TALLAHASSEE, Fla. – The Biden administration said Monday it is still deciding whether to appeal a U.S. district judge’s ruling that the federal government improperly shifted permitting authority to Florida for projects that affect wetlands.
U.S. Department of Justice attorneys also urged a federal appeals court to reject a request by Florida to expedite handling of the case. While the Justice Department has not decided whether to appeal, Florida in April launched its own appeal of the ruling by U.S. District Judge Randolph Moss.
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In a court filing, Justice Department attorneys said U.S. Solicitor General Elizabeth Prelogar is responsible for deciding whether to challenge Moss’ ruling at the U.S. Circuit Court of Appeals for the District of Columbia and “has not yet decided whether to authorize an appeal in this case.” The Justice Department faces a June 11 deadline to submit a notice of appeal — but even that might not determine whether federal officials go through with an appeal, the filing indicated.
“While the United States anticipates filing a notice of appeal on June 11 to protect its right to appeal, the solicitor general’s decision-making process may continue past that date,” Justice Department attorneys wrote.
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Pushing back against Florida’s request for expedited handling of the case, the Justice Department attorneys added, “Florida should not be permitted to short-circuit a decision-making process whose prudential and institutional value has long been recognized.”
The case has been closely watched by business and environmental groups, as it affects permitting for a wide range of construction projects.
The U.S. Environmental Protection Agency approved the transfer of the permitting authority to Florida in December 2020, about a month before former President Donald Trump’s administration ended. The move made Florida only the third state, after Michigan and New Jersey, to receive the permitting authority,
Attorneys from the Earthjustice legal organization filed a lawsuit in 2021 against the federal government on behalf of the Center for Biological Diversity, Defenders of Wildlife, the Sierra Club, the Conservancy of Southwest Florida, the Florida Wildlife Federation, Miami Waterkeeper and St. Johns Riverkeeper. The state later intervened to defend the transfer.
In a February ruling, Moss found that actions by the EPA and the U.S. Fish and Wildlife Service in approving the shift violated the federal Endangered Species Act, and he vacated the transfer. In April, Moss issued a final judgment that cleared the way for appeals.
Florida last week filed a motion seeking expedited consideration of the case, including contending that the state “has suffered — and will continue to suffer — an irreparable injury from having its … program stripped away during lengthy appellate proceedings.”
“Removing that program from Florida’s control constitutes a classically irreparable harm by impinging on Florida’s sovereign interests in the conservation and management of water resources, land use, and wildlife — areas of traditional state responsibility,” the motion said.
But the Justice Department filing Monday opposed the motion and said courts “have long recognized that the United States’ deliberations over whether to appeal are extensive. … In addition, any decision in this case requires input from the Environmental Protection Agency, the U.S. Fish and Wildlife Service, the U.S. Army Corps of Engineers, and the National Marine Fisheries Service—as well as multiple sections within the Environment and Natural Resources Division of the Department of Justice.”
“The district court’s decision is 98 pages long and this case involves several nuanced, important issues of federal law regarding how federal agencies comply with the Endangered Species Act when authorizing actions whose impacts are long-running, geographically dispersed, and — in many cases — unknowable at the time of authorization,” the filing said. “In the federal government’s extensive experience litigating challenges to highly technical federal agency decisions, adequately briefing these issues could well warrant some extension of the normal briefing schedule, not a contraction of it.”
The appeals court last month rejected a request by the state for a stay of Moss’ ruling while the appeal plays out. Attorneys for the federal government and environmental groups opposed the requested stay.
In part, they said the U.S. Army Corps of Engineers had stepped in to handle permitting. The Army Corps reviewed permit applications before authority was shifted to Florida in 2020 and conducts such reviews in most other states.
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