Mexican-domiciled motor carriers. Eventually,
Congress and the President agreed to lift the moratorium-but
only after the agency promulgated new safety and registration
rules. See id. at 760. In the course of that
rulemaking, the agency conducted a NEPA analysis of the
environmental effects of its proposed rules, such as the
effects on air quality caused by the increased number of
roadside inspections its new rules would bring about. See
id. at 761. An environmental group sued, contending that
the agency was required to consider the environmental effects
of the increased number of Mexican-domiciled motor carriers
operating within the U.S. because of the lifting of the
moratorium. That was necessary, according to the
environmental group, because the agency's rulemaking was
a but-for cause of the lifting of the moratorium. See
id. at 765-66.
this "but for" relationship between the
agency's rulemaking and the lifting of the moratorium,
the Supreme Court held that NEPA did not require the agency
to consider effects that it "ha[d] no ability
categorically to prevent." See id. at 768. That
followed because the rule of reason recognizes that it is
pointless to require agencies to consider information they
have no power to act on, or effects they have no power to
prevent. In Public Citizen, the agency had the
statutory authority only to promulgate safety and regulation
standards-not to keep the moratorium in place or modify its
lifting, which only Congress and the President could do.
rule applies in much the same way here. The Corps has no
ability categorically to prevent fertilizer production or the
creation and storage of phosphogypsum. As in Public
Citizen, it is irrelevant that the Corps' action is,
in an attenuated way, a but-for cause of phosphogypsum
production, because Florida and the EPA have primary
authority to regulate or prevent phosphogypsum's creation
and storage. Thus, here too it would be pointless to require
the Corps to gather and examine information regarding effects
that it has no authority to prevent.
true that the agency in Public Citizen had no
discretion to refuse registration (absent the moratorium) to
a motor carrier that complied with its regulations. But that
is beside the point. Individual registration was not at
issue; rulemaking was, and the agency did have discretion to
set safety and registration standards. The Supreme Court
rejected the idea that the agency could indirectly mitigate
the environmental effects of lifting the moratorium by (i)
not promulgating any new rules or (ii) setting burdensome
standards so that fewer motor carriers could meet them and
operate in the U.S. See id. at 765-68. The Court
held that it was not enough that the agency could, in fact,
mitigate those effects, when the agency was not statutorily
authorized to base its decision on those ancillary effects.
See id. The same is true here: The Corps could, in
fact, mitigate the effects of phosphogypsum by rejecting the
Section 404 permit and choking off Mosaic's supply of
phosphate ore. But the Corps is not statutorily authorized to
base its permitting decision on environmental effects that
are so indirectly caused by its action.
Corps could conceivably hinge its permitting decision on the
effects of phosphogypsum, but only by ignoring the Clean
Water Act's text and misapplying its implementing
regulations. The Clean Water Act does not give the Corps the
discretion to deny a Section 404 permit for any reason of its
choosing. Although the first subsection of § 1344 says
the Corps "may issue permits . . . for the discharge of
dredged or fill material into the navigable waters at
specified disposal sites," 33 U.S.C. § 1344(a), the
Act also provides that the Corps
is authorized to deny or restrict the use of any defined area
for specification . . . as a disposal site [i.e., deny a
permit], whenever [it] determines . . . that the discharge of
such materials into such area will have an unacceptable
adverse effect on municipal water supplies, shellfish beds
and fishery areas (including spawning and breeding areas),
wildlife, or recreational areas.
Id. § 1344(c). Read together, those provisions
limit the Corps' discretion to grant or issue permits.
The Corps may not deny a permit for any reason under the sun-
including its distaste for later conduct the applicant will
engage in-but only if the allowed discharge will
directly, indirectly, or cumulatively have an unacceptable
environmental effect. And the scope of that analysis is
bounded by proximate cause and the rule of reason. Because
the Corps cannot deny a permit because of phosphogypsum
effects, which are beyond the scope of § 1344(c), the
Corps was not required to consider those effects. See
Pub. Citizen, 541 U.S. at 767-68. Thus, as in Public
Citizen, the Corps' Section 404 permit for the
discharge of dredged material is not a proximate cause of the
effects of Mosaic's fertilizer production, and such
effects need not be considered under NEPA.
same is true under the Clean Water Act's implementing
regulations. Those regulations require the Corps to conduct a
public-interest review before granting a permit, but that
obligation is not an authorization to deny a permit based on
the environmental impacts of non-agency action. In the first
place, regulations cannot contradict their animating statutes
or manufacture additional agency power. See, e.g.,
FDA v. Brown & Williamson Tobacco Corp., 529
U.S. 120, 125-26 (2000); Manhattan Gen. Equip. Co. v.
Comm'r of Internal Revenue, 297 U.S. 129, 134-35
(1936). Because the statute authorizes the Corps to deny a
permit only if the discharge itself will have an unacceptable
environmental impact, the regulations cannot empower the
Corps to deny permits for any other reason- including
downstream phosphogypsum-related effects of fertilizer
regulations also focus the Corps' review on the effects
of its action. The regulations provide that "[t]he
decision whether to issue a permit will be based on an
evaluation of the probable impacts, including cumulative
impacts, of the proposed activity and its intended
use on the public interest." 33 C.F.R. §
320.4(a)(1) (emphasis added). Again, the "proposed
activity" is the proposed federal action that triggers
NEPA-here, the issuance of the discharge permit. Obligating
the Corps to consider whether the discharge of dredged and
fill material is in the public interest, is not the same as
authorizing the Corps to consider whether fertilizer
production and its consequences are in the public interest.
an alternative, unbounded view of the public-interest review
would be to appoint the Corps de facto environmental-policy
czar. Rather than consider whether the Corps' own action
is in the public interest, that broader view would have the
Corps consider whether fertilizer production and use is
really worth the cost. And that could be just the beginning.
The next time the Corps is asked to approve a section of a
gas pipeline running through a wetland, would the Corps be
required to consider whether the country's reliance on
fossil fuels is really in the public interest?
D.C. Circuit's outlier opinion in Sabal Trail
provides little support for Bio Diversity's argument.
See Sierra Club v. FERC (Sabal Trail), 867
F.3d 1357 (D.C. Cir. 2017). There, FERC authorized the
construction and operation of a pipeline network that would
feed gas directly to power plants that would burn the gas.
See id. at 1363. The Sierra Club sued and argued
that FERC failed to consider the greenhouse-gas effects of
burning that gas at the power plants. The D.C. Circuit, over
a powerful dissent, held that FERC was required to consider
those downstream environmental effects.
Trail is both questionable and distinguishable. First,
the causal relationship between the agency action and the
putative downstream effect was much closer there than it is
here. FERC authorized a pipeline that would pump gas directly
into a power plant to be burned, causing greenhouse-gas
emissions. The Corps, on the other hand, approved only the
discharge of dredged and fill material-one small piece of
Mosaic's mining operations, which extracts a sand, clay,
and phosphate ore mixture, which is supplied to beneficiation
plants where the phosphate ore is separated out, which is
then transported to fertilizer plants to make phosphoric
acid, which results in phosphogypsyum byproduct, and the
phosphoric acid is used to produce fertilizer. The
phosphogypsum produced as a byproduct when phosphate ore is
processed into phosphoric acid is only then stored around the
state of Florida and liable to produce environmental effects.
That articulated causal chain bears little resemblance to the
two-link version in Sabal Trail.
the scope of the agency's statutory authority in
Sabal Trail was much broader than the Corps'
here, and the rule of reason hinges, in any given case, on
the scope of the agency's statutory authority because an
agency need not consider an effect it has no statutory
authority to prevent. See Pub. Citizen, 541 U.S. at
770. In Sabal Trail, FERC was statutorily empowered
to deny a pipeline certificate on the ground that its
construction and operation "is [not] required by the
present or future public convenience and necessity."
See 15 U.S.C. § 717f(e). The Sabal
Trail court understood that to mean "FERC could
deny a pipeline certificate on the ground that the pipeline
would be too harmful to the environment." See Sabal
Trail, 867 F.3d at 1373. But here, as discussed, the
Corps has no broad statutory authority to deny a discharge
permit based on the public convenience and necessity of the
operation of Mosaic's fertilizer plants. See 33
U.S.C. § 1344(c).
Sabal Trail is at odds with earlier D.C. Circuit
cases correctly holding that "the occurrence of a
downstream environmental effect, contingent upon the issuance
of a license from another agency with the sole authority to
authorize the source of those downstream effects, cannot be
attributed to the [agency]; its actions 'cannot be
considered a legally relevant cause of the effect for NEPA
purposes.'" Sabal Trail, 867 F.3d at 1381
(Brown, J., concurring in part and dissenting in part)
(quoting Sierra Club v. FERC (Freeport),
827 F.3d 36, 47 (D.C. Cir. 2016) and citing Sierra Club
v. FERC (Sabine Pass), 827 F.3d 59, 68 (D.C.
Cir. 2016) and EarthReports, Inc. v. FERC, 828 F.3d
949, 952 (D.C. Cir. 2016)).
the legal analysis in Sabal Trail is questionable at
best. It fails to take seriously the rule of reason announced
in Public Citizen or to account for the untenable
consequences of its decision. The Sabal Trail court
narrowly focused on the reasonable foreseeability of the
downstream effects, as understood colloquially, while
breezing past other statutory limits and precedents-such as