By Leslie Z. Walker
In White Tanks v. Strock (9th Cir. 2009) 563 F.3d 1033, the Ninth Circuit held the Army Corps of Engineers (“USACE”) had improperly confined the geographic scope of its environmental analysis under the National Environmental Policy Act (42 U.S.C. § 4321 et seq.) (“NEPA”) in issuing a permit under Section 404 of the Clean Water Act (33 U.S.C. § 1251 et seq.) (“CWA”). The Court held that because the feasibility of the whole project depends upon the Corps granting a Section 404 permit, the entire project is within the purview of the Corps and thus subject to environmental review under NEPA.
Pulte Homes and 10,000 West, LLC (“developers”) sought a Section 404 permit in conjunction with their construction of a 60,000 person development on a 10,105 acre site traversed by approximately 787 acres of washes. While 643 acres of the washes were located within a river floodplain and would not be affected by the development, the remaining 144 acres were dispersed throughout the development site, and 26.8 of those acres would be filled. The CWA requires a permit for the discharge of dredged or fill material into navigable waters of the United States (Section 404 permit, 22 U.S.C. § 1344(a)). There is no question that a Section 404 permit was necessary in this case.
The issuing of a Section 404 permit is a major federal action for NEPA purposes. Thus, the Corps was required to determine whether the permit would significantly affect the quality of the human environment. If so, it was required to do an environmental impact study (“EIS”). Despite urging from the EPA and FWS that an EIS was appropriate, the Corps conducted only an environmental assessment (“EA”), thereafter issuing a finding of no significant impact.
White Tanks Concerned Citizens (“Citizen Group”) challenged this conclusion. The Corps claimed the Citizen Group did not have standing because it had not sufficiently alleged injury in fact. The trial court granted summary judgment on the merits for the Corps. The Ninth Circuit reviewed the trial court decision, first considering the Citizen Group’s standing argument, and then considering the geographic scope of USACE’s NEPA analysis.
An organization has standing to sue on behalf of its members if:
“(a) its members would otherwise have standing to sue in their own right;
(b) the interests it seeks to protect are germane to the organization’s purposes;and
(c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” (Ecological Rights Foundation v. Pacific Lumber Company (9th Cir. 2000) 230 F.3d 1141, 1147.)
In environmental cases, the injury must be to the plaintiff, not the environment. Plaintiff asserted standing via an affidavit of the organization’s director. The affidavit described the organization’s purpose and explained that several of its members used the area in question for hiking, horseback riding and other activities. From this information, the court inferred that the members must have recreational and aesthetic interests in preserving the undeveloped nature of the area in question, and those interests were served by membership in the Citizens Group. According to the Court, this was the very sort of tangible, continuing connection to the location that is required for standing. From the affidavit’s assertion that the members regularly use the area in question for recreational and aesthetic purposes, the Court concluded that the development threatens imminent and concrete harm to the interests of its members and thus, had sufficiently shown their standing.
Scope of the USACE’s Environmental Analysis
The Court determined the adequacy of the USACE’ environmental analysis by comparing it to two prior cases: Save Our Sonoran v. Flowers (9th Cir. 2005) 408 F.3d 1113 (“SOS”) and Wetlands Action Network v. U.S. Army Corps of Engineers (9th Cir. 2000) 222 F.3d 1105 (“Wetlands”).
The Court explained that in SOS, it held that the USACE had to consider the entire scope the development because the pattern of washes made avoiding them in the course of development impossible. Thus, it was the issuance of the 404 permit that made the development possible.
In Wetlands, the Court held that the USACE had properly confined its environmental review to the wetlands and was not required to study the environmental effects to the whole of the project because even without the 404 Permit, a major portion of the development project could proceed.
The district court in this case concluded that the development was more similar to the Wetlands development because the majority of the project could proceed without the 404 permit.
The Ninth Circuit disagreed, finding that according to the project’s application, without the fill permit, there would not be a single, cohesive community, as was the intent of the project. Rather, the development would contain individual pods with restricted access and limited development. Furthermore, the developers had stated that a denial of the permit would force the abandonment of the project.
The developer attempted to argue that the percentage of acreage of the overall project that would have to be filled was less than the five percent at issue in SOS and thus was insufficient to trigger the expanded scope. The court said that the percentage of water is not what matters, but whether the water must be affected to fulfill the project’s goals.
Finally, the court noted the great weight given to the EPA and FWS’ opinion that a full environmental review should be done, and remanded the case to the district court to enjoin the Section 404 permit until the USACE completed the appropriate environmental analysis. Notably, the court did not indicate whether that should be in the form of an EA or EIS.
White Tanks seems to imply that the Ninth Circuit is willing to infer standing when sufficient facts are presented. Furthermore, if a 404 permit is necessary for any part of a project, and the project is infeasible financially or otherwise without the portion of the project for which the permit is necessary, then the appropriate scope of the environmental analysis for the purposes of NEPA appears to be the entire Project.
Leslie Z. Walker is an associate at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.