DC Circuit blocks Florida's self-policed pollution dumping permit scheme

WASHINGTON (CN) — A split D.C. Circuit panel on Friday rejected a Clean Water Act pollution dumping permit scheme between Florida and the Environmental Protection Agency, which allowed the state to police any harms to endangered species.

In a 2-1 decision, a three-judge panel sided with environmental groups and struck down the system, finding it violated the Endangered Species Act and that the EPA and U.S. Fish and Wildlife Service failed to meet their review obligations.

U.S. Circuit Judge Florence Pan, a Joe Biden appointee, wrote that the scheme resembled a hypothetical arrangement between a trucking company owner and a Department of Motor Vehicles manager that allows the owner to conduct their own safety inspections to obtain certification.

Although the owner promises compliance, there is no guarantee inspections are performed, and the DMV manager no longer has any obligation to ensure the trucks are safe, Pan wrote.

In this case, Pan wrote, the EPA is the DMV manager, the Fish and Wildlife Service is the vehicle inspector and Florida is the trucking company owner. The agencies certified Florida complied with the Endangered Species Act without ensuring permit holders met, or would meet, the act’s “safety regulations” when permits were approved or issued.

“The FWS thus abdicated its responsibility to enforce the [Endangered Species Act]: The agency essentially delegated that job to Florida without ensuring that Florida would protect endangered and threatened species in a manner specified by the [Endangered Species Act],” Pan wrote. “ Meanwhile, the EPA relied on the FWS’s representations about the program’s compliance with the [Endangered Species Act] to approve Florida’s permitting scheme. Thus, the EPA and the FWS enabled Florida and the recipients of its permits to evade the [Endangered Species Act]’s exacting procedures for protecting listed species.”

Florida is home to hundreds of endangered and threatened species, including the Florida panther, West Indian manatee, Audubon’s crested caracara, Florida bonneted bat and nesting sea turtles. Construction projects affecting those species must comply with the Endangered Species Act.

To avoid what it called the “burdensome” need for additional federal permits, Florida sought approval under Section 404 of the Clean Water Act for a system allowing builders and miners to discharge dredged or fill material into state waters without separate review under Section 10 of the Endangered Species Act.

The state aimed to “streamline” the process by securing broad, upfront liability protection for future permit holders through a one-time consultation between the EPA and FWS. That consultation produced a “programmatic” no-jeopardy determination and incidental take statement. The EPA approved the program in 2020.

U.S. Circuit Judge Karen Henderson concurred in part and dissented in part, finding the EPA was correct to allow Florida to run its own Clean Water Act permitting program, as it engaged in consultations with built-in conditions to mitigate any potential harm an individual permit may cause.

“The central question is whether the government can rely on future permit-by-permit consultation to measure harm to endangered species or whether, at the time of transfer, it has to divine the full impact of permitting across the entire state of Florida for all time,” the Ronald Reagan appointee wrote. “I believe the Congress has not required federal agencies to make remote, perhaps improbable predictions in conducting their [Endangered Species Act] review. And courts should stop short of demanding that they try to do so.”

U.S. Circuit Judge Robert Wilkins, a Barack Obama appointee, agreed in part, concluding that the biological opinion and incidental take statements underlying the EPA’s approval violated the Endangered Species Act and the Administrative Procedure Act.

Wilkins said the take statement failed to specify the amount and extent of incidental take, meaning unintentional but foreseeable harm to endangered species, and did not identify what level of harm would require a new review.

Elise Bennett, director of the Center for Biological Diversity’s Florida Program, applauded the panel’s decision in an emailed statement.

“I’m relieved that Florida’s endangered creatures — from majestic Florida panthers to tiny, Miami Cave crayfish — will continue to receive the full protections guaranteed by federal environmental law,” Bennett said. “This decision sends a clear signal that no amount of creative maneuvering allows the federal government to relinquish its authority and duty to ensure our endangered species will not be driven over the brink of extinction through federal actions.”

The EPA declined to comment on the panel’s ruling. The Florida Department of Environmental Protection did not respond to a request for comment.

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