The Arbitrary and Capricious Standard Remains Deferential: The Corps’ Nationwide Permit 21 Survives Review

Late last week, the 11th Circuit Court of Appeals rejected challenges to the Army Corps’ Nationwide Permit 21, which allows small surface mining projects to proceed without individual permits under § 404.  black-warrior-river

The plaintiffs argued that NWP 21 was arbitrary and capricious because the Corps imposed numeric limitations on new projects – and described those limitations as “necessary” to prevent more than minimal environmental harm – but did not impose those same numeric limitations on existing projects. For existing projects, however, NWP requires that the district engineer certify that activities under the permit “will result in minimal individual and cumulative adverse effects….”

I don’t think that the arbitrary and capricious standard was even necessary to affirm the Corps here.  As long as the Corps gets any discretion at all, the Court made the right call.  While it is true that NWP imposes numerical limits on new mines not applicable to existing mines, there are two good reasons for doing so.  First, because NWP 21 requires district engineer certification for existing projects, the grandfathering provision really becomes a kind of simplified individual permit.  District engineer review is not required for new mines, where the numerical criteria effectively substitute for individual review.  Moreover, as the Court noted, there is data on the environmental impacts of the existing mines, which the district engineer can review prior to providing the required certification under NWP 21.

The Corps made a perfectly reasonable call in distinguishing between new and existing surface mining projects.  The Court correctly deferred to the Corps’ approach.

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