An appeals court panel voted 2-1 this week to reject the arguments of environmental groups trying to overturn a federal permit that would allow Mosaic phosphate company to proceed with mining on more than 50,000 acres of Central Florida.
“In simple terms, we lost,” said Jacki Lopez of the Center for Biological Diversity, which joined with the People for Protecting Peace River, ManaSota-88 and Suncoast Waterkeeper in suing the U.S. Army Corps of Engineers and the U.S. Fish and Wildlife Service. She said the four groups are now considering whether to appeal Monday’s ruling.
The Mosaic permits cover parts of Hillsborough, Hardee, Manatee, and Polk counties. Mosaic spokeswoman Jackie Barron said the company was pleased with the ruling, which “demonstrates the strength and validity of our ... permit and the robust environmental review that accompanied it.”
The U.S. Army Corps of Engineers, which issued the permit, did not respond to a request for comment.
The lawsuit, filed in 2017, focused on the indirect environmental effects of mining, including Mosaic’s legally required practice of piling up the phosphogypsum waste from processing its mined materials into fertlizer.
The piles, better known as phosphogypsum stacks, rise some 200 feet high and contain slightly radioactive waste, and are topped with a large pond full of acidic water. Sometimes the waste water spills into rivers, causing pollution that kills fish. In 2016, a sinkhole opened beneath a Mosaic stack and drained all 215 million gallons of acidic water into the aquifer.
The permit the Corps issued to Mosaic did not take that into consideration, but should have, the suit contended.
A federal judge disagreed. He ruled that Mosaic’s phosphate mining is separate from their fertilizer processing plants, and thus the permit didn’t need to cover the processing plant’s production of waste material.
The environmental groups appealed, but two of the three appeals court judges said the same thing. In the majority opinion, written by Senior Judge John M. Rogers, the court held that the Corps lacked the authority to regulate waste from the manufacturing process.
But a dissenting opinion by Judge Beverly Martin contended that because the Corps’ responsiblity is keeping the nation’s waters clean, and the phosphogypsum stacks have had spills, “the Corps should have assessed the environmental impacts that leaky phosphogypsum stacks might have on ... the environment at large.”
Prior to issuing the Mosaic permit, the Corps produced a 2013 study that said creating those mines will destroy nearly 10,000 acres of wetlands and 50 miles of streams across the state, causing a “significant impact.”
But the study — prepared for the Corps by a consultant paid by the phosphate industry — contended miners would do such a good job of making up for the damage, through a multi-decade process called mitigation, that the impact would eventually not be noticeable. The study did not specify what sort of mitigation would be involved.
“Without mitigation, a lot of the effects would be significant — on wetlands, on groundwater, on surface water,” Corps senior project manager John Fellows said at the time. “No question about it, mining is an impactive industry.”