The Eleventh Circuit Court of Appeals has ruled that the 2009 Omnibus Appropriations Act (OAA), which Congress passed to generate jobs quickly during the recession, trumps NEPA and other federal and state procedural statutes. Miccosukee Tribe of Indians of Fla. v. U.S., No. 08-22966 (11th Cir. 9/15/10).
The lawsuit involves a mile-long bridge that would be built under the OAA as a project to create more jobs and would allow more water to flow beneath the Tamiami Trail highway into the Everglades. Plaintiffs filed a lawsuit against the project alleging that it violated NEPA, the Federal Advisory Committee Act, Water Resources Development Act, and Endangered Species Act. They argued that the U.S. Army Corps of Engineers (Corps) had failed to prepare adequate statements of environmental impact and failed to address the project’s threat to two endangered species. The district court held that the OAA superseded the statutes plaintiffs cited, and they appealed.
Relying on OAA text that provides “notwithstanding any other provision of law” the Corps shall cause the project to be constructed, the appeals court found that there was no subject matter jurisdiction. According to the court, “[p]rocedural statutes like NEPA do not apply when an agency has no discretion to act on a given matter.”