Fifth Circuit Rejects Claim that Failure to Analyze Potential Future Phases of an Action as Interrelated Actions, Cumulative Effects, or Indirect Effects Violates the Endangered Species Act

The Court of Appeals for the Fifth Circuit rejected Endangered Species Act (ESA) challenges to the approval of a rail line serving a limestone quarry in Texas. The court upheld the determination by the Surface Transportation Board (STB) and the Fish and Wildlife Service (Service) to limit the effects analysis in the biological opinion to the impacts of the first phase of the multi-phase quarry project. The court concluded that the subsequent phases were not an interrleated action, a cumulative effect or an indirect effect of the approval of the rail line under the ESA.

In Medina County Environmental Action Association v. Surface Transportation Board, the STB granted an exemption allowing a railroad company to construct and operate a rail line and loading loop to service a proposed limestone quarry in Texas. The proposed rail line was part of Phase One in the development of a 1,760-acre tract. Phase One consisted of the proposed rail line and development of 640 acres as a quarry. There were no specific plans for further development, although it was indicated that the rest of the tract might be quarried in additional phases over the next 50 years, depending on market demand.

An environmental group challenged the exemption alleging that the STB and the Service failed to comply with their obligations under section 7 of the ESA because they did not assess the potential for jeopardy posed by the entire 1,760-acre tract on the endangered golden-cheeked warbler and listed karst invertebrates and only assessed the potential effects for Phase One. The plaintiff made three arguments: (1) the entire proposed development is an interrelated action to the proposed rail (2) the entire proposed development should have been evaluated as a cumulative effect of the proposed rail; (3) the entire proposed development is an indirect effect of the proposed rail. The court rejected all three claims.

The ESA section 7 regulations define an interrelated action as part of a larger action and depend[ing] on the larger action for [its] justification The court relied on the Service’s Consultation Handbook, which provides that a but for test should be used to determine whether an activity is interrelated with a proposed action. If the activity would not occur but for the proposed action, then it is interrelated. Here the question was whether but for the proposed rail line, the development of the subsequent phases of the quarry would occur. The environmental impact report had found that STB’s approval of the rail line was not required for any other action associated with the proposed quarry, and that the subsequent phases of the quarry could go forward with or without the proposed rail. Therefore, the court found that there was no but for causation and the subsequent phases of the quarry were not an interrelated action.

Cumulative effects are defined as those effects of future State or private activities, not involving Federal activities, that are reasonably certain to occur within the action area of the Federal action subject to consultation. The court focused on the term reasonably certain to occur in its analysis and explained that it was not reasonably certain that the subsequent phases of the quarry would be developed, and the long-term lease held on the property was not tantamount to a reasonable certainty.

Finally, the court rejected the environmental group’s argument that the proposed development of the entire tract should have been evaluated as an in indirect effect of the proposed rail line. Indirect effects are those that are caused by the proposed action and are later in time, but still are reasonably certain to occur. Again, the court explained that the development of the entire tract was not reasonably certain to occur.

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Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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