The Tenth Circuit issued its opinion in Hillsdale Envtl. Loss Prevention, Inc. v. US Army Corps of Engineers on Wednesday, November 28, 2012.

Several environmental groups (collectively, Hillsdale) brought challenges to a dredge and fill permit issued by the United States Army Corps of Engineers (Corps) under the Clean Water Act (CWA), 33 U.S.C. §§ 1251–1387, and the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321–4370H. The Burlington Northern Santa Fe (BNSF) sought the permit to build a new rail/truck terminal near Kansas City. The district court denied Hillsdale’s motion for an injunction and granted summary judgment for the Corps and BNSF.

The Tenth Circuit first determined that Hillsdale’s NEPA claims were not prudentially moot. Because the new facility was not yet complete, if the court found the Corps’s environmental assessment was defective and remanded, the Corps could require additional mitigation or make other changes to the permit.

The Tenth Circuit then reviewed the challenge to the § 404 Clean Water Act permit. A properly issued permit requires a determination by the Corps that “there is ‘no practicable alternative’ to the proposed activity ‘which would have less adverse impact on the aquatic ecosystem.’” The Corps had reviewed seven alternative sites and rejected them all. The Tenth Circuit held that to rebut the presumption that an eliminated alternative was available, the Corps need not provide a specific level of detail for each, but must take “a hard look at the proposals and reach[] a meaningful conclusion based on the evidence.” Given the minor to moderate anticipated impact to the affected waters, the Corps did not have to extensively document why each eliminated alternative was impracticable and had met the required standard.

The court also rejected Hillsdale’s argument that the Corps had a duty to identify additional practicable sites that did not contain jurisdictional waters. To be practicable, an alternative site would have to satisfy BNSF’s site selection criteria, which included a 30-mile limit from its existing site. The Corps had identified seven additional sites within this limited geographical area and rejected them all. Hillsdale failed to identify an alternative within this area that the Corps failed to review.

Hillsdale also argued that the Corps failed in its duty to independently evaluate BNSF’s site selection criteria, particularly the 30-mile limit. The court found the Corps had questioned the criteria and that it was not entitled to reject BNSF’s study-based determination that a site outside the limit would have an economic impact on its customers.

The Tenth Circuit held that the Corps successfully rebutted the presumption that less environmentally damaging practicable alternatives to the selected site existed, and its CWA analysis was not arbitrary and capricious.

Hillsdale challenged the Corps’s failure to prepare an environmental impact statement under NEPA after conducting an environmental assessment. BNSF had entered into an agreement with the Kansas Department of Health and Environment requiring it to monitor dust emissions and mitigate them if they exceeded specified levels. The court affirmed the Corps’s finding of no significant impact from fugitive dust emissions because of this agreement. The court also rejected Hillsdale’s challenge to the Corps’s handling of other air emissions and its lack of an EIS concerning water pollution to a lake and wells in the area. The court affirmed the district court and upheld the Corps’s issuance of the § 404 permit.