Black Warrior Riverkeeper, Inc., et al v. U.S. Army Corps of Engineers, et al

Plaintiffs Black Warrior Riverkeeper and Defenders of Wildlife appealed a district court’s grant of final summary judgment to the U.S. Army Corps of Engineers, as well as to the Alabama Coal Association and several other intervenor mining companies. Riverkeeper challenges the 2012 version of Nationwide Permit 21 (“NWP 21”), a general permit that allowed surface coal mining operations to discharge dredged or fill materials into navigable waters. Riverkeeper argued that the Corps arbitrarily and capriciously found that NWP 21 would have no more than minimal environmental effects, in violation of both the Clean Water Act and the National Environmental Policy Act. After deciding Riverkeeper has standing to sue, the district court held that Riverkeeper’s lawsuit was, nonetheless, barred by the equitable doctrine of laches. After thorough review, however, the Eleventh Circuit concluded that the intervenors have shown neither inexcusable delay on the part of Riverkeeper nor prejudice resulting from Riverkeeper’s alleged delay. To the extent that Riverkeeper lagged in filing suit, its delay was slight and excused by its need to adequately investigate and prepare its claims in this complex case. Moreover, the Intervenors’ modest showing of harm, stated only at the highest order of abstraction, does not outweigh the potential environmental benefits of allowing Riverkeeper to proceed. As for the merits of Riverkeeper’s environmental claims, the district court concluded, after thorough deliberation, that the Corps’ determinations that NWP 21 would have only “minimal cumulative adverse effect” on the environment, pursuant to the Clean Water Act, and “no significant impact” on the environment, pursuant to the National Environmental Policy Act, were neither arbitrary nor capricious. However, literally on the eve of oral argument before the Eleventh Circuit, the Corps admitted that it had underestimated the acreage of waters that would be affected by the projects authorized under the permit. In the face of this change in facts, the Eleventh Circuit ordered the parties to provide supplemental briefing on the implications of the Corps’ error. The Corps then conceded that the district court’s decision must be reversed and the matter remanded to the Corps for further consideration based on a more accurate assessment of the potential impacts of NWP 21. The Eleventh Circuit agreed. View "Black Warrior Riverkeeper, Inc., et al v. U.S. Army Corps of Engineers, et al" on Justia Law