Posted on February 26, 2024
Last week a DC Federal Judge vacated EPA’s approval of the State of Florida’s application to assume the Army Corps of Engineers’ authority to issue “dredge and fill” permits under Section 404 of the Federal Clean Water Act. Florida was only the third state to make such an application in the more than half century since the enactment of the Clean Water Act.
But it isn’t the Judge’s decision that sets a high bar for other States seeking approval to stand in the shoes of the Federal Government when it comes to authorizing the dredging or filling of Waters of the United States. It is the National Environmental Policy Act and the Federal Endangered Species Act that set that difficult and time consuming to clear bar.
Judge Moss’s nearly 100 page decision explains how the United States Fish and Wildlife Service failed to do that which the Endangered Species Act requires it to do on the way to EPA acting favorably on Florida’s application.
Based on Judge Moss’s decision, the most that can be said of what the Fish and Wildlife Service and EPA did and didn’t do in this case is that they did the best they could in the very limited time available for them to act before the end of the preceding Presidential administration. But the simple fact is that it is impossible under the current Endangered Species Act and National Environmental Policy Act to do in four months what the State of Florida asked EPA to do.
And, with the reach of the Federal Clean Water Act being shorter than it has been in more than a generation, based on the United States Supreme Court’s decision last year in Sackett v. EPA, you can count me among those not very upset about the Federal Government remaining in charge with respect to the authority it still has.
I wouldn’t expect EPA to be processing applications like Florida’s any time soon. But, again, there wasn’t a long line of states applying.
However, this case is significant for another important reason. It speaks to the weight of the Endangered Species Act, and by implication the National Environmental Policy Act, and the significant effect these Federal laws can have on Federal permitting. These same Federal laws apply to other activities some might be much more inclined to expedite – like the Federal permitting of renewable energy infrastructure – which also takes years, not months, owing to these same requirements.
Next month the First Circuit Court of Appeals will hear arguments that the Federal Government inadequately considered the impacts of the Vineyard Wind project on endangered right whales. This litigation has gone on for years following the completion of permitting, including compliance with the Endangered Species Act, that took years to complete.
In the face of our climate emergency, and the many challenges faced by those leading our transition to renewable energy, we all need to think seriously about how the burdens imposed by NEPA and the Endangered Species Act that thwarted Florida might be better managed so that our renewable energy future isn’t prevented by NIMBY lawsuits like the one that will be disposed of by the First Circuit next month. Otherwise we’re very unlikely to get to that renewable energy future in the time in which the scientists say we have to get there.
