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Sunday, May 22, 2016

Bombing Boise: Confusing Government’s Authority to Regulate with its Responsibility to Consider Environmental Impacts

Under Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403) and Section 404 of the Clean Water Act of 1972 (33 U.S.C. 1344), the U.S. Army Corps of Engineers (Corps) regulates the discharge of fill into water bodies defined as parts of the “waters of the United States.” Often the Corps’ Section 10/404 permit authority is the only federal “handle” that makes a privately funded project on non-federal land subject to review under such environmental impact assessment laws as the National Environmental Policy Act (NEPA) and Section 106 of the National Historic Preservation Act (NHPA).  Often this “handle” is quite a small one in geographic terms vis-Ă -vis the overall project; in other words, the discharge of fill into a water body may be a small part of a large project whose effects otherwise are not subject to U.S. government regulation.

In consultations under the NHPA, and in litigation under both the NEPA and the NHPA, consulting parties and plaintiffs often argue that the Corps must consider the effects of the entire project on the environment (or in the case of the NHPA, on historic properties). The Corps typically responds that it can consider only what falls within its regulatory jurisdiction. Exactly how much this constrains the Corps’ review of impacts varies from case to case, depending on how the Corps in each case interprets the esoteric language of its regulatory program regulations, 33 CFR 320-338.  Generally speaking, however, the Corps position is that it can consider only effects that may occur within the “permit area” of a given proposed discharge or stream crossing, which more or less means the waters into which the fill will be discharged or which will be crossed by the project, plus certain appurtenant areas where things may be done that are pretty directly related to the discharge or crossing (access road construction, etc.).

Although the Corps' early history of success with this limited interpretation was spotty (c.f., in recent years courts have often agreed with the Corps’ view of its responsibilities.  For example, in Sierra Club v. U.S. Army Corps of Engineers, 803 F.3d 31 (D.C. Cir. 2015), the court held that the Corps was “not required to conduct NEPA analysis of the entirety of the … pipeline, including portions not subject to federal control or permitting.”

I think that the Corps, and the court, have confused the extent of a project's likely environmental effects with the extent of government regulatory authority. This confusion can be illustrated by reference to a hypothetical example that I refer to as “bombing Boise[1].” I am quite sure I outlined this hypothetical in some version of one of my ancient publications, but I can’t now locate it, and if I can’t, it’s a sure bet that no one else can, so here it is again.

Suppose that the owner of a tract of marshland in central Florida – call him Donald – has developed a visceral dislike for the city of Boise, Idaho. Donald, who has far more money than he knows what to do with, decides to wipe that city off the map. To achieve this goal, he arranges for the purchase of an intermediate range ballistic missile with a nuclear warhead (Remember, this is hypothetical). He plans to launch this missile toward Boise from his marshy ranch in central Florida. To do so, he must fill some 2.5 acres of marsh in order to create a stable launch pad. A law-abiding citizen, Donald applies for a permit from the Corps.

Here’s the question: in considering whether to issue Donald a permit for his project in Florida, must the Corps consider the likely effects of doing so on the environment of Boise, Idaho? Boise is a very long way from the waters of the U.S. into which Donald will discharge his fill. It is certainly well outside Donald’s “permit area” as defined in the Corps’ regulations. Donald may or may not be able to get his bird off the ground, and it may or may not be shot down by Boise’s missile defense system, but let’s set that aside. Should the Corps consider the effects of bombing Boise when it considers Donald’s permit application?

The court in Sierra Club seems to say “no,” because the Corps has no “regulatory control” over what the project in the marshes of central Florida may do to distant upland areas like Boise.

But is regulatory control over areas of impact actually relevant?

The NEPA, at Section 102(C), directs that federal agencies prepare statements analyzing environmental impacts of any federal action “significantly affecting the quality of the human environment.” The NHPA, at Section 106, says that federal agencies must take into account the effects of their undertakings “on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register (of Historic Places).” Neither statute says that agencies are to consider only effects that are subject to their “control,” regulatory or otherwise.

In the case of Donald’s project, arguably the Corps’ “regulatory control” extends only to the wetlands he proposes to fill, and the adjacent or nearby areas that will be impinged upon by roads, liquid oxygen lines, warhead containment facilities and the like. But the area in which environmental impacts may occur if the Corps gives him the permit is much larger, surely including Boise. Can the Corps ignore what Donald plans to do to the capital of Idaho? I don’t think so -- regardless of the ostensibly limited extent of the Corps' regulatory control.

And of course, the Corps does have regulatory control over Donald's proposed launch site. It can -- presumably -- say no to his project in order to protect Boise, even if filling Donald's 2.5 acres of wetlands will do no damage whatever to waters of the United States. If Donald were to build his pad on dry land where he didn't need a Corps permit, then of course the Corps would not have regulatory control; the Corps would not be a player in Donald's scheme, and Donald could bomb Boise to his heart's content. But since the Corps is a player, it seems to me that it has to consider the impacts of Donald's plans, wherever they may occur.

I think the confusion between “area of regulatory control” and “area(s) where environmental impacts may occur” that's reflected in the Sierra Club decision results from a misinterpretation of what the Sierra Club court referred to as "NEPA analysis" -- that is, the work that must be done to determine what a projects's environmental impacts may be and what to do about them. It is widely assumed that to perform such analysis, under the NEPA or under a more specific statute like the NHPA,  the responsible federal agency must require that detailed studies be done in order to determine what effects will occur – counting how many endangered owls live in the potentially affected area or how many ancestral indigenous graves may lie hidden in its soil. Doing these things costs money, and environmental consulting firms understandably assure agencies and regulated industries that they must be done in order to assess effects. Those who pay the bills for such work naturally seek relief, and the Corps has seized on its lack of “regulatory control” over areas of potential effect as the means of providing it.

“You can’t possibly require me to count endangered lizards and old buildings in Boise as a condition of my permit in Florida!” Donald thunders, and the Corps quickly moves to mollify him. “No sir, no sir, don’t you worry, sir. Boise isn’t even in our Division; we don’t have any – er – regulatory control over what your project does there.”

This is obviously nuts. The Corps should certainly consider what giving Donald his permit may do to Boise and its environment, and if it determines that the public interest demands saving the city at the expense of Donald’s right to use his Florida marshland as he sees fit, it should deny the permit. Exactly what processes the Corps may need to employ in giving the matter such consideration, and what studies may be necessary (if any) depend on the character of the case. In Donald's case, one doesn't need to find and evaluate every National Register eligible building in town to know that nuking them all will have adverse effects, or that other aspects of the city's environment (like the welfare of its resident lizards, owls, and human beings) will be drastically impacted.

Turning to a real-life case, consider the Dakota Access Pipeline (, a proposed almost 1200-mile oil pipeline between northwestern North Dakota and southern Illinois. Its construction will require the Corps to issue over 200 permits for water-crossings; without these crossings the project cannot be built. Should the Corps look at the impacts of the whole project – as affected Indian tribes and the Advisory Council on Historic Preservation, among others, propose? Or should it spend its time on 200+ individual permit actions and ignore the project’s overall effects? The Corps, I’m told – citing Sierra Club – says it can do only the latter. This strikes me as no more justified – or consistent with the intent of the NEPA and the NHPA – than letting Donald bomb Boise without first inquiring into the impacts of doing so. The Corps should stop playing semantic games with its regulatory language and sit down with the tribes and others concerned to determine how to address the project's overall potential effects.

[1] Oddly enough, the city of Boise, Oklahoma (not Idaho) WAS bombed during World War II; see


Lance M. Foster said...

That's true, Tom, and you know I feel the same, but until such time as someone SUCCESSFULLY challenges the COE's position in court, they will keep their position, especially since it was IN court that their position was validated. There is a different between what is "right" (ethical, etc.) and what is legal, despite what people think. The court system is a long conversation, and case law precedent determines things more than anything else. That's why people have to carefully consider what cases they bring to court, because a decision against you sets a precedent that generally makes things more and more difficult.

Genavie Thomas said...

Seems like it would be a lot easier to squash a permit with a civilian proponent, with ven local authorities. Can you debate the APE of a governmental institution that has "National Security" in its mission. Case in point was the NEPA review for improvements to the dock and surrounds at the US Navys Bangor Trident Nuclear Base. The indirect cultural impacts from a trident submarine based in Washington State are potential planetary, extinction level effects. With troubles in the middle east making foreign imports dicey, cant national security be invoked, and all regs are out?

Anonymous said...

Thanks again, Tom!

Tom King said...

Well, "national security" is a big club, but it doesn't necessarily trump the need to address environmental impacts. When "debating" such things with military folks, I try to use the intelligence analogy; it's dumb to attack Hill 75 without good intel about what may be dug in there; in the same way, it's dumb to decide where to berth your subs without good intel on what the relative impacts of this versus that berthing decision may be. Which is all NEPA requires: get good intel before you make a decision. Whether that argument would appeal to a particular court, of course, is always a crap shoot.

marcaeoloG said...

When I was with the National Park Service, the Corps of Engineers issued a new slogan: "The Corps Cares!" based on my experience I took that and altered it to read, "The Corpse Cares!".

Anonymous said...

Let's take one step back, because many readers might not know, and won't understand the rest of your argument. If the ACOE permit only regulates the discharge of fill into "the waters of the United States", and ACOE has no jurisdiction over private lands or other non-federal lands beyond the waters edge, how and why is NHPA involved all ? Obviously, the NHPA is not being limited to submerged historic properties and objects in federal waters, so there must be a wider purview to NHPA in connection with ACOE permits. Can you explain for those of us who don't know ?

Tom King said...

Anonymous, let me try to explain -- though that's rather what this whole piece tried to do. NHPA Sec. 106 says that an agency must take into account the effects of its actions. If the ACOE, with acknowledged jurisdiction only over "waters of the U.S." in Florida, permits Donald to put in his launch pad and level Boise, that leveling is an effect of the Corps' permit action; hence it has to be considered under Section 106 (and NEPA). Does that do it for you?

Corps-folk I know and respect argue that "you can't use 404 to regulate the universe," and I think that's true. It's damned unfortunate that we don't have a general-applicability EIA requirement based on a less flimsy footing than the Commerce Clause (the constitutional basis for the Corps' regulation of "waters of the U.S."). But we don't, so we work with what we have.

Tom King said...

Lance, of course things stay as they are until the courts say otherwise (or the regs get changed), but courts do (if properly assisted by good attorneys) pay attention to the relevant literature, so I keep trying to crank it out.

Anonymous said...

Thank you. In reply to my "water's edge" question - (the Corps jurisdiction stops at waters edge but the permitted activities are an undertaking with an A.P.E. that goes beyond the waters edge) - what would you say about a federal permit for a wind farm, wherein the permit authorizes an acceptable amount of bird mortality ? Or a new golf course that allows an acceptable loss of bird habitat? In both permits, the permittee agrees to certain modifications - maybe they will seasonally restrict the use of their project so as to reduce the amount of bird mortality, or change the construction design to minimize the loss of bird habitat, or replace it with habitat elsewhere, or maybe just finance other programs that help the birds. The federal agency (USFWS) claims that the permit is only authorizing the modified effects on the numbers of birds, over which it has protective jurisdiction. The permit is not authorizing the construction activities themselves, because the USFWS has no jurisdiction over the land. The USFWS jurisdiction is limited to the federally protected birds, and thus, the permit is limited to the acceptable loss of birds, and thus, USFWS sees no need to comply with NHPA. Do you buy the agency's self-declared exemption from NHPA ? And, no, this question is not at all frivolous or "for the birds" - companies have paid court ordered multi-million dollar fines for not obtaining one of these federal bird permits, when construction projects resulted in bird mortalities. And the question is not limited to avian species either - certain terrestrial animals are also covered by the same type of federal permit. So, what say you ? Is the USFWS right, or wrong, regarding its self-declared exemption from NHPA ? If the Corps permit is a federal action that results in an undertaking that goes beyond the waters edge jurisdiction, should the same be expected of a USFWS bird permit? (they're called "take" permits, a misleading term which confuses people, because "take" can mean anything that harasses or impedes birds and other species, thereby making it harder for them to subsist and reproduce - "take" means more than just direct and immediate mortalities, which is how the term sounds). Elsewhere, you have also written about animals as contributing components of traditional cultural properties. This is not that question. This question is about undertakings with A.P.E.s, on the ground, anywhere.

Tom King said...

Seems to me that if the federal action affects where and how the project will be carried out -- where the wind generators will be, for instance -- then it has the potential to affect historic properties, and requires review. If it doesn't, then it doesn't. Which I realize seems simpleminded, but I think that's where you start.