On September 30, 2005, the United States District Court for the Southern District of Florida (Court) issued an Order on the merits in response to Cross Motions for Summary Judgment in the case of Florida Wildlife Federation v. U.S. Army Corps of Eng’rs, No. 05-CV-80339, 18 Fla. L. Weekly Fed. D1001 (S.D. Fla. Sept. 30, 2005) (Order on Summary Judgment).  The Order on Summary Judgment concluded that the Army Corps of Engineers (Corps) violated the National Environmental Policy Act (NEPA) by issuing a permit to Palm Beach County (County) for the Scripps Research Institute (Scripps) at the County-owned Mecca Farms site without adequate environmental review.  In summary, the Court did not find that the project was unpermittable, but instead, concluded that additional evaluation was necessary.  This article discusses the Order on Summary Judgment and the subsequent Order on Remedies.  [Florida Wildlife Federation v. U.S. Army Corps of Eng’rs, No. 05-CV-80339, 19 Fla. L. Weekly Fed. D44 (S.D. Fla. Nov. 10, 2005) (Order on Remedies). 

     The entire Scripps site is 1,919 acres in size; the challenged permit was for a 535-acre portion of the site.  There is a system of ditches on the property which are connected to a tributary of the Northwest Fork of the Loxahatchee River.  These ditches are, therefore, considered Waters of the United States.  The Complaint filed by the Florida Wildlife Federation and Sierra Club, Inc. (Plaintiffs) alleged that the Corps acted arbitrarily and capriciously by failing to consider the impact of the entire 1,919 Scripps development; the Corps segmented the project unlawfully to avoid a finding of significance; the Corps’ environmental analysis failed to consider all environmental concerns; and, the Corps performed an inconsistent and insufficient alternatives analysis.  (Order on Summary Judgment, p. 19)  The Plaintiffs alleged that the Corps’ action violated NEPA; the Clean Water Act and the Rivers and Harbors Act of 1899.  The Plaintiffs requested that the Court find that the permit issued by the Corps was invalid and require the Corps to prepare an Environmental Impact Statement (EIS) that addressed the entire scope of the planned development.

     The County asked that the Court find that the 535 acres could be reviewed independently from the remaining acres as well as any other potential impacts because the 535-acre project had independent utility and could be constructed solely without the need for the remaining development.  (Order on Summary Judgment, p. 8)

     The Corps argued that the proposed project “would not have a significant impact on the environment” because the issuance of the Section 404 permit was a “federal” action, but not necessarily a “major” federal action, triggering the requirements of NEPA.  (Order on Summary Judgment, pp. 19, 20)  Because the Corps found no significant impact, the Corps did not prepare an EIS and, instead, issued the permit.  The Corps also determined that the public hearing requested in comments was not needed because all the issues raised during the comment process had been identified and resolved.  The finding of no significant impact and the decision not to prepare an EIS was a final administrative decision reviewable under the Administrative Procedures Act.  (Order on Summary Judgment, p. 11)

     The Corps argued that it had properly limited the scope of its analysis to the aspects of the project over which it had sufficient “control and responsibility” to warrant federal review, in this case the 535 acres.  The Corps further argued that the project had independent utility because it would be constructed without the need for the construction of other projects in the project area.  The Corps acknowledged that it was aware of plans for future development; that it would have jurisdiction over the next phases of development; and, that it anticipated applications for those future phases.  (Order on Summary Judgment, p. 22) 

     The Court found that the filling of wetlands in the ditches on the 535 acres was not discrete because the ditches ran throughout the site.  (Order on Summary Judgment, p. 23)  The “anti-segmentation rule,” which holds that an agency cannot evade its responsibilities under NEPA by artificially dividing a major federal action into smaller components, was applied to find no significant impact.  (Order on Summary Judgment, p. 23)  The Order states that segmentation occurred in two ways:  first, when the Corps limited its analysis to the 535 acres instead of the entire 1,919-acre site and, second, when the Corps authorized the extension of PGA Blvd. without considering its projected connection to the Bee Line Highway across wetlands.  The Court found that ending an extension of PGA Blvd. in a cul-de-sac, as was proposed in the project design, was not a logical terminus.  The Order stated that permitting the first part of the road without considering the future effects was an arbitrary and capricious determination that the project did not have any significant environmental impacts.  (Order on Summary Judgment, p. 30)

     The Corps argued that it only needed to consider the effects of cumulative actions that were already proposed.  It declined to consider planned future development.  The Corps stated that it would evaluate the cumulative impacts of future potential development when applications are received.  (Order on Summary Judgment, p. 49)  The Court did not agree with this approach and found that the future development of at least the remainder of Mecca Farms was being actively pursued and thus was not speculative.  The 1,919 acre site was not a series of projects but, instead, an integrated whole.  Although the project had independent utility, it was not intended to stand alone.  (Order on Summary Judgment, p. 52)

     The Corps’ rules require an analysis of alternative sites.  In this case, five alternative locations were considered.  The Corps considered the economic development of the entire 1,919 acre project in its alternatives analysis, not just the 535 acres in Phase I.  The Court found that alternatives and benefits analysis did not match the scope of the impact analysis.  The information the County submitted for the alternatives analysis stated that other identified sites did not meet the size requirements.  The Court found that the scope of the alternatives analysis incorporated consideration of the entire project rather than limiting it to the scope of the proposal before the Corps, which was improper.  The Court further found that since the alternatives analysis was not properly limited in scope, the Court could not ascertain whether environmental considerations were adequately addressed.  (Order on Summary Judgment, pp. 57-59)

     After ruling in the Plaintiffs’ favor on the Motion for Summary Judgment, the Court directed the parties to file memoranda on remedies.  On November 10, 2005, the Court entered its ruling on those remedies. [Florida Wildlife Federation v. U.S. Army Corps of Eng’rs, 18 Fla. L. Weekly Fed. D1015 (S.D. Fla. Nov. 10, 2005)]  The Plaintiffs’ Memorandum on Remedies requested that the Court set aside the Corps’ permit; order the Corps to perform an EIS that took into account the effects of all reasonably foreseeable impacts identified in the Court’s September 30, 2005, Order or the administrative record; and enjoin all development of the project pending the completion of the environmental review.  The Corps, the County and Scripps asked the Court to remand the matter to the Corps for further consideration in light of the Court’s Order and to take no further action.

     The Corps, the County and Scripps contended that the Court did not have jurisdiction to enjoin the County or Scripps because the action was against the Corps only for violations of NEPA, a federal statute that only requires compliance by the Corps.  The County and Scripps were not named as defendants in the case and were heard only as Amici Curiae during the merit phase of the litigation and were only granted intervener status during the remedial phase.  (Order on Remedies, p. 12)

     While injunctions are generally only issued against a party, a court has the power to enjoin third parties but only under limited circumstances and when necessary to ensure the effectiveness of its orders.  [28 U.S.C. s1651(a)] (Order on Remedies, p. 13)  In this case, the Court found that while no cause of action had been asserted against the County or Scripps, injunctive relief was necessary in order to give effect to the Court’s September 30, 2005, ruling.  (Order on Remedies, p. 15)  The Court found that the Plaintiffs had suffered irreparable injury, not just the harm from the direct dredging and filling of wetlands, but also the harm that arose from allowing the Corps to permit a large “growth-inducing” development in an environmentally sensitive area without first considering all the “reasonably foreseeable indirect and cumulative effects of such action.”  (Order on Remedies, p. 17) 

     The Court found that if construction was not enjoined “these as yet unexamined effects would begin to take place and no amount of subsequent environmental analysis would undo them.”  (Order on Remedies, p. 17)  Since injunctive relief is not mandatory under NEPA, the Court balanced various equitable factors to determine whether an injunction was appropriate in this instance.  An injunction may be granted if the moving party has prevailed on the merits and demonstrated that irreparable injury will be suffered unless the injunction issues; that the threatened injury to the movant outweighs any damage the injunction may cause to the opposing party; and the issuance of an injunction would not be adverse to the public interest.  Once this has been shown, then the Plaintiffs have the burden of demonstrating that the harm from continued construction outweighed the harm to the party that would be enjoined. 

     The Court found that equity weighed in the County’s and Scripps’ favor as to certain components of the construction plan and therefore elected to exclude those components from the scope of the injunction.  First, the jurisdictional wetlands on the 40-acre site where the 3 buildings will be constructed were filled before the action was filed.  Second, when Scripps received the land, Scripps was not itself required to obtain any federal permits to initiate construction.  Third, Scripps has a $5 million gift which requires permanent facilities be constructed on the 44-acre site within the current construction schedule.  (Order on Remedies, p. 24)

     Judge Middlebrooks found that the facts weighed against enjoining Scripps’ construction of its 3 buildings and that this limited construction would not be adverse to the public interest.  The Court found that carefully tailored injunctive relief could allow some construction while still ensuring a “full and fair environmental review.”  (Order on Remedies, p. 24)  All construction was enjoined with the exception of the 3 buildings, the completion of Seminole Pratt-Whitney Road which was more than forty percent complete, the construction of a pipeline which will also serve other facilities, and mitigation designed to compensate for the harm caused by dredging and filling of jurisdictional wetlands.  Finally, the matter was remanded to the Corps for reconsideration in light of the Court’s September 30, 2005, Order.