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Case Law Updates on the Environment (CLUE)

Case Law Update Details

Case Title

Hillsdale Environmental Loss Prevention v. Corps of Engineers

Case No.

702 F.3d 1156

Court

U.S. Court of Appeals - 10th Circuit

State

Kansas

Date

11/28/2012

Project

BNSF Rail/Truck Terminal

Project Type

Multimodal

Project Description

This case involved the proposed construction of a new Burlington Northern Santa Fe (BNSF) rail/truck terminal outside Kansas City, Kansas. BNSF operates a transcontinental railroad, the Southern Mainline, that passes through Kansas City. It proposed to construct a new rail/truck terminal near the Southern Mainline because its current terminal had insufficient capacity and lacked space to expand. BNSF established site-selection criteria, including a requirement that any new site must be within 30 miles of BNSF’s existing terminal, because many of BNSF’s customers had facilities nearby. BNSF proposed to construct the facility at a site near Gardner, KS. Construction on that site involved wetlands and stream impacts, and therefore an individual Section 404 permit was required.

As part of the Section 404 permitting process, the Corps of Engineers prepared an EA for the proposed project. The EA considered the Gardner site and one other site, known as Wellsville North. The Corps eliminated all other alternatives as impracticable. The Corps ultimately issued a FONSI and a Section 404 permit approving the Gardner site.

Case Summary

Several organizations and individuals who opposed to Gardner site filed suit in federal court, challenging the Corps’ approval of the FONSI and Section 404 permit for the project. The lawsuit alleged that the Corps had violated NEPA by issuing an EA and FONSI instead of preparing an EIS. The lawsuit also alleged that the Corps had violated Section 404 by making a flawed “LEDPA” finding. The court ruled against the plaintiffs on all issues, and upheld the Corps’ approval of the project.

Key Holdings

CWA

Section 404 - LEDPA Analysis.  The Section 404 permit for the project authorized impacts to approximately 17,302 linear feet of streams and 4.61 acres of wetlands. The plaintiffs claimed that, in issuing this permit, the Corps did not properly identify the “least environmentally damaging practicable alternative” or LEDPA.  In essence, they argued that other practicable alternatives with lower impacts were available.  The Court held that the Corps had properly accepted BNSF’s site-selection criteria, including the requirement for the new site to be within a 30-mile radius, and had reasonably concluded that the Gardner site was the least-impacting site within that radius.  In  determining the sufficiency of the Corps’ analysis, the court took into account the “minor to moderate” degree of the project’s impacts on wetlands, noting that the Corps’ regulations require to “recognize the different levels of effort that should be associated with varying degrees of impact” of different projects.

NEPA

Significance - Fugitive Dust Emissions.  Based on air quality modeling prepared by EPA, the Corps determined that the fugitive dust emissions from the facility had the potential to be significant.  To avoid significant impacts, BNSF entered into an agreement with the Kansas Department of Health and Environment (KDHE).  The agreement required monitoring for 2 years after the facility opened, and gave KDHE authority to require additional mitigation if fugitive dust emissions exceeded specified levels.  The plaintiffs argued that, despite this agreement, the fugitive dust emissions were “significant” and required preparation of an EIS.  The court disagreed with the plaintiffs and upheld the Corps’ findings that the dust emissions were insignificant.  The court addressed several issues in reaching this conclusion:

  • The agreement contained mandatory monitoring provisions and was enforceable under Kansas law.

  • KDHE had a legal duty to protect air quality, and had the authority to extend the mitigation agreement beyond two years or require additional monitoring, if needed.

  • There was no evidence that fugitive dust emissions during construction would be significant, so it was acceptable for the agreement to require monitoring only when the terminal was in operation.

  • It was acceptable for the agreement to identify a menu of mitigation measures that needed to be considered, without specifying measures which ones must be adopted.  The court found that this approach was sufficient because “the plan’s mandatory monitoring provisions are designed to ensure BNSF adopts effective mitigation measures if excessive emissions occur.”

Significance - Air Quality.  The Corps evaluated a range of air quality impacts from rail and truck traffic, and found all of those impacts to be insignificant.  The plaintiffs challenged those findings, but the court upheld the Corps’ determination that the air quality impacts would be insignificant.

  • Off-Site Locomotive Emissions.  The Corps’ air quality analysis included locomotive emissions within, but not outside, the facility boundaries.  The court upheld this approach because it found that off-site locomotive emissions were adequately reflected in “background emissions levels” .

  • Non-Truck Vehicle Emissions.  The Corps’ air quality analysis considered emissions from truck traffic at the facility, but did not consider the impacts from non-trucks (passenger vehicles) at the facility.  The court upheld this approach because it found that any increase in emissions from passenger vehicles would be very small as percentage of the total volume of passenger vehicle traffic in the area.

  • Cancer Risks.  The Corps’ air quality analysis considered potential cancer risks associated with a wide variety of pollutants, but did not specifically analyze the cancer risks from diesel particulate matter (DPM), a component of diesel exhaust.  The court acknowledged that the Corps had used California’s methodology for assessing the health risks of DPM on another project, but held that the Corps was not required to use that methodology here. 

“The Corps’s chosen methodology is entitled to deference. The Corps considered California’s methodology and determined it was inappropriate. The Corps based this decision on information provided by an expert agency, the EPA, including the EPA’s conclusion that it cannot currently establish an accurate dose-response relationship for DPM exposure and EPA’s concerns with California’s methodology. The Corps instead relied on EPA standards. The EPA signed off on the Corps’s air quality analysis.”

  • Off-Site Truck Emissions.  The Corps’ air quality analysis considered truck emissions at the terminal itself, but did not consider truck emissions on a nearby Interstate (I-35), even though the Corps estimated that 81% of the truck traffic to the facility would use that Interstate.  The Corps explained that it had modeled emissions on an access road that would be used by 100% of the truck traffics approaching the facility, and had found no violations at that location - i.e., at the worst-case location.  The Corps inferred that, if emissions levels were acceptable at the access road, they would be acceptable on the Interstate.  The court upheld this conclusion.

Significance - Water Quality.  The Corps considered potential water quality impacts on Hillsdale Lake, a local reservoir and drinking water source for approximately 30,000 people.  It found that some pollutants from the facility may enter that reservoir, but concluded those impacts would be minor.  The court found that this conclusion was supported by a study conducted at a similar facility in Alabama.  The court therefore upheld the Corps’ conclusion that the water quality impacts would not be significant.

Significance - Controversy.  The plaintiffs argued that the controversial nature of the project was itself a factor demonstrating  “significant” impacts that required preparation of an EIS.  The court held that public opposition alone does not create the type of “controversy” that triggers the need to prepare an EIS:  “When analyzing whether a proposal is controversial, we consider the substance of the comments, not the number for or against the project. Even if 90% of the comments to the environmental assessment were negative, this merely demonstrates public opposition, not a substantial dispute about the ‘size, nature, or effect’ of the intermodal facility.”

Litigation Procedure

Mootness.  The Corps asked the court to dismiss the lawsuit as moot, because construction of the facility was 65% complete, 95% of the permitted impacts to jurisdictional waters had occurred, and 95% of the mitigation for those impacts had been implemented.  The court declined to dismiss the case as moot, because it found that the court still had the ability to provide effective relief to the plaintiffs - for example, the court could have directed the Corps to require additional mitigation:  “The Corps does not lack authority to impose additional mitigation, as it argues, because it may add conditions to permits even after they are granted when those conditions are necessary to satisfy legal requirements or protect the public interest.”

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