Case Law Updates on the Environment (CLUE)
Case Law Update Details
Miccosukee Tribe of Indians of Florida v. U.S. Army Corps of Engineers
U.S. Court of Appeals - 11th Circuit
Tamiami Trail Modifications Project
This project involves the Tamiami Trail, also known as U.S. Highway 41, which extends east-west across Florida, through the Everglades National Park. The road was originally constructed at-grade, and therefore it impedes the flow of water into the Everglades from the north. This project involved replacing a mile-long section of the highway with a bridge, which would increase water flow into the Everglades. The tribe opposed the project, in part because of a concern that the project would increase water levels and thereby flood certain tribal lands. The Corps prepared an EA for the project, and then approved the project based on that EA. The plaintiffs filed a number of lawsuits seeking to stop the project. Congress responded by including, in a 2009 appropriations bill, a provision that directed the Corps to proceed immediately with the project.
In this case, the plaintiffs alleged that the Corps violated NEPA when it approved the project. The Corps moved to dismiss the case, arguing that the 2009 appropriations bill had exempted the project from NEPA and other federal environmental requirements. The U.S. District Court upheld the Corps' position, and the plaintiffs then appealed. In this decision, the U.S. Court of Appeals for the 11th Circuit affirmed the District Court's decision. The Court of Appeals held that Congress had exempted the Corps from compliance with NEPA and other federal environmental laws with regard to this project.
Legislative Waiver of Federal Environmental Requirements. The 2009 appropriations bill for the Corps contained the following language, which provided funding for the Tamiami Trail project, while also directing the Corps to move forward with the project:
- "For construction, improvements, repair or replacement of physical facilities, including a portion of the expense for the modifications authorized by section 104 of the Everglades National Park Protection and Expansion Act of 1989, $233,158,000, to remain available until expended: Provided, That funds appropriated in this Act, or in any prior Act of Congress, for the implementation of the Modified Water Deliveries to Everglades National Park Project, shall be made available to the Army Corps of Engineers which shall, notwithstanding any other provision of law, immediately and without further delay construct or cause to be constructed Alternative 3.2.2.a to U.S. Highway 41 (the Tamiami Trail) consistent with the Limited Reevaluation Report with Integrated Environmental Assessment and addendum, approved August 2008...." (emphasis added)
The court held that this language exempted the Corps from the requirements of NEPA and other federal environmental laws with regard to this project. The court based its decision on three aspects of the legislation: (1) the "notwithstanding" clause; (2) the immediacy of the mandate to implement the project; and (3) the use of mandatory language.
- Notwithstanding Any Other Law. "[T]he Omnibus Act uses broad language here: 'notwithstanding any other provision of law.' Nothing about the word 'any' suggests that 'law' should refer only to appropriation laws, rather than 'any' laws."
- Requirement for Immediate Action. "The simplest reading of this plain language is that Congress wanted the bridge built now. Congress sought to facilitate this goal by repealing the environmental laws that it had previously passed. Allowing further administrative challenges to the bridge under those environmental laws, more than two decades after Congress passed legislation seeking to improve water flows in the Everglades, would further delay the speedy completion of the bridge and frustrate Congress's clear intent. In this way, the immediacy clause creates a direct conflict with the time-consuming administrative review mandated by the environmental laws, and therefore the environmental laws must yield. This finding of a conflict cements our conclusion that Congress effected a repeal here. We reach this conclusion without deciding the issue of whether finding a conflict is necessary for the operation of a general repealing clause."
- Lack of Agency Discretion. "In the Omnibus Act, Congress directs that the Corps shall build the bridge as described in the June 2008 LRR/EA report. This command denies the Corps any discretion in the matter. This lack of discretion is a third reason why the federal courts have no subject matter jurisdiction over the Tribe's suits. Claims brought against an agency under NEPA, FACA, or the ESA proceed only when the agency has choices in a matter-here, choices between alternatives that vary in their environmental friendliness. Here, no discretion means no jurisdiction."
Because the court determined that Congress had exempted this project from the requirements of federal environmental laws, the court held that it did not have jurisdiction to consider the plaintiffs' allegations. Therefore, the court dismissed the case.