General Statements About Future Expansion Do Not Trigger NEPA “Cumulative Impact” Analysis Requirement For CWA Section 404 Permit

 In a ruling that stands to benefit project proponents, the Ninth Circuit Court of Appeals, in Jones v. National Marine Fisheries Service,  Case No. 11-35954 (9th Cir., Dec. 20, 2013), found that the Army Corps of Engineers was not required to consider the cumulative future impacts of a mining project based on the mining company’s general statements about wanting to widen the scope of its mining activities in the future.  Judge Milan Smith authored the unanimous decision, wherein the panel affirmed the district court’s summary judgment in favor of the Army Corps of Engineers in an action challenging the Corps’ issuance of a Section 404 permit under the Clean Water Act for a project to mine mineral sands near Coos Bay, Oregon.

The plaintiffs argued that the mining company’s general statements that it intended to expand its mining operations along a 50-mile stretch of the Oregon coast, as well as the Corps’ consideration of three alternative sites analyzed in the Environmental Assessment as possible future projects, required the Corps to analyze the cumulative impacts of the permitted mining project under NEPA’s implementing regulations. 

The Court disagreed, concluding that the mining company’s stated desires, which included a statement that it intended to mine along the Oregon coast “from Cape Arago to Port Orford,” did not give specific information as to the number, scope or location of any future projects. 

The Court also found that the three alternative sites analyzed in the EA faced significant hurdles to development.  Relying on its prior decisions in Lands Council v. Powell, 395 F.3d 1019 (9th Cir. 2005), Environmental Protection Information Center v. United States Forest Service, 451 F.3d 1005 (9th Cir. 2006), and Northern Plains Resource Council, Inc. v. Surface Transportation Board, 668 F.3d 1067 (9th Cir. 2011), the Court held that the mining company’s intended future activities were speculative and not reasonably foreseeable, and therefore, cumulative impact analysis under NEPA was not required.

The Court also found that the Corps adequately examined the risks associated with potential hexavalent chromium generation from the proposed mining project and conducted an adequate “alternatives analysis” prior to issuing the Section 404 permit.

-- Samir Abdelnour

For more information, please contact Samir Abdelnour at sja@bcltlaw.com, or (415) 228-5443.