Amicus Curiae Brief — Wetlands Action Network v. United States Army Corps of Engineers

a

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Supreme Cou, US.

2) FILED

No. 00-1692 ‘90M 11 2001

OFFICE OF THE CLERK

In The

Supreme Court of the United States

*

WETLANDS ACTION NETWORK, et al.,

Petitioners,

U.S. ARMY CORPS OF ENGINEERS, et al.,

Respondents.

S

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

+

BRIEF OF AMICUS CURIAE

THE SIERRA CLUB

IN SUPPORT OF WETLANDS ACTION NETWORK’S

AND CALIFORNIA PUBLIC INTEREST RESEARCH

GROUP’S PETITION FOR A WRIT OF CERTIORARI

¢

RICHARD R. WIEBE

Counsel of Record

2140 Ninth Avenue

San Francisco, CA 94116

Telephone: (415) 665-8793

Counsel for Amicus Curiae

The Sierra Club

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

(As stated in the Petition for Certiorari)

Whether the decision of the court of appeals uphold-

ing the Corps of Engineers’ decision not to prepare an

Environmental Impact Statement under the National

Environmental Policy Act was erroneous because the

court of appeals determined, contrary to decisions of this

Court and other circuits, that the Corps did not need to

consider, in making this determination, significant envi-

ronmental impacts that will be caused by portions of the

same project which are outside the Corps’ regulatory

jurisdiction.

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TABLE OF CONTENTS

Page

QUESTION PRESENTA oxc00ssdeenedisbeecucsedss i

TABLE OF CORNER ie. sos scacasducscerssuveeteans ii

TABLE OF AUT IRUIREEGID <5 sscnssepecossecessene: iii

INTEREST OF AMUUS 656i Riss ede eieisiecics ers 1

REASONS WHY CERTIORARI SHOULD BE

GRANTED . oo ..s00i sa dhausaede Opens bevasseeues 2

A. NEPA And Its Implementing Regulations

Require Federal Agencies To Examine Both

The Direct And Indirect Environmental Conse-

quences OF Thelt ACUI oxic nccesszcscaecs: 2

B. The Ninth Circuit Has Worked A Substantial

Change To Existing NEPA Law In This Case By

Creating A Novel “Regulatory Jurisdiction”

Limitation To NEPA’s Scope That Is Contrary

Fo The Satis. ..06 os ccinvisceeemaescunbees ones 6

C. Under The Ninth Circuit’s Novel Approach,

The Destruction Of Many Wetlands Will

Escape Full Scrutiny Under NEPA........... 11

D. The Adverse Environmental Consequences Of

Many Other Federal Actions Will Also Escape

Full NEPA Scrutiny Under The Ninth Circuit's

ADDPORER «. «sis 0c echan eae merks Neen a bees ss 14

CONCLUSEI ....s45aenencaseneeetaeedanera ss 15

cre Bee

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TABLE OF AUTHORITIES

CASES

Alpine Lakes Protective Soc. v. U.S. Forest Service,

838 F.Supp. 478 (W.D. Wash. 1993).............

Davis v. Coleman, 521 F.2d 661 (9th Cir. 1975) ....

Friends of the Earth v. U.S. Army Corps of Engineers,

109 F.Supp.2d 30 (D.D.C. 2000) ................

Fritiofson v. Alexander, 772 F.2d 1225 (5th Cir. 1985) .

Marsh v. Oregon Natural Resources Council, 490 U.S.

CSG Cinch ovata cancnbcnk cada vaaresacaen

Robertson v. Methow Valley Citizens Council, 490

i es cia ceek rata cde teas ean oa eA eek

Sierra Club v. Marsh, 769 F.2d 868 (1st Cir. 1985) .

STATUTES

EE ESC Nal Gn Woe Cw bene eee oe ered enae 9

bs oak 2 re Tere er rer ery

ee SiN ecdadavbans bske nee aeen 4

Ns keke ak dente ob Me cae kaesuk es

rn. Wen bad ks tues be pees ws ade as

REGULATIONS

ES Se Mb vdeo vo wa Ve dnecen tess deewnaees

Ce ERs rere rere rere eee ree

eS er eer rrr? Tee TTT cr ere

OTHER AUTHORITIES

SavE SAN Francisco Bay ASSOCIATION, PROTECTING

Ta Ey rn

Page

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——_ 2

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TABLE OF AUTHORITIES - Continued

Page

U.S. DEPARTMENT OF THE INTERIOR, WETLANDS OF THE

Unitep STATES — THEIR EXTENT AND THEIR VALUE TO

WATERFOWL AND OTHER WitpuiFE (1956) ............. 12

U.S. Fish & Wivpuire Service, STATUS AND TRENDS OF

WETLANDS IN THE CONTERMINOUS UNITED STATES

ye ge ren peer prea ry ae ere 11, 12

INTEREST OF AMICUS

Amicus the Sierra Club is a national nonprofit orga-

nization of approximately 600,000 members dedicated to

exploring, enjoying, and protecting the wild places of the

Earth; to practicing and promoting the responsible use of

the Earth’s ecosystems and resources; and to educating

and enlisting humanity to protect and restore the quality

of the natural and human environment. The Sierra Club’s

concerns encompass the protection and preservation of

wetlands and other crucial habitats. The Sierra Club’s

concerns also extend to enforcement of the National Envi-

ronmental Policy Act (NEPA) to ensure that the federal

government properly considers all the foreseeable envi-

ronmental consequences, direct and indirect, of its pro-

posed actions.

The Club’s particular interest in this case stems from

the United States Court of Appeals for the Ninth Circuit's

novel and unsupported restrictions on the scope of envi-

ronmental scrutiny under NEPA. By holding that an

agency need only consider those environmental conse-

quences that are the direct result of the agency’s actions,

and not any that are the result of private actions made

possible only by the agency action but outside its juris-

diction, the Ninth Circuit’s new rule will cause many

adverse but indirect environmental consequences of fed-

eral actions to escape review entirely. It will thereby

thwart NEPA’s goal of informed agency decisionmaking,

not only in wetlands cases but in many others categories

of federal actions affecting the environment.!

>

REASONS WHY CERTIORARI

SHOULD BE GRANTED

A. NEPA And Its Implementing Regulations Require

Federal Agencies To Examine Both The Direct And

Indirect Environmental Consequences Of Their

Actions

The National Environmenta! Policy Act of 1969

(“NEPA,” 42 U.S.C. § 4321 et seq.) represented a monu-

mental shift in the process of federal decisionmaking. It

was the political recognition of a fundamental ecological

reality: the natural systems of the Earth are interdepen-

dent and interconnected, and when our actions touch any

part of that web of life they touch the whole. As Congress

said in enacting NEPA, it was “recognizing the profound

impact of man’s activity on the interrelations of all com-

ponents of the natural environment.” 42 U.S.C. § 4331(a).

NEPA instructs federal decisionmakers to take account of

this ecological reality by examining the environmental

consequences of their proposed actions before acting,

rather than discovering those consequences only after

' All parties have consented to amicus the Sierra Club’s

filing of this brief. Pursuant to Supreme Court Rule 37.6, the

Sierra Club states: No person or entity other than amicus the

Sierra Club, its members, and its counsel made any monetary

contribution to the preparation or submission of the brief.

Counsel for petitioners Wetlands Action Network and

California Public Interest Research Group reviewed a draft

version of this brief but did not author any portion of it.

they have occurred: “Simply by focusing the agency’s

attention on the environmental consequences of a pro-

posed project, NEPA ensures that important effects will

not be overlooked or underestimated only to be discov-

ered after resources have been committed or the die

otherwise cast.” Robertson v. Methow Valley Citizens Coun-

cil, 490 U.S. 332, 349 (1989).

To this end, NEPA requires federal agencies to exam-

ine and report on the “environmental impact” of pro-

posed major federal actions. 42 U.S.C. § 4322(2)(C). The

Council on Environmental Quality (CEQ) has issued reg-

ulations implementing this command. These regulations

create a two-stage process for environmental analysis

under NEPA. 40 C.F.R. § 1501.4.

First, the agency performs an initial environmental

assessment (EA) to determine whether the possible envi-

ronmental consequences of the proposed action are sig-

nificant enough to justify a full-scale environmental

impact statement (EIS). Depending on the results of the

EA, either the agency goes on to prepare an EIS or, if the

possible environmental consequences are so insubstantial

that an EIS is not called for, it makes a “finding of no

significant impact” (“FONSI”). In this way, “[t]he sweep-

ing policy goals announced in . . . NEPA are thus realized

through a set of action-forcing procedures that require

that agencies take a hard look at environmental conse-

quences.” Robertson v. Methow Valley Citizens Council, 490

U.S. at 350 (internal quotation marks omitted). NEPA

removes “the blinders to adverse environmental effects.”

Marsh v. Oregon Natural Resources Council, 490 U.S. 360,

371 (1989).

Importantly, the CEQ regulations implementing

NEPA instruct that in considering the environmental

effects of its actions a federal agency must consider not

only an action’s direct effects but also any indirect or

cumulative effects. 40 C.F.R. §§ 1508.7, 1508.8. The defini-

tions of indirect and cumulative effects each encompass

effects caused by actions taken by private parties. 40

C.F.R. § 1508.7 (cumulative effects included those flowing

from other actions “regardless of what agency (Federal or

non-Federal) or person undertakes such other actions”);

40 C.FR. § 1508.8 (“Indirect effects may include growth

inducing effects and other effects related to induced

changes in the pattern of land use, population density or

growth rate, and related effects on air and water and

other natural systems, including ecosystems.”).

Inevitably, in applying NEPA and the CEQ regula-

tions the question arises how proximate must a possible

environmental consequence be to merit consideration

either at the EA stage or at the EIS stage. Over the more

than 30 years of NEPA’s existence, federal agencies and

courts have in the vast majority of instances used a

practical and common-sense approach to answer this

question. They have looked, as the CEQ regulations and

the purpose of NEPA require, not only to the immediate

and direct consequences of the proposed action but also

to its indirect and cumulative consequences. Applying

this requirement has commonly led agencies and courts

to conclude that where private activities are not directly

subject to federal regulation but nevertheless dependent

upon and intertwined with the proposed federal action,

the consequences of those private unregulated activities

are indirect or secondary consequences of the federal

action and must be considered in order to gain a true and

complete picture of the environmental consequences that

will follow from the proposed federal action. See, e.g.,

Fritiofson v. Alexander, 772 F.2d 1225, 1245-49 (Sth Cir.

1985) (Corps of Engineers violated NEPA in issuing wet-

lands destruction permit without considering cumulative

impacts from other development projects); Sierra Club v.

Marsh, 769 F.2d 868, 877-79 (1st Cir. 1985) (where pro-

posed federal action was approval of a causeway and

port facility on an island, NEPA required consideration of

indirect environmental consequences of other, federally-

unregulated private development that would likely occur

on the island if causeway and port were built); Davis v.

Coleman, 521 F.2d 661, 674-76 (9th Cir. 1975) (NEPA

required consideration of environmental consequences of

private development that would occur if highway inter-

change were built); Friends of the Earth v. U.S. Army Corps

of Engineers, 109 F.Supp.2d 30, 40-42 (D.D.C. 2000) (Corps

of Engineers violated NEPA in issuing permit for floating

casinos without considering indirect and cumulative

impacts of additional upland growth and development

that presence of casinos would induce); Alpine Lakes Pro-

tective Soc. v. U.S. Forest Service, 838 F.Supp. 478, 482-483

(W.D. Wash. 1993) (Forest Service project to build road

across national forest to making timber on private lands

accessible for logging could only be properly evaluated

under NEPA by considering environmental consequences

of the private logging that the road would make possi-

ble); accord, Robertson v. Methow Valley Citizens Council,

490 U.S. at 339 (approving EIS that, “as required by

Council on Environmental Quality (CEQ) regulations, see

40 CFR 1502.16(b) (1987), addressed ‘off-site impacts that

each alternative might have on community facilities,

socio-economic and other environmental conditions’ ”).

B. The Ninth Circuit Has Worked A Substantial

Change To Existing NEPA Law In This Case By

Creating A Novel “Regulatory Jurisdiction” Limita-

tion To NEPA’s Scope That Is Contrary To The Stat-

ute

Notwithstanding these requirements of NEPA, the

Ninth Circuit ruled in this case that an agency’s duty to

scrutinize the environmental consequences of a proposed

federal action is limited to only the direct and immediate

consequences of the action. The developer here sought a

permit under section 404 of the Clean Water Act (33

U.S.C. § 1344) from the Corps of Engineers to destroy

wetlands in order to build Phase I of its mixed-use com-

mercial and residential development project. The devel-

oper will destroy half the wetlands that are the subject of

the permit in order to build a detention and treatment

basin for polluted surface water runoff that will be cre-

ated by its development of the uplands portion of the

project. 8 AR 3728. Without the development of the

uplands and the resulting creation of polluted runoff,

there would be no reason or justification for filling the

wetlands or creating the basin. The developer will

destroy the other half of the wetlands in order to build

the mixed-use development upon them; if the wetlands

were preserved it would lose crucial linkages in its street

grid system. 8 AR 3731. This destruction likewise is inex-

tricably intertwined with the project as a whole, and will

occur only because of the project.

—————€, _ , os

Thus, destruction of the wetlands benefits the entire

Phase I project and has no independent purpose or utility

apart from serving the Phase I project, as the district

court found and the Ninth Circuit affirmed. In the district

court’s words:

The mixed-use development could not proceed

in the manner it was planned without the filling

of the wetlands as authorized under the Per-

mit. . .. [T]he wetland fill would not be justified

in the absence of the mixed-use develop-

ment... . [{] . . . [T]he entire project [is] func-

tionally interdependent. The fill of wetlands as

provided for under the Permit and the

overall development . . . are inextricably intert-

wined ....

~

Pet. Cert. App. 64a-65a (opinion of the district court); see

also id. at 21a (“The district court’s determination that the

project would not be able to proceed as planned without

the permit and that the filling of the wetlands would not

occur without the project is correct.” [opinion of the

Ninth Circuit]). Had the Corps denied the wetlands

destruction permit, the developer would have had to

change its plans significantly to preserve the wetlands

and to deal with the polluted surface water runoff in

some other fashion.

The Ninth Circuit ruled that, notwithstanding the

benefits the wetlands destruction provides to the entire

Phase I development, the Corps was not required to

consider any environmental consequences of Phase I but

only the direct consequences of the loss of the wetlands

because only the wetlands were within the Corps’ regula-

tory jurisdiction. On that basis, it upheld the Corps’

decision not to prepare an EIS, concluding that the direct

effects of the wetlands loss alone were too insignificant to

justify an EIS.

The narrow, straitjacketed approach of the Ninth Cir-

cuit in this case marks a major, unwarranted, and disas-

trous departure from the settled pattern of agency and

judicial practice under NEPA. The Ninth Circuit ignored

NEPA’s command that federal agencies fully consider all

the possible environmental consequences of a proposed

action. Instead, it read into that broad mandate the

unprecedented restriction that an agency need not con-

sider any environmental consequence that does not

directly stem from an action within the agency’s jurisdic-

tion.

As the Petition for Certiorari correctly explains in

greater depth (at pp. 18-20), the Ninth Circuit’s novel

approach is an extreme and erroneous deviation from

preexisting NEPA law. Nothing in NEPA, the CEQ regula-

tions implementing it, or prior case law supports the

notion that an agency’s scrutiny need extend no further

than the boundaries of its jurisdiction. To the contrary,

those authorities all make clear that NEPA’s environmen-

tal-consequences inquiry is a practical, real-world inquiry

that focuses not on the formalities of agency jurisdictional

boundaries but on the realities of how an agency’s actions

may possibly affect the environment, whether directly or

indirectly through private actions linked to the agency’s

action.

The Ninth Circuit’s error sprang from its conceptual

confusion about the difference between a federal agency’s

regulatory jurisdiction and its much broader duty under

NEPA to examine the possible environmental conse-

quences of its actions. The Ninth Circuit concluded that if

the Corps were to consider the environmental conse-

quences of all of Phase I of the development project it

would somehow be asserting jurisdiction over all the

activities of Phase I, jurisdiction which it lacks. (Pet. Cert.

App. 22a-23a.)

The Ninth Circuit apparently reasoned backwards

from the principle that an agency must consider the direct

consequences of actions taken within its jurisdiction to

the conclusion that an agency cannot consider any other

consequences, including the consequences of private

actions made possible by the agency’s action but lying

outside the agency’s jurisdiction. This reasoning is, of

course, fallacious. Although a federal agency must con-

sider the direct environmental consequences of its

actions, it does not follow that the agency is prohibited

from looking at the indirect consequences of its action,

including indirect consequences whose immediate cause

is an action taken by a private party as a result of the

agency action. Nor does it follow that simply by studying

those indirect consequences the agency is asserting juris-

diction over them.

Here, for example, there is nothing inconsistent

between the Corps’ consideration of all the direct and

indirect environmental consequences of Phase I of the

developer’s project, which has as a necessary and integral

element the wetlands destruction the Corps has autho-

rized, and a recognition that the Corps does not have

jurisdiction over all the actions the developer proposes as

10

part of Phase I. Examining all the environmental conse-

quences of Phase I — and not just the immediate conse-

quences of the wetlands destruction - is not the

equivalent of asserting jurisdiction over all the causes of

those consequences.

More than just fallacious, the Ninth Circuit’s reason-

ing is contrary to the commands of NEPA. NEPA was

intended precisely to expand the field of vision of federal

agencies to encompass all the environmental conse-

quences of their actions, not just those consequences that

are direct and immediate. NEPA draws no distinction,

and it would be irrational to imply one, between direct

consequences whose immediate cause is an action within

an agency’s jurisdiction and indirect consequences whose

chain of causation includes not only the federal action but

private actions taken in response to the federal action. A

decision regarding the proposed action cannot be an

informed one unless it fully considers both.

The novel approach taken by the Corps in this case

and approved by the Ninth Circuit will have drastic

adverse consequences, not only for thousands of wet-

lands in the vast expanse of the Ninth Circuit but also for

a multitude of ecosystems nationwide if it is applied in

other circuits and by other agencies. In many instances it

will return us to the pre-NEPA world of federal decision-

making, when decisionmakers routinely and myopically

ignored any environmental consequences beyond the

boundaries of the decision before them, no matter how

certain it was that those consequences would flow from

the decision.

a

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C. Under The Ninth Circuit’s Novel Approach, The

Destruction Of Many Wetlands Will Escape Full

Scrutiny Under NEPA

As this case demonstrates, under the Ninth Circuit's

approach the destruction of wetlands in many instances

will no longer trigger an EIS, no matter how great the

adverse environmental consequences of the project for

which they are being destroyed. Wetlands are some of the

most diverse and productive habitats on Earth. They host

rich communities of plants and animals. Wetlands-depen-

dent species include not only those which spend their

entire life-cycles in wetlands but also those dependent on

wetlands for only a particular life stage or activity. Many

species rely on wetlands as a juvenile nursery, as a breed-

ing or nesting ground, as a hunting or foraging ground,

or as a migratory or seasonal resting ground. U.S. Fiso &

Witpuire Service, STATUS AND TRENDS OF WETLANDS IN THE

ConTERMINOUS UNITED States 1986 to 1997, at 10-11, 36

(2000) [hereafter WetLaNps Status AND TRENDs].

Wetlands are also one of the most extensively

degraded categories of landforms in the nation. It is

estimated that at the beginning of European settlement

there were 221 million acres of wetlands in the area that

became the 48 contiguous United States, and that at pre-

sent only 105 million acres remain - less than half the

original amount. WeTLANDs STATUS AND TRENDS, 9. Some

regions have suffered even greater wetlands losses: Cali-

fornia, the state where this case originated, has lost over

90 per cent of its original wetlands. Zedler Decl., { 2; Save

SAN Francisco Bay AssociaTION, ProtectING Locat WET-

LANDS 1 (2000). Traditionally, wetlands abutting water-

ways have possessed great value for commercial and

12

industrial purposes, and many wetlands have been filled

for these purposes. Boston, New York, Washington, Chi-

cago, New Orleans, Seattle, San Francisco, and many of

our other major cities and metropolitan areas contain

large tracts of urbanized land that were once wetlands.

Vast areas of wetlands have also been drained or filled for

agricultural and silvicultural purposes. Much of this wet-

lands destruction was actively promoted by the federal

government through the Swamp Land Acts (codified at

43 U.S.C. §§ 982-994), under which it transferred 65 mil-

lion acres of public domain wetlands to the states, the

majority of which was then drained and developed. U.S.

DEPARTMENT OF THE INTERIOR, WETLANDS OF THE UNITED STATES

— THEIR EXTENT AND THEIR VALUE TO WATERFOWL AND OTHER

Witpuire (1956).

Given both the biological richness of wetlands and

the large losses of wetlands habitat, it is not surprising

that many of the species that are threatened or endan-

gered are wetland-dependent. It is estimated that 43 per

cent of all threatened and endangered species are depen-

dent on wetlands. Save SAN Francisco Bay ASSOCIATION,

PRoTEcTING LocaL WetTLANDs 1 (2000). Of the 32 endan-

gered species of the San Francisco Bay Area of California,

for example, 23 depend on wetlands for critical habitat.

Id. at 2.

As is true in this case, individual wetlands frequently

are small in size and comprise a relatively small portion

of the total area occupied by a development project. For

example, the mean size of all non-forested freshwater

wetlands in the United States is less than 8 acres, and the

mean size of all forested freshwater wetlands in the

United States is 21 acres. WETLANDs STATUS AND TRENDS, 33.

13

There are several reasons why this is so. First, localized

hydrological and geological conditions often cause wet-

lands to exist in a dispersed and discontinuous state.

Second, in many cases past development activities have

destroyed some or most of the original wetlands at a

particular location, leaving the remaining wetlands in a

fragmented and reduced state. Third, wetlands often

form a transitional interface between upland and deeper

water habitats. This wetlands interface is often a rela-

tively narrow band between larger areas of upland and

deeper water.

Although wetlands often cover only a relatively

small physical area, they are frequently hydrologically

and biologically connected to the adjacent uplands.

Because of these connections, actions modifying or

destroying wetlands will often have ecological conse-

quences extending beyond the boundaries of the wet-

lands themselves. In turn, development in the uplands

can adversely affect both the wetlands on which the

uplands border and the species that depend on the wet-

lands.

The Ninth Circuit’s new rule will have a drastic effect

on the scope of environmental scrutiny in cases where, as

here, wetlands are to be destroyed as an integral part of a

larger project. By limiting agency scrutiny to only those

environmental effects occurring within the physical area

subject to the agency’s regulatory jurisdiction, the Ninth

Circuit’s rule will reimpose on federal agencies the

blinders that NEPA was intended to remove. In wetlands

permitting cases, this will cause the Corps of Engineers

to limit its scrutiny, as it did here, to only those

14

environmental effects caused by the portion of the devel-

opment occurring within the four corners of the affected

wetlands. No matter how connected the wetlands devel-

opment is with the development on the adjacent upland, |

the environmental consequences occurring from develop-

ment outside the wetlands will be ignored. The result will

be to severely circumscribe the EIS process, for when the

environmental consequences of wetlands-destroying

development projects are viewed through the narrow

blinders crafted by the Ninth Circuit, many such projects

will appear so benign that the Corps of Engineers will not

require an EIS.

D. The Adverse Environmental Consequences Of

Many Other Federal Actions Will Also Escape Full

NEPA Scrutiny Under The Ninth Circuit's

Approach

Wetlands permitting by the Corps of Engineers, how-

ever, is only one exampie of the many types of federal

actions whose full environmental consequences will

escape scrutiny under the Ninth Circuit’s decision.

Indeed, a moment's consideration reveals that many of

the most significant environmental impacts of federal

actions are indirect ones beyond the direct scope of fed-

eral regulation. For example, a completed federal high-

way by itself generates no air pollution. It is only the

private, voluntary, and federally unregulated activity of

driving on the highway that generates air pollution. Like-

wise, commercial and residential development made pos-

sible by a highway can be indirect but inevitable

environmental consequences of its construction. That

these effects are indirect, however, does not mean that

15

they are not causally connected to the federal action nor

that they are too improbable or insubstantial to merit

examination before the federal decisionmaker acts. See,

e.g., Davis v. Coleman, 521 F.2d at 674-76.

¢

CONCLUSION

The petition of Wetlands Action Network and Cali-

fornia Public Research Interest Group for a writ of cer-

tiorari should be granted.

June 11, 2001

Respectfully submitted,

RICHARD R. Wiese

Counsel of Record

2140 Ninth Avenue

San Francisco, CA 94116

Telephone: (415) 665-8793

Counsel for Amicus Curiae

The Sierra Club