Petition for Writ of Certiorari — Missouri Coalition for the Environment v. Corps of Engineers of the United States Army
Supreme Court brief1989
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\ EFILED
| JUN 14 1888
‘b
Josepe F SFANIOL JR,
CLERK
No.
IN THE
Supreme Court of the United States
OCTOBER TERM, 1988
MISSOURI COALITION FOR THE ENVIRONMENT, ef ai.,
Petitioners,
VS.
Corps OF ENGINEERS OF THE UNITED STATES ARMY, ef ai.,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
Lewis C. GREEN
Bruce A. MORRISON
GREEN, HENNINGS & HENRY
314 North Broadway, Suite 1830
St. Louis, Missouri 63102
(314) 231-4181
Attorneys for Petitioners
St. Louis Law Printing Co., Inc., 13305 Manchester Road 63131 314-231-4477
QUESTIONS PRESENTED
1. Whether a federal agency that declines to prepare an en-
vironmental impact statement, on the basis of a determination
that its action will result in no significant environmental impact,
must articulate a ‘‘reasoned evaluation’’ of the factors relevant
to that determination.
2. Whether the court may refuse to review that determination
of no significant environmental impact on the ground that the
plaintiff is unable to ‘‘demonstrate that there were facts omitted
from the administrative record which, if true, would show that
the permitted project could have a substantial impact on the en-
vironment.’’
il
PARTIES TO THE PROCEEDING
The petitioners are Missouri Coalition for the Environment, a
corporation; League of Women Voters of St. Louis County, a
corporation; League of Women Voters of St. Louis, a corpora-
tion; The Open Space Council for the St. Louis Region, a cor-
poration;' Lee Streett; Martin E. Gardner, Jr.; Cornelius
Alwood; Donald F. Weiler; Stanley J. Adams; and Beverly
Toner.
The respondents are the Corps of Engineers of the United
States Army; John O. Marsh, Jr., Secretary of the Army;
Robert K. Dawson, Assistant Secretary of the Army for Civil
Works; Lt. Gen. E. R. Heiberg, III, Chief of Engineers; Col.
Robert M. Amrine, former District Engineer of the Kansas City
District, Corps of Engineers; Col. John H. Atkinson, III,
District Engineer of the Kansas City District, Corps of
Engineers, all in their official capacities; and Sverdrup Corpora-
tion, a corporation;’* Riverport, Inc., a corporation; and River-
port Associates, a limited partnership.
' None of these corporations has any parent or subsidiary corpora-
tion. The Missouri Coalition for the Environment is affiliated with
the Missouri Coalition for the Environment Foundation, a not-for-
profit corporation. The Open Space Council for the St. Louis Region
is affiliated with the St. Louis Regional Open Space Foundation, a
not-for-profit corporation. The two Leagues of Women Voters are
affiliated with the national League of Women Voters, and other local
Leagues.
? Petitioners believe that Sverdrup Corporation has a number of
subsidiary or affiliate corporations, but petitioners are unable to iden-
tify them.
M1
rABLE OF CONTENTS
Page
Opinions Below ...... ; l
Jurisdiction ...........
Statutory Provisions Involved 2
| 3
Reasons for Granting the Petition ......_. ) 7
RMON ect ecw ccaceee, 23
Appendix A, Opinion of the Court of Appeals ... la
Appendix B, Memorandum of the District Court 18a
Appendix C, Judgment of the District Court . Pith clears 46a
Appendix D, Order of the District Court ...... pede 47a
Appendix E, District Engineer’s Memorandum for Record. 4éa
Appendix F, Environmental Assessment ....__ ne fe S6a
Appendix G, Judgment of Court of | 80a
Appendix H, Orde Denying Rehearing
TABLE OF AUTHORITIES
Page
Cases:
Arizona Public Service Co. v. FPC, 483 F.2d 1275
tA CeTaRc chs vaeketkedadeasGaunen vanes 11
Baltimore Gas & Electric Co. v. Natural Resources
Defense Council, Inc., 462 U.S. 87 (1983) ..... 7,8,9,15,16
Boles v. Onton Dock, Inc., 659 F.2d 74 (6th Cir. 1981) . 13
Cabinet Mountains Wilderness/Scotchman’s Peak
Grizzly Bears v. Peterson, 685 F.2d 678 (D.C. Cir.
RR oe Rae eee SERS Re ae a ee 11,12
Como v. Pte, 401 01.5. 15S C0Gie) on ce eect nesses 14,15
Citizen Advocates for Responsible Expansion, Inc. v.
~ Dole, Tre tae Gao Cte Ot. Pe ee cs sas 13,20
City of Alexandria v. Helms, 728 F.2d 643 (4th Cir.
PN sce Ras A a NS AE Rk Ce eee kee 13
City of West Chicago, Illinois v. United States Nuclear
Regulatory Comm’n, 701 F.2d 632 (7th Cir. 1983) . 14
Committee for Auto Responsibility v. Solomon, 603
F.2d 992 (D.C. Cir. 1979), cert. den., 445 U.S. 915 11
Commonwealth of Massachusetts v. Watt, 716 F.2d 946
(2a ae, BR een renner rare yee 12
Crounse Corp. v. 1.C.C., 781 F.2d 1176 (6th Cir. 1986),
RCE Se as a eee ee eee 13
Foundation for North American Wild Sheep v. United
States Dep’t of Agriculture, 681 F.2d 1172 (9th
Cl: BE os hae ks wae ee Uke od Gece ees i4
Foundation on Economic Trends v. Heckler, 756 F.2d
oe oa ee. } Ragan eer Cdeaeets auger ts fZ.53
Fritiofson v. Alexander, 772 F.2d 1225 (Sth Cir. 1985) .. 13
(see v. Bove, €71 U.S. HOS8 CISSS) | re ei cca csc 18
Glass Packaging Institute v. Regan, 737 F.2d 1083 (D.C
Gils FOE b owe ea Re eae Seb eke Ce been eee 19,20
Greater Boston Television Corp. v. FCC, 444 F.2d 841
(D.C. Cir. 1970), cert. den., 403 U.S. 923 ........ 9
Hanly v. Kleindienst, 471 F.2d 823 (2d Cir. 1972), cert.
ROR, SER ses KA aR eae cae ee 12
Hanly v. Mitchell, 460 F.2d 640 (2nd Cir. 1972), cert.
OG ee A Ps a nn a ee acess vance 12
Harlem Valley Transportation Ass’n v. Stafford, 500
Pees a Lae GA RT ska xe oe awh O eee ven 12
Jones v. Gordon, 792 F.2d 821 (9th Cir. 1986)......... 14
Kleppe v. Sierra Club, 427 U.S. 390 (1976)......... 7,8,9,15,19
LaFlamme v. Federal Energy Regulatory Comm’n, 852
Fe Pe Ge SN oo a eee 14,17
Manasota-88, Inc. v. Thomas, 799 F.2d 6&7 (11th Cir.
Marsh v. Oregon Natural Resources Council, $7
U.S.L.W. 4508 (May 1, 1969)... . 0... can 7,8,10,15,19
Maryland-National Capital Park and Planning Comm’n
v. U.S. Postal Service, 487 F.2d 1029 (D.C. Cir.
cd EAR RE ree Pr 5 Th Hw bg ie ye eeu ne 11,13,19
A. L. Mechling Barge Lines, Inc. v. United States, 368
cs SEAT OEE tlie eu Geta iene ees 6
Vi
Natural Resources Defense Council v. Morton, 458 F.2d
EEN WANs SETED va kaa kek cK REALE Aes
Olmsted Citizens for a Better Community v. United
sates, 793 F.20 201 (Bth Cir. 1966) .........6..5.
Pacific Legal Foundation v. Andrus, 657 F.2d 829
SEO EMEEE se cect sak REC R CES Et eee
Ringsred v. Duluth, 828 F.2d 1305 (8th Cir. 1987)......
Save Our Wetlands, Inc. v. Sands, 711 F.2d 634 (Sth
6S), GA ea ara en Ath: CTU Gl 4 ase A
Save the Yaak Committee v. Block, 840 F.2d 714 (9th
2, RI err ears. eo ee ee ee
Securities and Exchange Commission v. Chenery Corp.,
EAE ie RC ED 66 ov 3 508 sa ae RL A
Sierra Club v. Hodel, 848 F.2d 1068 (10th Cir. 1988) ...
Sierra Club v. Marsh, 769 F.2d 868 (Ist Cir. 1985) .....
Sierra Club v. Peterson, 717 F.2d 1409 (D.C. Cir. 1983)
Sierra Club v. United States Dep’t of Transportation,
Tae se LO CAs Ns ROOD 6k ci eke tsesneeaes
The Steamboaters v. Federal Energy Regulatory Comm’n,
Soe eae Aon Coe CAT. PGBS) oc ccs cies ances
Town of Orangetown v. Gorsuch, 718 F.2d 29 (2d Cir.
Township of Lower Alloways Creek v. Public Service
Elec. & Gas Co., 687 F.2d 732 (3d Cir. 1982)......
Van Abbema v. Fornell, 807 F.2d 633 (7th Cir. 1986)...
Vermont Yankee Nuclear Power Corp. v. Natural
Resources Defense Council, 435 U.S. 519 (1978) ..
14
12
19,20
Winnebago Tribe of Nebraska v. Ray, 621 F.2d 269 (8th
Cir, 1900), cert. den., 449 U.5. B30... ccc cess 18,22
Statutes:
Be eS TEED oe R ERS eRe hee eRe GARE OER 2
Administrative Procedure Act, 5 U.S.C. §§ 702, 704
PR CURES ks KEL Cee eee 19
Cicon Water Act, 33: U.3.0.. © 1908 wees kccvenaeses 3
Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A) . 6
National Environmental Policy Act (‘‘NEPA’’), 42
he RE SOE cvs kas e ee eee lees ....passim
Regulations:
Council on Environmental Quality, 40 CFR § 1508.13 .. 10
Corps of Engineers 33 CFR §8§ 230.10 (1987), 230.11
(1966) ..... 6S Saba OE CREE OSA REC EES 10
Miscellaneous:
Council on Environmental Quality, 17th Annual
Report... ee es ee ae
No.
IN THE
Supreme Court of the United States
OcTOBER TERM, 1988
MisSOURL COALITION FOR THE ENVIRONMENT, ef a@l.,
Petitioners,
VS.
Cores Or ENGINEERS OF THE UNITED STATES ARMY, ef al.,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
Ihe Missour: Coalition for the Environment and associated
petitioners petition for a writ of certiorari to review the judg-
ment of the United States Court of Appeals tor the Eighth Ci
Cult in this case.
OPINIONS BELOW
Phe opinion of the court of appeals (fra, la-17a) is reported
al 866 F.2d 1025.) The opinion of the district court (fra,
l8a-4Sa) is reported at 678 F.Supp. 790.
JURISDICTION
Phe judgment of the court of appeals (if/ra, 80a) was entered
March 24, 1989. The court of appeals denied the petition for
sae, ba
rehearing or rehearing en bane on March 17, 1989 (infra, 82a).
The jurisdiction of this Court is invoked under 28 U.S.C. §
1254(1).
STATUTORY PROVISIONS INVOLVED
Section 102 of the National Environmental Policy Act
(NEPA) of 1969, 42 U.S.C. 4332, provides, in relevant part:
The Congress authorizes and directs that, to the fullest
extent possible: . . . (2) all agencies of the Federal Govern-
ment shall —
(C) include in every recommendation or report on pro-
nosals for legislation and other major Federal actions
significantly affecting the quality of the human environ-
ment, a detailed statement by the responsible official on —
(i) the environmental impact of the proposed ac-
tion,
(ii) any adverse environmental effects which cannot
be avoided should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses
of man’s environment and the maintenance and
enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments
of resources which would be involved in the proposed
action should it be implemented.
(E) study, develop, and describe appropriate alternatives
to recommended courses of action in any proposal which
involves unresolved conflicts concerning alternative uses of
available resources;
a
STATEMENT
Petitioners seek review of a divided court of appeals decision
affirming a district court’s determination that the Army Corps
ot Engineers had fully complied with NEPA when the Corps’
District Engineer decided that no environmental impact state-
ment was required in association with his final determination re-
evalualing a revised project.
In 1983 the non-governmental defendants proposed to con-
struct an industrial park to be known as ‘‘Riverport,’’ in the
floodplain of the Missouri River, on ihe western border of St.
Louis County, Missouri, thirty miles upstream from the junc-
tion of that river with the Mississippi River (infra, 2a, 56a). This
site is located within some 22,000 acres of floodplains and
wetlands on the St. Louis County side of the Missouri River,
commonly known as the Missouri Bottoms (infra, 2a). Because
the proposed development included construction of a 4100-foot
levee, 800 feet of which would be built in wetlands, Riverport
Associates applied to the District Engineer for a permit to
discharge fill in wetlands pursuant to § 404 of the Clean Water
Act of 1977, 33 U.S.C. § 1344 (infra, 3a).
While the District Engineer was reviewing the permit-applica-
tion, the United States Fish and Wildlite Service (F WS) submit-
ted to the District Engineer copies of press reports of plans of
Si. Louis County, Missouri, to build a 70,000-seat domed
stadium in Riverport, leading the Corps to inquire of the
developer about plans for the stadium (IX AR 4906; X AR
5149-51). On March 29, 1985, the developer responded that
‘“‘we have no plans to develop a stadium in the Riverport pro-
ject’”’ (Jt. Ex. 205).
On April 29, 1985, the District Engineer issued his En-
vironmental Assessment (EA) and his Finding of No Significant
Impact (FONSI) (infra, 56a, 79a). On May 16, 1985, the
District Engineer issued a permit to discharge fill in wetlands in
association with the construction of an “industrial park’’ (fra,
3a).
Sy os
_ Within fifteen days after the permit was issued, St. Louis
County officials met with executives of the developer to revive
the proposal for the stadium in Riverport (Jt. Exs. 157, 151,
152, 159). In December, 1985, the St. Louis County Council
approved a contract to acquire 100 acres of land in Riverport, in
order to build the 70,000-seat domed stadium there (VIII AR
4155-57). Additional acreage in the floodplains and wetlands
would be acquired for construction of parking lots for 9900
vehicles outside the area protected by the levee (infra, 48a). On
December 16, 1985, the District Engineer met with officials of
the developer and St. Louis County, and announced that he was
re-evaluating the permit in light of changed circumstances (i-
fra, 26a).
On June 25, 1986, some of the plaintiffs in this case filed suit
in the federal court (Riverport J), challenging the procedure
followed in granting the § 404 permit and challenging the pro-
posed inclusion of the stadium in the project (infra, 10a, 27a).
After the district court dismissed claims relating to the stadium
on the ground that they were not ripe for review, that suit was
settled with a consent decree by which the plaintiffs reserved
their rights to assert all claims and allegations concerning the
stadium and related parking lots outside the levee (infra, 10a).
The consent decree further provided that the District Engineer
would complete his re-evaluation of the revised project, and **as
a result of that re-evaluation, the Corps will make a final deter-
mination on the matter’’ (I AR 93).
The District Engineer resumed his re-evaluation of he revised
project, which had been suspended pending the litigation. He
issued an order prohibiting construction of the stadium (1 AR
204, 207) until his re-evaluation was concluded. On June 22,
1987, the District Engineer issued his ‘‘Memorandum tor
Record’’ (MFR) to record the results of his re-evaluation (infra,
4a, 48a). In support of his determination not to suspend,
revoke or modify the permit, he ‘‘concluded that the change of
environmental impacts due to the revised project’ did not war-
ee
rant any further action (infra, Sia). Comparing the impacts of
the revised project with those of the original proposed industrial
park, he concluded that the revised project would result in
potentially significant changes in only two of twenty-eighi en-
vironmental impacts addressed in the EA, namely, economic
and recreational impacts, and concluded that those two changes
warranted no further action (infra, S5la). He commented on
four other environmental concerns: alternative sites, highway
access, air quality, and cumulative impacts (infra, Sla-5Sa).
On July 30, 1987, this suit was filed, claiming that the re-
evaluation violated various statutes, including NEPA (infra,
Sa). The complaint alleged, inter alia, that the District Engineer
had failed to articulate a reasoned explanation of his determina-
tion that the revised project wonld result in no significant im-
pact, that certain significant impacts would result, that the
District Engineer’s finding of no practicable alternative was not
supported by the evidence, and that the ultimate determination
was arbitrary and capricious. After trial, the court ruled that
since the Corps had ‘‘considered’’ the various claims of en-
vironmental impacts (infra, 29a-4la), the Corps had fulfilled its
obligations under NEPA. Accordingly, the district) court
dismissed the complaint.
The court of appeals affirmed, one judge dissenting. The
court agreed that the Corps was required to comply with NEPA
in conducting its re-evaluation. Without deciding whether the
District Engineer had provided an adequately reasoned explana-
tion why environmental impacts would not be significant, or
whether he had set forth adequate findings to justify his conclu-
sion, or whether any findings were supported by the evidence,
the court held that the Corps staff had fulfilled the statutory
obligations by ‘‘considering’’ various alleged impacts (infra, 9a,
13a-14a). The court held:
The question before us ts not, as the Coalition urges,
Whether the MFR contains the requisite convincing reasons
cies vi
to stand on its own, but whether, under the appropriate
standard of review, the determinative finding in the MFR
is Sustainable on the administrative record made.
’
Infra, 9a. That ‘‘determinative finding’? of no significant im-
pact is to be sustained, notwithstanding the absence of any
reasoned evaluation of the relevant factors, the court ruled, if
the administrative record indicates that ‘‘the agency has con-
siderd the environmental consequences before taking action”’
(infra, 13a). The court further held that it would not “‘reach the
question of whether the agency’s decision not to prepare an EIS
was reasonabie’’ because, in its view, petitioners had failed “‘to
demonstrate that there were facts omitted from ihe ad-
ministrative record which, if true, would show that the permit-
ted project could have a_ substantial impact on the
environment’’ (infra, 13a, 12a).
Judge Fagg dissented on the ground that the proposal to build
a domed stadium in Riverport is moot (fra, 15a-17a).°
A petition for rehearing or rehearing en bane was denied (in-
fra, 82a).
’> Mootness is not one of the questions presented in this petition,
because the question of mootness is factbound and less significant
than the questions presented here. Mootness of the proposal to build
a stadium in Riverport would not moot the questions presented in this
petition. If Judge Fagg is correct, the case should be remanded to the
district court with directions to vacate the District Engineer’s decision
(infra, 17a). A.L. Mechling Barge Lines, Inc. v. United States, 368
U.S. 324, 329, 331 (1961). In that event, petitioners, pursuant to the
prayer of their complaint, would be entitled to recover their costs, fees
and expenses pursuant to 28 U.S.C. § 2412(d)(1)(A) (Equal Access to
Justice Act), ‘Sunless the court finds that the position of the United
States was substantially justified.’ The court of appeals has already
ruled (erroneously) that the position of the United States not only was
substantially justified but was indeed correct. That ruling would
preclude recovery unless it is reversed. Accordingly, a ruling which
simply vacates the Corps’ decision as moot would not moot the ques-
tions presented in this petition.
a,
REASONS FOR GRANTING THE PETITION
The court of appeals has departed from the teaching of
Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976)
(hereinafter ‘‘K/eppe’’) and Baltimore Gas & Electric Co. v.
Natural Resources Defense Council, Inc., 462 U.S. 87, 97-98,
105 (1983) (hereinafter ‘‘Baltimore Gas’’). The January, 1989,
decision of the court of appeals also conflicts directly with this
Court’s May 1, 1989, decision in Marsh v. Oregon Natural
Resources Council, 57 U.S.L.W. 4504, 4509-11 (hereinafter
‘““ONRC’’), illustrating the fundamental procedure of judicial
review Of agency action under NEPA, a procedure followed by
all other circuits. The decision of the court of appeals permits
an agency in the Eighth Circuit to evade NEPA. The decision
insulates from effective judicial review the agency determina-
tion that no EIS is required by NEPA, on the basis of two
holdings. First, the court of appeals incorrectly held that an
agency determination not to prepare an EIS need not be sup-
ported by a statement of reasons why potential environmental
effects are insignificant (infra, 9a). Second, in a corollary
holding, the court of appeals incorrectly held that, before a
plaintiff may obtain judicial review of an agency determination
not to prepare an EIS, the plaintiff must ‘‘demonstrate that
there were facts omitted from the administrative record which,
if true, would show that the permitted project could have a
substantial impact on the environment”’ (infra, 12a).
This clear deviation by the court of appeals from, and its ex-
plicit rejection of, established precedent has immense practical
significance. Most agency compliance with NEPA consists of
the “threshold determination’? whether or not to prepare an
Bee
EIS, rather than the preparation of EIS’s.* Effective judicial
review of this threshold decision is essential to preserve NEPA’s
‘“cweeping commitment to ‘prevent or eliminate damage to the
environment and biosphere’ by focusing government and public
attention on the environmental effects of proposed agency ac-
tion’? (ONRC, 57 U.S.L.W. at 4507).
1. Section 102(2)(C) of NEPA directs that a federal agency
proposing an action that may significantly affect the quality of
the human environment must prepare a detailed statement on
“the environmental impact of the proposed action.”’ 42 U.S.C.
4332(2)(C). This requirement serves two purposes: first, il
obligates the agency to consider the environmental conse-
quences of the proposed action; and second, it ‘‘inform{s} the
public that [the agency] has indeed considered environmental
concerns in its decisionmaking process.’’ Baltimore Gas, 462
U.S, at F7.
This Court has established the standard of review of an agen-
cy determination not to prepare an EIS:
The only role for a court is to insure that the agency has
taken a “hard look’? at environmental consequences, it
cannot ‘‘interject itself within the area of discretion of the
executive as to the choice of the action to be taken.”
Natural Resources Defense Council v. Morton, 458 F.2d
827, 838 (1972).
Kleppe, 427 U.S. at 410 n.21. Through the reference to NRDC
‘ EPA’s Office of Federal Activities estimates that EA’s (determin-
ing not to prepare an EIS) outnumber EIS’s by a ratio ranging from
20:1 to 40:1. Even lawsuits complaining of a refusal to prepare an EIS
outnumbered lawsuits complaining of the sufficiency of an EIS by 310
1 in 1985, and substantial margins generally. See 17th Annual Report
of Council on Environmental Quality 240-42. According to a
telephone conversation with a Policy Advisor of the Corps of
Engineers, in fiscal year 1985 the Corps of Engineers acted on 11,582
permit applications, but prepared only 15 EIS’s relating to those ap-
plications.
—_
v. Morton, this Court incorporated the District of Columbia
Circuit’s explication of the term ‘‘hard look’’ in Greater Boston
Television Corp. v. FCC, 444 F.2d 841 (D.C. Cir. 1970), cert.
den., 403 U.S. 923:
The function of the court is to assure that the agency has
given reasoned consideration to all the material facts and
issues ... This calis for insistence that the agency articulate
with reasonable clarity its reasons for decision, and iden-
tify the significance of the crucial facts . . . [T]he findings
must cover all the substantial differences between the [par-
ties] . . . [T]he court’s rigorous insistence on the need for
conjunction of articulated standards and reflective find-
INS...
444 F.2d ai 851-52 (emphasis added). These points were re-
emphasized, with specific reference to NEPA litigation, by this
Court in Baltimore Gas, 462 U.S. at 97-98, 105 (1983):
NEPA has twin aims. First, it ‘places upon an agency the
obligation to consider every significant aspect of the en-
vironmental impact of a proposed action.’’ ... Second, it
ensures that the agency will inform the public that it has in-
deed considered environmental concerns in its decision-
making process . . . Congress . . . required only that the
agency take a “‘hard look’’ at the environmental conse-
quences before taking a major action. See Kleppe v. Sierra
Club, 427 U.S. 390, 410 n.21 (1976). The role of the courts
is simply to ensure that the agency has adequately con-
sidered and disclosed the environmental impact of its ac-
tions and that its decision is not arbitrary or capricious . .
Our only task is to determine whether the commission has
considered the relevant factors and articulated a rational
connection between the facts found and the choice made.
(Emphasis added.) Thus this Court has emphatically specified
the minimum requirements of articulated findings and reasons.
a
After the decision of the court of appeals, this Court il-
lustrated step by step the procedure to be followed on judicial
review of a determination not to prepare an EIS. In Marsh vy.
Oregon Natural Resources Council,’ 57 U.S.L.W. 4504 (May 1,
1989) this Court:
a. Insisted that
. courts [must] carefully review . . . the record and
satisfy . . . themselves that the agency has made a reasoned
decision based on its evaluation of the significance—or
lack of significance—of the new information. A contrary
approach would not simply render judicial review generally
meaningless, but would be contrary to the demand that
courts ensure that agency decisions are founded on a
reasoned evaluation ‘‘of the relevant factors.”’
57 U.S.L.W. at 4509;°
b. Identified a Corps document responding to public
demands for an EIS (a ‘Supplemental Information Report,’’ or
‘“SIR’’) as the document to examine to search for that reasoned
evaluation (id. at 4509);
* In ONRC this Court reviewed an agency decision not to prepare a
supplemental EIS, a determination which is, for purposes of judicial
review, ‘‘similar to the decision whether to prepare an EIS in the first
instance.’” 57 U.S.L.W. at 4508.
* The requirement that such a document be made available is spelled
out in the regulations of the Council on Environmental Quality that a
finding of no significant impact be set forth in ‘ta document . . . brief-
ly presenting the reasons why an action .. . will not have a significant
effect on the human environment and for which an environmental im-
pact statement therefore will not be prepared.’’ 40 C.F.R. § 1508.13.
See also Corps regulations in effect in June, 1987, 33 C.F.R. § 230.10
(1987) and revised regulations adopted February 3, 1988, 33 C.F.R.§
230.11 (1988).
| yo
c. Identified the Corps’ explanations in that SIR responding
to the plaintiffs’ concerns (id. at 4509-19); and
d. Determined that responses were rational, and supported
by evidence (id. at 4509-11).
If this guide had been availabie, the court of appeals might
have followed this procedure, and reached a different result.
Further, the decision below conflicts with the decisions of
every other circuit which has addressed the procedure of judicial
review Of an agency determination not to prepare an EIS. A
sampling of cases from other circuits is set forth in the
footnote,’ all holding that the 4gency must furnish a convincing
’ Decisions of other circuits reviewing agency determination that no
EIS is required:
District of Columbia Circuit
Arizona Public Service Co. v. FPC, 483 F.2d 1275, 1282 (D.C. Cir.
1973) (‘The minimum requirement . . . is for the agency to supply a
statement of reasons why it believes that an impact statement is un-
necessary’’)
Maryland-National Capital Park and Planning Commission vy. U.S.
Postal Service, 487 F.2d 1929, 1039-40 (D.C. Cir. 1973) (per Leven-
thal, J.) (“an ‘assessment’ statement must provide convincing reasons
why a construction project with ‘arguably’ potentially significant en-
vironmental impact does not require [an EIS] . . . First, did the agency
take a ‘hard look’ at the problem, as opposed to bald conclusions . . .
Second, did the agency identify the relevant areas of environmental
concern?, . . . Third, as to problems studied and identified, does the
agency make a convincing case that the impact is insignificant?’’)
Committee for Auto Responsibility v. Solomon, 603 F.2d 992, 1003
n. 46 (D.C. Cir. 1979) (per curiam), cert. denied, 445 U.S. 915 (‘‘we
deem it important that the agency state its reasons for not preparing
an EIS’’)
Cabinet Mountains Wilderness/Scotchman’s Peak Grizzl ly Bears v.
Peterson, 685 F.2d 678, 681-82 (D.C. Cir. 1982) (per Robb, J.) (‘‘four
criteria for reviewing an agency’s decision to forego preparation of an
EIS: (1) whether the agency took a ‘hard look’ at the problem; (2)
whether the agency identified the relevant areas of environmental con-
cern; (3) as to the problems studied and identified, whether the agency
eo
statement of reasons why there will be no significant en-
made a convincing case that the impact was insignificant, and (4) if
there was impact of true significance, whether the agency convincingly
established that changes in the project sufficiently reduced it to a
minimum’’)
Sierra Club v. Peterson, 717 F.2d 1409, 1413 (D.C. Cir. 1983) (per
Mackinnon, J.) (reaffirms ‘‘four-part test’? of Cabinet Mountains,
supra)
Sierra Club v. United States Dep’t. of Transportation, 753 F.2d
120, 127 (D.C. Cir. 1985) (per Bork, J.) (reaffirms ‘four criteria’’)
Foundation on Economic Trends v. Heckler, 756 F.2d 143, 151, 154
(D.C. Cir. 1985) (per Wright, J.) (‘traditional norms of reasoned de-
cisionmaking ... ‘hard look’... . provide sufficient evidence and anal-
ysis,” reaffirming Cabinet Mountains and Sierra Club v. Peterson)
First Circuit
Commonwealth of Massachusetts v. Watt, 716 F.2d 946, 951 (Ist
Cir. 1983) (“EA did not contain enough information or analysis to in-
form the Secretary of the magnitude of the change in environmental
harm’’)
Sierra Club v, Marsh, 769 F.2d 868, 880, 881 (Ist Cir, 1985) (We
find the explanations offered by the agencies as to why these impacts
are not significant unpersuasive ... conclusion , . . is not supported or
explained’’)
Second Circuit
Hanly v. Mitchell, 460 F.2d 640, 647 (2nd Cir. 1972), cert. denied,
409 U.S. 990 (‘perfunctory and conclusory language simply does not
suffice’’)
Hanly v. Kleindienst, 471 F.2d 823, 834, 836 (2d Cir. 1972), cert.
denied, 412 U.S. 908 (‘‘a finding in the matter by GSA is essential . . .
In view of the Assessment’s failure to make findings . . . we remand
the case’’)
Harlem Valley Transportation Ass'n v. Stafford, 500 F.2d 328, 337
(2d Cir. 1974) (agency ‘decision on this matter must be sufficiently
reasoned so that a reviewing court can determine whether or not it was
arbitrary or Capricious’’)
Town cf Orangetown v. Gorsuch, 718 F.2d 29, 35 (2d Cir. 1983),
cert. den., 465 U.S. 1099 (‘‘whether the environmental impact assess-
ment contains the type of reasoned elaboration required . . . ‘hard
look’... whether the agency has convincingly documented its deter-
mination of ‘no significant impact’’)
a .
vironmental impact. The court of appeals has expressly rejected
Third Circuit
Township of Lower Alloways Creek v. Public Service Elec. & Gas
Co., 687 F.2d 732, 741 (3d Cir. 1982) (‘whether an ‘agency has sup-
plied convincing reasons why potential impacts are truly
insignificant’’’)
Fourth Circuit
City of Alexandria v. Helms, 728 F.2d 643, 647 (4th Cir. 1984)
(agency ‘carefully assessed the . . . impact on energy consumption
and air quality’’)
Fifth Circuit
Save Our Wetlands, Inc. v. Sands, 711 F.2d 634, 644 (Sth Cir. 1983)
(‘If the agencies engaged in this analysis and reasonably concluded on
the basis of their findings . . .’’)
Citizen Advocates for Responsible Expansion, Inc. vy, Dole, 770
F.2d 423, 434 (Sth Cir. 1985) (‘‘mere perfunctory or conclusory
language will not be deemed to constitute an adequate record and can-
not serve to support the agency’s decision not to prepare an EIS,
Maryland-National Capital Park & Planning Commission vy, United
States Postal Service, 487 F.2d 1029, 1039 & 1040 (D.C. Cir. 1973)...
an agency’s decision not to file an EIS will be analyzed on the basis the
the agency’s findings . . .’’)
Fritiofson v, Alexander, 772 F.2d 1225, 1236 (Sth Cir. 1985) (“An
EA... should also be sufficient to demonstrate reasoned decision
making. See Foundation on Economic Trends v. Heckler, 756 F.2d
143, 154 (D.C. Cir. 1985)... . ‘faJn [EA] that fails to address a signifi-
cant environmental concern can hardly be deemed adequate for a
reasoned determination that an EIS is not appropriate’’’)
Sixth Circuit
Crounse Corp. v. 1.C.C., 781 F.2d 1176, 1193-94 (6th Cir. 1986),
cert. den., 479 U.S. 890 (‘‘‘hard look,’”’ citing Sierra Club v. Peter-
son, 717 F.2d 1409 (D.C. Cir. 1983); ‘the most thorough analysis
possible’’)
Boles v. Onton Dock, Inc., 659 F.2d 74, 76 (6th Cir. 1981) (‘‘a well
reasoned determination’’)
Pacific Legal Foundation yv. Andrus, 657 F.2d 829, 841 (6th Cir.
1981) (“The purpose of requiring a statement of reasons is to evaluate
whether the agency’s decision is arbitrary and whether or not it is sup-
ported’’)
="
the holdings of all these circuits.
The court of appeals declined to follow these established prin-
ciples of judicial review. Relying solely on a misinterpretation
of Camp v. Pitts, 441 U.S. 138, 142-43 (1972) (infra, 9a), the
court held that the agency need not articulate its findings or ra-
tionale. Rather, the court of appeals held that the question on
judicial review is ‘‘whether, under the appropriate standard of
review, the determinative finding in the MFR is sustainable on
the administrative record made’’ (infra, 9a). Rejecting the
Seventh Circuit
City of West Chicago, Illinois v. United States Nuclear Regulatory
Comm'n, 701 F.2d 632, 651 (7th Cir, 1983) (°NRC explained the
reasons for its determination’)
Van Abbema vy. Fornell, 807 F.2d 633, 637 (7th Cir, 1986) (Corps
‘substantially evaluated possible threats to public health and safety
_ made rational decisions’’)
Ninth Circuit
Foundation for North American Wild Sheep v. United States Dep l
of Agriculture, 681 F.2d 1172, 1178 (9th Cir, 1982) C’prime statement
of reasons . . . failed to address certain crucial factors’’)
The Steamboaters v. Federal Energy Regulatory Comm'n, 759 F.2d
1382, 1393 (9th Cir. 1985) (‘agency must supply a convincing state
ment of reasons why potential effects are insignificant’)
Jones v. Gordon, 792 F.2d 821, 828 (9th Cir. 1986) C*agency must
provide a reasoned explanation of its decision’’)
Save the Yaak Committee v. Block, 840 F.2d 714, 718 (9th Cir.
1988) (‘‘convincing statement of reasons’’)
LaFlamme vy. Federal Energy Regulatory Comm'n, 852 F.2d 389,
399 (9th Cir. 1988) (‘convincing statement of reasons’)
Tenth Circuit
Sierra Club v. Hodel, 848 F.2d 1068, 1093 (10th Cir. 1988) (*We
agree with the Ninth Circuit's view,” citing LaFlamme and Slfeam-
boaters, supra)
Eleventh Circuit
Manasota-88, Inc. v. Thomas, 799 F.2d 687, 691 (11th Cir. 1986)
(‘articulated a rational connection between the facts found and the
choices made’’)
ee
direction given by this Court in Baltimore Gas, the court of ap-
peals ruled that the ‘‘appropriate standard of review’’ is
whether “‘the agency has considered the environmental conse-
quences before taking action’’ (infra, 13a). The court of ap-
peals has thus eliminated the fundamental precepts that the
agency “‘disclose .. . the environmental impact of its actions
and that its decision is not arbitrary or capricious,’’ and that the
agency ‘‘articulate .. . a rational connection between the facts
’
found and the choice made.’’ Baltimore Gas, supra, 462 U.S.
at 97-98, 10S.
The reliance by the court of appeals on Camp v. Pitts, 411
U.S. 138, 142-43 (1972), for the proposition that the agency
need not state its reasons for its finding of no significant impact
is misplaced. First, Camp v. Pitts concerned the National Bank
Act, which requires no findings (411 U.S. at 140), Later NEPA
decisions in Aleppe, Baltimore Gas and ONRC establish the
agency's duty to articulate a rational connection between the
facts found and the choice made under NEPA. Second, aside
from NEPA, the question whether the agency must articulate its
rationale was not before this Court in Camp v, Pitts. The court
Of appeals in Camp had ruled that “the Comptroller’s ruling
was ‘unacceptable’ because ‘its basis’ was not stated with suffi
clent clarity to permit judicial review,’’ a ruling which was not
even challenged in this Court. 411 U.S. at 139-40. This court
could not, and did not. rule that, even aside from NEPA, the
agency need not articulate its findings and rationale with clarity.
Rather, this Court deeided that, if further explanation of the
Comptroller’s rationale was needed, then the trial court should
not hold a triai to determine the Comptroller’s reasoning, but
rather ‘‘the comptroller’s decision must be vacated and the mat-
ter remanded to him’’ (411 U.S. at 143), a remedy which peti-
tloners seek here.
The need to articulate the reasons why each of the various en-
vironmental impacts will not be significant is vital in NEPA
litization, tis the agency head (or his agent)—not the staff file
mee Sik os
clerks who gather thousands of documents—who must deter-
mine that the air pollution impact, the surface water run-off im-
pact, and other impacts will not be significant. It is his finding
of no significant impact and his rationale, not a warehouse of
documents, which must be set forth in a form which permits
knowledgeable review by the courts. Further, NEPA requires
disclosure of the environmental impacts and the official’s find-
ings to the public, in a form which enables the public to assess
the findings and respond. Finally, the environmental conse-
quences of the proposed action must be before the agency of-
ficial, and in a form which enables them to be considered by
him, when he makes his ultimate “‘public interest’? decision
(e.g., to grant or deny a permit).
Nevertheless, the court of appeals ruled that the District
Engineer need not even make any findings, much less articulate
his reasons for his conclusion that the revised project will not
cause any significant impact. The Corps has complied with
NEPA, according to the Eighth Circuit, if the administrative
record indicates that the staff has ‘‘considered”’ such matters as
air pollution, water pollution, and the like.’ The Ninth Circuit
has pointed out that a consequence of the Eighth Circuit’s rule
is that
* The court of appeals asserted (/fra, 13a) that ‘the sheer volume
of the administrative record in this case is evidence that the Corps gave
environmental effects the type of consideration required unde!
NEPA,” citing Bal/timore Gas, 462 U.S. al 98. The court of appeals
misread page 98, and stopped short of page 99. All this Court said
about the ‘‘sheer volume’’ was that it was ‘impressive.’” This Court
held:
“Of far greater importance, the Commission’s Statement of
Consideration . . . shows that it has digested this mass ot
material and disclosed all substantial risks.
Thus the court of appeals erroneously directed its attention to thie
mass of documents collected, instead of the District Engineer’s written
statement, which is required to set forth the findings and reasons for
the conclusion that there will be no significant impact.
:
ae
the basis for [the agency’s] conclusion that the project will
not significantly affect the quality of the human environ-
ment, and therefore not require preparation of an EIS, can
only be ascertained by reviewing the voluminous agency
record. This kind of speculation regarding the basis for an
agency’s decision not to prepare an EIS is precisely what
NEPA was intended to prevent.
LaFlamme vy. Federal Energy Regulatory Comm’n, 852 F.2d
389, 399 (9ih Cir. 1988).
Not having required findings, and not having required a
reasoned explanation, the court of appeais altogether avoided
ihe question whether the agency’s explanation (dispensed with)
is reasonable, and whether the necessary findings (dispensed
with) are supported by the evidence. Thus the court of appeals
upheld the determination of no significant impact notwith-
standing the District Engineer’s explicit refusal to assess the air
pollution impact (infra, 53a-54a), his failure even to address
surface water run-off (infra, 48a-55a), his refusal to assess the
cumulative impacts of the stadium proposal and the remainder
of St. Louis County’s Master Plan to develop the 22,000 acres
of floodplains and wetlands known as Missouri Bottoms (infra,
54a), and his failure to assess the traffic impact in Maryland
Heights and elsewhere (infra, 52a-53a), which, according to the
only expert who studied it, will be ‘‘disastrous’’ (II Tr. 123).
This decision is not a harmless aberration. It authoritatively
reaffirms a series of decisions in which the Eighth Circuit has
evolved its own standard of judicial review of NEPA cases,
without regard to applicable decisions of this Court and the
other circuits. Throughout this decade, the Eighth Circuit has
stated that, in reviewing a determination not to prepare an EIS,
the court will look only to determine that the agency ‘‘con-
sidered’’ a subject of environmental concern. The Eighth Cir-
cull has not demanded that the agency explain its reasoning, or
that the explanation make sense, or that the findings be sup-
ae
ported by the evidence. E£.g., Ringsred v. Duluth, 828 F.2d
1305, 1307 (8th Cir. 1987); Olmsted Citizens for a Better Com-
munity v. United States, 793 F.2d 201, 204 (8th Cir. 1986); Win-
nebago Tribe of Nebraska v. Ray, 621 F.2d 269, 272 (8th Cir.
1980), cert. den., 449 U.S. 836. In their briefs and petition for
rehearing before the Eighth Circuit, petitioners urged the court
of appeals to reject these prior declarations as dicta, and join
the other circuits in applying the principles set forth by this
Court, but the court of appeals emphatically affirmed its own
rule of judicial review in NEPA cases.
This unique Eighth Circuit rule bars judicial review of an ar-
bitrary, irrational agency decision, based on no findings at all,
or on findings contradicted by all the evidence available, if the
agency collects documents to support the proposition that the
agency ‘‘considered’’ the impacts complained of by the public.
This is a radical rule, abrogating the responsibility of the
judiciary to protect the people from arbitrary agency action.
2. The court of appeals also erred in its corollary, or alter-
native, holding that ‘‘the initial burden of proof is upon the
challenging party to demonstrate that there were facts omitted
from the administrative record which, if true, would show that
the permitted project could have a substantial impact on the en-
vironment”’ (infra, 12a). Ruling that petitioners had failed to
sustain that burden, the court of appeals declined to ‘‘reach the
question of whether the agency’s decision not to prepare an EIS
was reasonable’’® (infra, 13a).
This Court has not countenanced the erection of such a bar-
rier to the courthouse. If a plaintiff is aggrieved by agency ac-
* Some courts of appeals have utilized the ‘‘reasonableness’’ stan-
dard, and some the ‘‘arbitrary and capricious’’ standard, in reviewing
agency determinations of no significant impact. See Gee v. Boyd, 471
U.S. 1058, 1059-60 (1985) (White, J., dissenting). In this case, the
court of appeals declined to ‘‘rea~* the question,’’ however it may be
formulated.
a
tion, the door to the courthouse is opened by the Administrative
Procedure Act, 5 U.S.C. §§ 702, 704, 706. This Court has ruled
simply that the validity of an agency’s refusal to prepare an EIS
‘*properly is before us, for the petitioners [government officials]
have made it clear they do not intend to prepare such a State-
ment.’’ Kleppe v. Sierra Club, 427 U.S. 390, 409 (1976).
Similarly, in ONRC this Court did not demand ‘‘facts omitted
from the administrative record,’’ but instead reviewed the
validity of the Corps’ explanations of its reasons for determin-
ing that no supplemental EIS was required, on the basis of
evidence in the administrative record. 57 U.S.L.W. at 4509-11.
The Eighth Circuit alone raises this barrier to judicial review.
This rule conflicts not only with the applicable decisions of this
Court, but also with the decisions of all other circuits. For ex-
ample, none of the cases cited in note 6, supra, acknowledges
any such barrier to judicial review.
The party challenging an agency determination not to prepare
an EIS has never been required to demonstrate fo the reviewing
court that facts ‘‘omitted from the administrative record”’
would show that the project could have a significant impact. In
the proceedings before the agency, a person who contends that
an EIS is required bears the burden of directing the agency’s at-
tention to the possibility of a significant impact. If he fails to
‘inform the [agency] of the risk,’’ on judicial review the court
may refuse to set aside the agency’s determination of no signifi-
cant impact. E.g., Glass Packaging Institute v. Regan, 737 F.2d
1083, 1093 (D.C. Cir. 1984), cert. den. 469 U.S. 1035. Cf. Ver-
mont Yankee Nuclear Power Corp. v. Natural Resources
Defense Council, 435 U.S. 519, 553 (1978). However, if that
potential impact has been brought to the attention of the agen-
cy, then the agency must evaluate it, and on judicial review the
burden rests on the agency to ‘‘make a convincing case that the
impact is insignificant.’’ Maryland-National Capital Park &
Planning Comm’n vy. U.S. Postal Service, 487 F.2d 1029, 1040
(D.C. Cir. 1973). The only ‘‘burden’’ which the plaintiff bears
we
on judicial review is ‘‘the initial burden of alleging facts that
show that a project would affect significantly some human en-
vironmental factor.’’ CARE vy. Dole, 770 F.2d 423, 432 (Sth
Cir. 1985). The plaintiff can allege facts included in the ad-
ministrative record, or facts ‘‘omitted from the administrative
record,’’ or both. The ruling of the court of appeals, that plain-
tiffs must demonstrate facts ‘‘omitted from the administrative
record,”’ is wholly incompatible with fundamental principles of
administrative law and of NEPA.
This incompatibility may be illustrated by two hypothetical
cases:
a. A diligent citizen puts his evidence before the agency, and
demonstrates a significant environmental impact, but the agen-
cy arbitrarily decides there will be none. On judicial review,
that citizen cannot demonstrate facts ‘‘omitted from the ad-
ministrative record,’’ so the Eighth Circuit will not ‘‘reach the
question’? whether the agency decision was arbitrary or
capricious. |
b. A lethargic citizen, or Johnny-come-lately, puts nothing
before the agency, but in court demonstrates facts ‘‘omitted
from the administrative record,’’ showing the possibility of a
significant impact. He receives a full-scale review.
A rule which penalizes diligence and rewards lethargy has lit-
tle appeal. See Vermont Yankee Nuclear Power Corp. v.
NRDC, 435 U.S. 519, 553 (1978). Cf. Glass Packaging Institute
v. Regan, 737 F.2d 1083, 1093 (D.C. Cir. 1984), cert. den. 469
U.S. 1035.
This incompatibility is also illustrated by the plain facts of
this case. The District Engineer declined to assess the air pollu-
tion impact (infra, 53a-54a),'° and altogether failed to mention
the impact of surface water run-off into the wetlands (infra,
48a-55a),'' but nevertheless determined that no EIS is
required.'? Because the plaintiffs had, in the court’s view, failed
to demonstrate facts ‘‘omitted from the administrative record,”’
the court of appeals refused to review whether the District
Engineer’s determination was arbitrary or capricious.
‘© The former Staff Director of the Air Conservation Commission
of Missouri testified without contradiction that the revised project
may have a major impact in emission of ozone precursors and would
delay attainment by the St. Louis Air Quality Control Region of the
ozone national ambient air quality standards.
' The FWS official testified, and all agreed, that placing a parking
lot for 9900 vehicles in the floodplain, surrounded by wetlands, would
present the potential for serious impacts (Tr. 192-94). However, this
potential is not mentioned in the District Engineer’s MFR (infra,
48a-55a). At the trial, the District Engineer testified that he expected
that his successor would do eatesisiiura.' about this, but he did not know
what (VI Tr. 29-33, 77-78).
‘* The procedural rulings of the court of appeals also enabled that
court to avoid ruling on plaintiffs’ other claims. For example, the
District Engineer made no effort to assess the traffic impacts in nearby
communities, notwithstanding the undisputed testimony of plaintiffs’
expert that a 70,000 seat stadium in this location, with extremely
limited road access, would bring ‘‘disaster’’ in those communities.
Nor did he consider the alternative downtown sites for a stadium ad-
vanced by civic leaders. He refused to assess the cumulative impact of
this revised project and other existing and planned projects to com-
plete St. Louis County’s Plan to develop the entire 22,000-acre
Missourt Bottoms, notwithstanding the testimony of the St. Louis
County Executive that ‘‘the stadium complex would become the
hook’’ for development of the floodplains and wetlands immediately
south of Riverport (IX AR 5017), and notwithstanding the demands
for an EIS made by all four interested agencies with environmental ex-
pertise (FWS, EPA, Missouri Department of Natural Resources and
Department of Conservation) (I Tr. 184, 189; IV Tr. 21; | AR 300,
301, 314; Jt. Exs. 1181, 1246).
ae, La
Like the first of the Questions Presented, this decision is not a
capricious aberration, but is rather the authoritative affirmation
of a consistent line of Eighth Circuit decisions, carving out for
the Eighth Circuit alone a unique rule, drastically curtailing
judicial review. Since 1980 the Eighth Circuit ‘as been steadily
and explicitly evolving this rule, as the court of appeals stated.
Infra, 12a. Ringsred v. Duluth, 828 F.2d 1305, 1307 (8th Cir.
1987); Olmsted Citizens for a Better Community v. United
States, 793 F.2d 201, 204 (8th Cir. 1986); Winnebago Tribe of
Nebraska v. Ray, 621 F.2d 269, 271 (8th Cir. 1980), cert. den.,
449 U.S. 836. The validity of this rule, and the binding force of
those prior Eighth Circuit decisions, were fully argued in the
Eighth Circuit. In its brief the Department of Justice vigorously
asserted that this anomalous rule is the rule in the Eighth Cir-
cuit. The Eighth Circuit unqualifiedly reaffirmed this rule as a
settled rule of its peculiar NEPA jurisprudence.
The unique rule evolved by the Fighth Circuit insulates from
judicial review the most arbitrary and capricious of agency deci-
sions, even those dependent on findings flatly contradicted by
the evidence. Although for the moment this rule appears to be
confined to NEPA litigation, it signals a broad retreat from the
fundamental norms of judicial review established by this Court
in Securities and Exchange Commission v. Chenery Corp., 318
U.S. 80, 87, 90 (1943). The decision effectively ends judicial
review of agency determinations not to prepare an EIS in the
Eighth Circuit. Given the disposition of the Corps and many
other agencies toward NEPA, the decision substantially
devitalizes NEPA in the Eighth Circuit.
—e?
— ;
CONCLUSION
To bring order to the law of judicial review in NEPA cases,
and to uphold the rule of law in the Eighth Circuit, this Court
should issue the writ of certiorari.
Respectfully submitted,
Lewis C. Green
Bruce A. Morrison
Green, Hennings & Henry
314 North Broadway, Suite 1830
St. Louis, Missouri 63102
(314) 231-4181
& 6
ee ee oe eet
Aa. © ae
APPENDIX
9
a
— ja —
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 88-1382
Missouri Coalition for the Environment, a corporation;
League of Women Voters of St. Louis County, a corporation;
League of Women Voters of St. Louis, a corporation; The
Open Space Council for the St. Louis Region, a corporation;
Lee Streett; Martin E. Gardner, Jr.; Cornelius Alwood;
Donald F. Weiler; Stanley J. Adams; and Beverly Toner,
Appellants,
vs
Corps of Engineers of the United States Army; John O. Marsh,
Jr., Secretary of the Army; Robert K. Dawson, Assistant
Secretary of the Army for Civil Works; Lt. Gen. E.R.
Heiberg, III, Chief of Engineers; Col. John H. Atkinson, III,
District Engineer of the Kansas City District, Corps of
Engineers; Sverdrup Corporation, a corporation; Riverport,
Inc., a corporation; and Riverport Associates,
a limited partnership,
Appellees.
Appeal from the United States District Court
for the Eastern District of Missouri
(Submitted: November 14, 1988)
(Filed: January 27, 1989)
Before FAGG and WOLLMAN, Circuit Judges, and
WOODS,* District Judge.
* The Honorable Henry Woods, United States District Judge for
the Eastern District of Arkansas, sitting by designation.
ae a
ae
WOODS, District Judge.
The Missouri Coalition for the Environment, the individual
plaintiffs and the organizational plaintiffs, collectively referred
to herein as the ‘‘Coalition,’’ appeal from a final judgment of
the district court! upholding defendant United States Army
Corps of Engineers’ decision not to revoke, suspend or modify
a permit issued to the non-government defendants under Sec-
tion 404 of the Clean Water Act of 1977 (Federal Water Pollu-
tion Control Act Amendments of 1972), 33 U.S.C. §1344,
which authorized the discharge of dredged or fill material into a
wetland area. The district court rejected the Coalition’s
challenges brought under the National Environmental Policy
Act of 1969 (NEPA), 42 U.S.C. §4321 ef seq., and under
various other environmental statutes and regulations, finding
that the decision of the Corps was not arbitrary, capricious,
unreasonable or otherwise not in accordance with law. We af-
firm.
BACKGROUND
Because the district court’s exhaustive findings of fact and
conclusions of law are reported in Missouri Coalition for the
Environment, et al v. Corps of Engineers of the United States
Army, et al, 678 F.Supp. 790 (E.D.Mo. 1988), the relevant facts
need not be restated in great detail here. In 1983 defendants
Riverport Associates, a limited partnership, Riverport, Inc., its
general partner, and Sverdrup Corporation, a developer, pro-
posed to construct a commercial-retail-industrial park of a
nonspecific nature to be known as ‘‘Riverport.’’ The Riverport
site is located within a 22,000 acre floodplain north of the City
of St. Louis, Missouri near the junction of the Missouri and
Mississippi Rivers. The floodplain, commonly referred to as the
Missouri River Bottoms, presently contains various agricultural
' The Honorable William L. Hungate, United States District Judge
for the Eastern District of Missouri.
— 3a —
\
and wetland areas. Originally the Riverport plans included con-
struction of a 4,100-foot levee to protect the development from
a 500-year flood — an 800-foot section of which was to be built
across a wetland area. And since construction of this 800-foot
section involved the discharge of fill material into a wetland,
Riverport Associates was required to apply to the Corps for a
section 404 permit.’ With the exception of this permit require-
ment, there was no other federal involvement with the project.
In considering the permit application, the Corps initially con-
ducted an evaluation and environmenta! assessment (EA) of the
proposed Riverport development. The EA concluded with a
finding that construction of the levee could have no Significant
effect on the quality of the human environment.’ Based on this
finding, the Corps’ District Engineer determined that the permit
could properly be issued without first preparing an En-
vironmental Impact Statement (EIS).* The Section 404 permit
was thus issued by the Corps on May 16, 1985.
* Section 404 of the Clean Water Act of 1977, 33 U.S.C. §1344, for-
bids discharge of dredged or fill materials into ‘‘navigable waters’’
—defined as ‘‘waters of the United States’’ —unless authorized by the
Army Corps of Engineers. Fresh water ‘‘wetlands’’ are within this
definition and thus are subject to the Corps’ jurisdiction. United
States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985); 33
C.F.R. §323.2(a) (1987) and 33 C.F.R. §328.3(b) (1987).
‘An EA isa brief document which addresses the question whether a
project subject to a permit requirement could have Significant effects
on the environment. The EA must conclude either with a determina-
tion that an Environmental Impact Statement is required, or with a
finding of no significant impact (FONSI). 33 C.F.R. Part 230, Ap-
pendix B, §8(a) (1987).
* See Section 102(2)(C) of NEPA, 42 U.S.C. §4332(2)(C), which re-
quires all agencies of the federal government to include in every
recommendation or report on proposals for ‘‘major federal actions
significantly affecting the quality of the human environment’’ a
detailed Environmental Impact Statement.
= eee
In November, 1985 defendant St.Louis County, wherein
Riverport is located, announced its intention to purchase 100
acres within Riverport. The purpose of this acquisition was to
allow St. Louis County to substitute a domed football stadium
for certain of the originally planned retail, commercial and in-
dustrial facilities. In accord with its intention, St. Louis County
asked the Corps to reevaluate the issuance of its Section 404 per-
mit to determine whether the substitution would require the per-
mit to be revoked, suspended or modified under the Corps’
regulations.’ Acting on this request the Corps solicited evidence
and opinions from the parties, private organizations, individual
experts, local government officials, state agencies and federal
agencies as to what effects the proposed stadium would have on
the environment. The reevaluation process consumed a total of
sixteen months and generated an administrative record weighing
66 pounds. There was testimony that this was the most com-
prehensive reevaluation undertaken by the Kansas City District
in at least the last ter years.
On June 22, 1987 a ‘‘Memorandum For Record’’ (MER) was
issued to record the results of tne District Engineer’s revalua-
tion. As stated in the MER, if the District Engineer determined
that there was a significant increase in the scope of the permitted
activity, the changed circumstances and conditions would re-
quire that a new permit application be processed.° But if there
was no significant increase, then the reevaluation would be
limited to the question of whether modification, revocation or
suspension of the permit was required given considerations of
‘33 C.F.R. §325.7 (1987) permits the district engineer to reevaluate
the ‘‘circumstances and conditions of any permit’’ and ‘‘initiate ac-
tion to modify, suspend or revoke a permit as may be made necessary
by considerations of the public interest.”’
* See 33 C.F.R. §325.7(a) (1987) (significant increases in scope of
permitted activity will be processed as new applications).
pg, ge
the public interest.’ The MFR indicates that the District
Engineer found, first, that the addition of a stadium to River-
port did not significantly increase the scope of the permitted ac-
tivity, which was filling of wetlands; and, second, that the
potential impacts of the revised project were substantially
similar to those evaluated prior to issuance of the original per-
mit. Based on these findings, he then concluded that the chang-
ed circumstances did not require that the permit be modified,
suspended or revoked. It is this decision which permitted St.
Louis County to proceed with its plan to construct a domed
stadium.
In response the Coalition filed this action in the district court
on July 30, 1987 seeking declaratory and injunctive relief which
would, if granted, prevent construction of the proposed sta-
dium. Its primary allegation was that the Corps’ reevaluation
violated NEPA’s requirement that an EIS be prepared for ma-
jor federal actions significantly affecting the environment. But
also alleged were violations of the Clean Water Act (CWA), 33
U.S.C. §§1344 and 1365; the Fish and Wildlife Coordination
Act of 1934 (FWCA), 16 U.S.C. §662; the Endangered Species
Act (ESA), 16 U.S.C. §1531 et seqg.; the Clean Air Act (CAA),
42 U.S.C. §7506; and regulations promulgated pursuant to each
act. In addition, review was sought under the Administrative
Procedures Act (APA), 5 U.S.C. §701 et seq.
The district court conducted a five-day bench trial, at the con-
clusion of which it held in favor of the defendants on all claims.
Specifically, the district court ruled that the Coalition had failed
to meet its threshold burden of proof under NEPA, in that it
did not raise a substantial environmental issue based on facts
which were omitted from the record of the administrative pro-
ceedings. The district court also found that the Corps’ decision
not to revoke, suspend or modify its permit was not reviewable
under the APA but, even if it was, the decision was not ar-
See supra, n.§.
— 6a —
bitrary, capricious or otherwise not in accordance with law. The
remaining claims were all found to be without merit and are not
at issue here.
On this appeal the Coalition advances several bases for rever-
sal. At the outset, it maintains that this case is moot and that
the decisions below should be vacated because, subsequent to
the trial, the St. Louis football franchise moved to Phoenix,
Arizona. In the alternative, the Coalition argues that the MFR
was an inadequate decisional document upon which the Corps’
determination could be upheld; that the district court improper-
ly excluded certain intra-agency communications from its
review of the administrative record; that the district court ap-
plied the wrong standard of review under NEPA and that the
district court erroneously concluded that the Corps had com-
plied with NEPA’s procedural requirements. The Coalition
also argues that the Section 404 permit, by its own terms, does
not permit stadium construction, that it is in violation of a local
zoning ordinance and that it is in violation of Missouri's im-
plementation plan for the enforcement of federal air pollution
standards.
I. MOOTNESS
The Coalition urges us to hold that issues concerning the pro-
posed addition of a domed football stadium to Riverport are
moot because the St. Louis Football Cardinals have, since the
trial, moved to Phoenix, Arizona. They state that the Corps
had relied on representations made by the defendants to the ef-
fect that Mr. Bidwill, owner of the Cardinals, was willing to ex-
ecute a lease for the proposed Riverport Stadium and that
private financing was already in place. But, the Coalition
argues, because the Cardinals have left St. Louis, the Corps’
reevaluation no longer has an impact on anybody who is
presently planning, or is in a position to build a Riverport
stadium. They reason that, since the likelihood of building a
stadium is contingent upon the remote possibilities of attracting
—
investors and a new franchise, and because construction is, at
best, years away when relevant circumstances may have chang-
ed, the case is moot and the decisions below should be vacated.
We disagree with the Coalition’s position and hold that this
case ‘‘fits well within the classic exception to the mootness doc-
trine for disputes which are ‘capable of repetition, yet evading
review.’ ’’ Thomas v. Bennett, 856 F.2d 1165, 1168 (8th Cir.
1988) (citations omitted). In the absence of a class action, the
capable of repetition exception applies if ‘‘(1) the challenged ac-
tion was in its duration too short to be fully litigated prior to its
cessation or expiration, and (2) there was a reasonable expecta-
tion that the same complaining party would be subjected to the
same action again.’’ Murphy v. Hunt, 455 U.S. 478, 482 (1981);
Weinstein v. Bradford, 423 U.S. 147, 149 (1975). We are
satisfied that both of these conditions have been met.
St. Louis County has purchased, and still owns the proposed
Stadium site. In addition, it represents to this court that it is ac-
tively pursuing stadium development for Riverport and is seek-
ing a National Football League expansion franchise to locate
there. These representations, standing alone, may not be suffi-
cient to support a finding that there is a present, live controversy
between the parties, but when considered in overall context it
becomes clear that such a controversy does indeed presently ex-
ist. Cf. Cedar-Riverside Environmental Defense Fund v. Hills,
560 F.2d 377 (8th Cir. 1977) (but for intervening municipal
legislation, promoter’s express intent to seek financing and
developer’s intent to proceed with construction would have
been sufficient to present a live controversy).
There is more than a reasonable likelihood that the Coalition,
or those having identical interests, will pose continuing legal
challenges to prevent construction of the proposed stadium.
The Coalition does not dispute that it, or those in privity with it,
have already challenged the proposed stadium in three separate
lawsuits, and that they have organized a ‘‘No Dome’’ commit-
— 8a —
tee in opposition to the proposed stadium. Furthermore, the
Coalition admits that there is ‘‘concerted, unanimous opposi-
tion of the business and civic leaders of the St. Louis Communi-
ty’’ to construction of a stadium anywhere but in downtown St.
Louis.
If we were to hold this case moot now, the very real prospect
of litigation would hang like a dark cloud over the negotiations
between St. Louis County and poiential NFL franchisees. The
defendants note that the sixteen-month reevaluation and the
lengthy district court proceedings have already contributed to
the loss of the Cardinals Franchise. By using the threat of pro-
tracted litigation, calculated to have the maximum disruptive ef-
fect on negotiations, the Coalition would be able to accomplish
indirectly what it has not been able to achieve directly in the
proceedings below. And it would be able to do so time and
again without judicial review because, according to the Coali-
tion’s argument, each time it succeeded in scaring off a potential
franchise the case would again become moot.
Moreover, the Corps’ reevaluation was concerned only with
the potential environmental effects of a generic, domed
stadium. The Corps’ decision that a domed stadium would
have no impact on the environment materially different from
the proposed industrial park did not depend on the Cardinals or
any other specific team inhabiting that stadium. The Corps has
ruled that its 1985 permit does not foreclose construction of a
stadium; the defendants intend to build a stadium and the
Coalition intends to oppose it. The Cardinals’ departure does
not alter this set of circumstances, and it does not moot this
case. There is, accordingly, a present, live controversy before
us. E.g., Thomas v. Bennett, supra; Clark v. Brewer, 776 F.2d
226 (8th Cir. 1985); In Re Martin, 761 F.2d 472 (8th Cir. 1985);
Terry v. Penn Central Corp., 668 F.2d 188 (3rd Cir. 1981).
— Qa ._
Il. NEPA
A. The Administrative Record
The Coalition argues that the administrative ‘‘record’’ on
which we must base our review is the MER issued by the District
Engineer to record the results of his evaluation. And, because
the MFR does not contain a ‘‘convincing statement of reasons
why potential environmental effects are insignificant,’’ the
Corps’ decision not to prepare an EIS must be found to be
unreasonable. As a corollary to that argument, the coalition
complains also that the district court erred in allowing testimony
to ‘‘explain’’ the MFR because it was tantamount to post-hoc
rationalization which defeats NEPA’s purpose of insuring in-
formed, well-considered environmental decisions before the
fact. These arguments are easily rejected.
Both of the Coalition’s arguments are premised upon the
false assumption that our judicial review is limited to an ex-
amination of the six-page MFR. However, the question before
us is not, as the Coalition urges, whether the MFR contains the
requisite convincing reasons to stand on its own, but whether,
under the appropriate standard of review, the determinative
finding in the MER is sustainable on the administrative record
made. Camp v. Pitts, 411 U.S. 138, 142-43 (1972). And that
record includes the MFR, the EA and the full ten volumes of
documents compiled during the Corps’ reevaluation process.
In attempting to sort out and wade through the voluminous
administrative record, it was not an abuse of the district court’s
discretion to allow testimony of an explanatory nature. Sierra
Club v. U.S. Army Corps of Engineers, 771 F.2d 409, 413 (8th
Cir. 1985) (citations omitted). The district court did not at-
tempt to try the administrative proceedings de novo, but prop-
erly confined its inquiry to the question of whether the Corps’
decision was reasonable, based upon the administrative record.
See 678 F.Supp. at 800 (The question is whether a reasonable
person could reach the same result the Corps reached on the
— 10a —
same evidence.) (emphasis added). Since the district court did
not create a ‘‘new record’’ on which to base its findings, we find
no error. Sierra Club, supra.
With respect to the state of the record, the Coalition argues
that the district court erroneously denied its motion to compel
the Corps to produce requested documents. The documents in
question concern certain intra-agency recommendations and
preliminary decisions made by agency personnel in connection
with the Corps’ 1985 decision that an EIS need not be prepared.
But because the propriety of the original permit was not before
the district court, we find no abuse of discretion in denying the
Coalition’s discovery motion.
The Coalition presented its challenge to the original permit in
an earlier lawsuit referred to herein as Riverport I. See 678
F.Supp. at 796. In that case the Coalition’s claims regarding the
domed stadium were dismissed without prejudice because the
Corps had not yet completed its reevaluation. However, ‘‘all
claims’’ against the original permit were dismissed with pre-
judice pursuant to a consent decree signed by the parties and ap-
proved by the court.* As a result, the Coalition is barred by
* The relevant portion of the consent decree provides:
When the Corps makes its final determination on the
reevaluation, this Consent Decree and Judgment shall not be
deemed to bar any future litigation concerning the Corps’ deter-
mination with respect to the domed sports stadium or related
parking lots outside the Riverport levee.
Plaintiffs’ rights to assert all claims and allegations concern-
ing the stadium and related parking lots outside the Riverport
levee are preserved, however, allegations and claims directed to
both Riverport (the original permit, including the modification
thereto as provided in Paragraph 7 herein) and the stadium shall
be preserved only to the extent directed to the stadium and
related parking lots outside the Riverport levee.
Except as provided . . . above, all claims asserted in plaintiff’s
complaint . . . are hereby dismissed with prejudice.
— lla —
principles of res judicata from asserting claims related to is-
suance of the original Riverport permit. See Brooks v. Barbour
Energy Corp., 804 F.2d 1144 (10th Cir. 1986) (settlement agree-
ment approved by court with prejudice is res judicata to later
lawsuit based on same occurrence). The documents the Coali-
tion would have included in the record did not concern the ques-
tion considered by the Corps on reevaluation — whether there
would be a significant increase in the scope of the permitted ac-
tivity — but rather concerned the wisdom of the Corps’ initial
decision to issue a permit. It was well within the district court’s
discretion to refuse to compel their production.
B. Standard of Review
NEPA requires preparation of an EIS only if the responsible
federal agency determines in the first instance that a ‘‘major
federal action’’ will ‘‘significantly affect the quality of the
human environment.’’ 42 U.S.C. §4332(2)(C); Ringsred v.
Duluth, 828 F.2d 1305, 1307 (8th Cir. 1987); Olmstead Citizens
for a Better Community v. United States, 793 F.2d 201, 204 (8th
Cir. 1986). The Corps presumed in this case that issuance of a
Section 404 permit was a major federal action.’ 678 F.Supp. at
799. But it determined from its original evaluation and EA that
granting the Section 404 permit for the originally proposed
Riverport project would not have a significant effect on the
quality of the human environment. And, on reevaluation, the
Corps concluded that the addition of a domed stadium to River-
port would not alter that determination since the addition
would not have an environmental impact materially different
from the originally proposed commercial-industrial-retail park.
Accordingly, an EIS was never prepared and the Corps decided
that the addition of a stadium did not require the original permit
* See 40 C.F.R. §1508.18(b)(4) (1987), Regulations of the Council
on Environmental Quality, which includes projects ‘‘approved by per-
mit’’ within the definition of ‘‘Major Federal Action.”’
— l2a —
to be revoked, suspended or modified.'® The Coalition takes
exception to these decisions and argues that NEPA required
preparation of an EIS under the facts of this case.
The standard under which we review an agency’s decision
that preparation of an EIS is not required by NEPA is well settl-
ed. The initial burden of proof is upon the challenging party to
demonstrate that there were facts omitted from the ad-
ministrative record which, if true, would show that the permit-
ted projeci could have a substantial impact on the environment.
Ringsred v. Duluth, supra at 1307; Olmstead Citizens for a Bet-
ter Community, supra at 204; Winnebago Tribe of Nebraska v.
Ray, 621 F.2d 269, 271 (8th Cir.), cert. denied, 449 U.S. 836
(1980); Minnesota Public Interest Research Group v. Butz, 498
F.2d 1314 (8th Cir. 1974 (en banc). If such facts are established,
and they are of sufficient significance to warrant shifting the
burden of proof, the agency must then demonstrate that its
negative determination was reasonable under the circumstances.
Id. The test is one of reasonableness — not whether the
agency’s determination was arbitrary, capricious, an abuse of
'° We agree with the district court that a decision not to modify, sus-
pend or revoke a Section 404 permit is one committed to the Corps’
absolute discretion and, as such, it is not reviewable under the Ad-
ministrative Procedures Act, 5 U.S.C. §701(a)(1)(2). Heckler v.
Chaney, 470 U.S. 821 (1985) (decision not to enforce is generally com-
mitted to agency’s absolute discretion and is presumptively
unreviewable under APA); Citizens to Preserve Overton Park vy.
Volpe, 401 U.S. 402 (1970) (discretionary decisions unreviewable
where statute so broad that in a given case there is no law to apply). In
reaching this conclusion we find, as did the district court, that neither
the Corps’ regulations nor the Clean Water Act mandate issuance of a
permit or the reevaluation of same. See Harmon Cove Condominium
Ass’n, Inc. v. Marsh, 815 F.2d 949 (3rd Cir. 1987) (§404 of CWA and
33 C.F.R. §325.7 promulgated thereunder authorize discretionary
Corps action). Cf. Dubois v. Thomas, 820 F.2d 943 (8th Cir. 1987)
(§505(a)(2) of CWA); Woodsmall v. Lyng, 816 F.2d 1241 (8th Cir.
1987) (§501, et seg. of Housing Act of 1949); Hill v. Group Three
Development Corp., 799 F.2d 385 (8th Cir. 1986) (§8 of Housing Act
of 1937).
— l3a —
discretion or otherwise not in accordance with law. Minnesota
Public Interest Research Group, supra at 1320.
NEPA is an essentialiy procedural act designed to insure that
the responsible federal agencies make fully informed and well-
considered environmental decisions. Vermont Yankee Nuclear
Power Corp. v. NRDC, 435 U.S. 519, 558 (1977); Strycker’s
Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227
(1979). It does not require that agencies reach decisions that we,
as judges, would have reached had we been members of the
decision-making unit of the agency. Jd. Rather, the court’s
only role is to insure that the agency has considered the en-
vironmental consequences before taking action. Strycker’s
Bay, supra at 227; Kleppe v. Sierra Club, 427 U.S. 390, 410,
n.21 (1976). Thus, if the challenging party is unable to meet its
initial burden of proof — to demonstrate that-the agency failed
to consider facts which, if true, would show that the permitted
project could have a substantial effect on the environment — we
need not reach the question of whether the agency’s decision not
to prepare an EIS was reasonable.
The record demonstrates that the Coalition failed to sustain
its burden. The sheer volume of the administrative record in
this case is evidence that the Corps gave environmental effects
the type of consideration required under NEPA. Baltimore Gas
& Electric Co. v. NRDC, Inc., 462 U.S. 87, 98 (1983). But of
more importance is what the record shows. The Corps con-
sidered twenty-eight different environmental and other impacts
potentially associated with the proposed stadium. 678 F.Supp.
at 801. This consideration took into account the views of the
Coalition and its experts, private organizations, the En-
vironmental Protection Agency, the Fish and Wildlife Service,
the Emergency Management Agency, the National Park Ser-
vice, the Missouri Department of National Resources, the
Missouri Department of Commerce, the Missouri Highway
Traffic Commission, the Missouri Attorney General’s Office
and the officials of surrounding municipalities. In all, the
— l4a —
Corps reviewed twenty-two depositions, thousands of
documents and held what amounted to a ‘‘seven-month public
hearing.’’ 678 F.Supp. at 796-97.
On the surface the Coalition appears to argue that the Corps
did not fully consider traffic and safety impacts, air pollution,
surface runoff, cumulative impacts of related developments,
controversial effects, alternatives to the Riverport site and
economic impacts. On closer examination, however, these
arguments actually take issue with the ‘‘correctness’’ of the
Corps conclusions, not with the procedural adequacy of the
Corps’ consideration. See Olmstead Citizens for a Better Com-
munity v. United States, 793 F.2d 201, 207, n.8 (8th Cir. 1986)
(the question is whether an agency ‘‘considered’’ environmental
effects, not the ‘‘correctness’’ of the decision). The record is
replete with evidence that each of these issues was before the
Corps. As to most of the issues raised, there was testimony
from not only the Coalition’s own experts but from neutral
government agencies. In any event, the record does not support
the assertion that the Corps failed to fully consider these im-
pacts. Because the Coalition has failed to meet its threshold
burden in this regard, we need not address the matter further.
il. LAWFULNESS OF STADIUM PROPOSAL
The last argument advanced by the Coalition on this appeal is
that the stadium proposal is unlawful in three respects. First,
the Coalition claims that the proposed stadium exceeds the ac-
tivities authorized by the Section 404 permit which allows filling
of wetlands incident to construction of an ‘‘industrial park.’’
We agree with the defendants’ contention that this argument is
frivolous. The activity permitted by the Corps is not the con-
struction of an industrial park or a stadium; it is the filling of
wetlands necessary to construct an 800-foot section of the levee.
The substitution of a stadium for some unspecified industrial
facility does not change the scope of that activity. Moreover,
the original EA contemplated that ‘‘entertainment facilities’’
— |Sa —
would be a part of Riverport. Clearly, a football stadium is an
entertainment facility.
Second, the Coalition argues that the proposed stadium is
prohibited by a local zoning ordinance. But the Coalition does
not allege that deviation from the local ordinance will necessari-
ly affect the ‘‘quality of the human environment.’’ Olimstead
Citizens for a Better Community v. United States, 793 F.2d 201,
207 (8th Cir. 1986). ‘‘In other words, to the degree that a given
zoning ordinance reflects social and economic, rather than
ecological, considerations, uses contrary to the ordinance do
not implicate the concerns underlying NEPA.’’ Jd. Because the
Coalition does not allege that the zoning ordinance is premised
on ecological considerations, it has not stated a claim cognizable
under NEPA. And because the Section 404 permit expressiy
provides that it ‘‘does not obviate the requirement to obtain
state or loca! assent required by law,’’ the alleged zoning viola-
tion has no relevance to our decision.
Finally, the Coalition claims that the proposed stadium
violates the air pollution standards set forth in the Missouri
State Implementation Plan for Ozone (SIP). See Environmen-
tal Protection Agency Regulations at 40 C.F.R. §51.18(a)
(1986). This argument is without merit. The Corps specifically
asked the Environmental Protection Agency (EPA), which is
charged with the responsibility for implementing the Clean Air
Act, 42 U.S.C. §7401, et seg., whether automobile emissions
associated with the proposed stadium were regulated by the
Missouri SIP. The EPA responded in the negative. Moreover,
the state agency which implements the SIP raised no objections
related to air pollution even though it expressed concern with
respect to five other environmental issues. We find under these
circumstances that the Coalition has shown no violation of
NEPA or the Clean Air Act.
Accordingly, the judgment of the district court is affirmed.
— loa —
FAGG, Circuit Judge, dissenting.
I believe the dispute we are called on to decide in this case has
become moot.
The United States Army Corps of Engineers (the Corps)
determined that altering the Riverport project plans to include a
domed stadium did not require the Corps to change its earlier
permit allowing St. Louis County to develop the project without
an environmental impact statement. The court suggests the
Corps’ decision ‘‘was concerned only with the potential en-
vironmental effects of a generic, domed stadium [and] * * * did
not depend on the Cardinals or any other specific team in-
habiting that stadium.’’ Ante at 8-9. I disagree.
The Corps’ Riverport permit decision was triggered by the
presence and real commitment of the St. Louis Cardinals foot-
ball team. With the relocation of the football Cardinals while
this appeal was pending, and with no replacement football team
on the horizon, the factual predicate for the Corps’ ad-
ministrative decision no longer exists. Due to this change in the
essential nature of the dispute that precipitated the Corps’
challenged action, I believe the appeal before us presents a pure-
ly abstract question and not a live case or controversy.
I also disagree with the court’s assessment that the cir-
cumstances of this case fit within the exception to the mootness
doctrine for controversies that are ‘‘ ‘ ‘‘capable of repitition, yet
evad[e] review.’ ’ ’? Ante at 7 (quoted citations omitted). |
have no quarrel with the idea that this controversy may resur-
face in the years to come. Even so, I see nothing about the pro-
cess for obtaining the Corps’ decision (one way or the other) on
the environmental impact statement that makes the process so
transient that its ‘‘short duration’’ will inherently escape
judicial review. See Weinstein v. Bradford, 423 U.S. 147, 149
(1975) (per curiam). On the contrary, if the county attracts
another professional football team to occupy a domed stadium
within the original Riverport project, there will be ample oppor-
tunity for the parties to seek review of an administrative deci-
sion that will then be based on current facts and circumstances.
— l7a —
To allow review now on a theory that ‘‘a football team is a
football team is a football team’’ in my view ignores the true
character of this facet of the project as it was submitted to the
Corps — that a professional football franchise was then ready
and financially prepared to occupy the stadium under specific
conditions. I am not willing at this point to presume those con-
ditions had no effect on the Corps’ permit decision or that dif-
ferent variables some time from now likewise will have no im-
pact on future Corps permit determinations.
In sum, the football Cardinals are out of the Riverport pro-
ject picture, and there is no understudy ‘‘anchor tenant’’
waiting in the wings. Obtaining a replacement team that is will-
ing to commit itself to a domed stadium within the Riverport
project is currently a matter of conjecture at best, see SEC v.
Medical Comm. for Human Rights, 404 U.S. 403, 406 (1972).
The key reason for considering a variance from the Corps’
original permit has disappeared. Consequently, the specific
dispute that was put before the Corps by the supporters and op-
ponents of a domed stadium is now moot. This being so, I
would remand the case to the district court for an order direc-
ting the Corps to vacate its challenged permit decision. See
A.L. Mechling Barge Lines, Inc. v. United States, 368 U.S. 324,
329, 331 (1961); Hollister Ranch Owners’ Ass’n v. FERC, 759
F.2d 898, 901-02 (D.C. Cir. 1985).
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS,
EIGHTH CIRCUIT.
— |8a —
APPENDIX B
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
No. 87-1397C(3)
Missouri Coalition for the Environment, et al.,
Plaintiffs,
Vs
Corps of Engineers of the United States Army, et al.,
Defendants.
MEMORANDUM
(Filed: January 8, 1988)
This matter is before the Court to determine the merits of
plaintiffs’ claim after a five-day trial before the Court sitting
without a jury.
INTRODUCTORY SUMMARY OF CLAIMS
Plaintiffs filed a complaint against several private entities,
federal officials, and the Corps of Engineers of the U.S. Army
(‘‘Corps’’) seeking declaratory and injunctive relief with respect
to the process used in and the outcome of the Corps’ re-
evaluation of a permit originally issued by the Corps under §404
of the Federal Water Poliution Control Act (“‘FWPCA’’), 33
U.S.C. §1344, to defendant Riverport Associates in May 1985.
The original permit allowed certain activities, not expressly in-
cluding nor prohibiting construction of a stadium, by the
private entity defendants on part of the Missouri River Bottoms
floodplains, including some wetlands, in St. Louis County,
Missouri (‘‘the Riverport area’’). The original permit was
modified on March 4, 1987. The Corps’ re-evaluation at issue
here resulted in a ‘‘Memorandum of Record,’’ issued June 22,
1987, that essentially allows the construction of a domed
— 19a —
stadium, and related parking facilities, in the Riverport area
pursuant to the original permit — without the processing of a
new application for a permit, and without suspension,
modification, or revocation of the original permit. Plaintiffs
allege that the Corps’ re-evaluation involved violations of Sec-
tions 404 and 505 of the FWPCA, 33 U.S.C. §§1344 and 1365;'
the National Environmental Policy Act of 1969 (‘‘NEPA’’), 42
U.S.C. §4321, et seq.; the Fish and Wildlife Coordination Act
of 1934 (‘SFWCA’’), as amended, 16 U.S.C. §662; the En-
dangered Species Act (‘‘ESA’’), 16 U.S.C. §1531, et seq.; the
Clean Air Act (“SCAA’’), 42 U.S.C. §7506(c); and the regula-
tions promulgated pursuant to each Act. In particular, plain-
tiffs contend the Corps failed properly to evaluate traffic con-
gestion and safety factors, air pollution factors, surface water
run-off from the parking lots, regional economic impacts, and
the cumulative impact of the purportedly piecemeal implemen-
tation of St. Louis County’s plan to develop the Missouri Bot-
toms. Additionally, plaintiffs urge the Corps should have
prepared an Environmental Impact Statement.
Defendants, including St. Louis County which intervened as
a defendant, deny liability, and urge the Corps’ re-evaluation
was not either unreasonable or arbitrary and capricious.
The principal question presented here is whether or not the
Corps acted arbitrarily, capriciously, or unreasonably concern-
ing the environment in this cause. The answer is no.
Having carefully considered the pleadings, testimony, ex-
hibits, stipulations, memoranda, and relevant record, the Court
makes and enters the following findings of fact and conclusions
of law.
' The claim under this statutory provision was dismissed by order
dated November 23, 1987. A claim that defendants’ conduct may
violate local zoning ordinances was also dismissed by that order.
— 20a —
Findings of Fact
1. Plaintiff Missouri Coalition for the Environment (‘‘Coali-
tion’’) is a corporation organized and existing under the Illinois
not-for-profit corporation laws, with its principal office in
Missouri.
2. Plaintiff The City of St. Louis is a municipal corporation
within the Eastern District of Missouri organized and existing as
a constitutional charter city pursuant to the Missouri Constitu-
tion.
3. Plaintiff League of Women Voters of St. Louis County is
a corporation organized and existing under the general not-for-
profit laws of the State of Missouri, maintaining its principal of-
fice in St. Louis County, Missouri.
4. Plaintiff The League of Women Voters of St. Louis is a
corporation organized and existing under the general not-for-
profit laws of the State of Missouri.
5. Plaintiff The Open Space Council for the Si. Louis Region
is a corporation organized and existing under the not-for-profit
corporation laws of the State of Missouri, with its principal of-
fice in the City of St. Louis, Missouri.
6. Plaintiff Lee Streett is a resident, property owner, and tax-
payer of St. Louis County, and a former member of the Board
of Directors of plaintiff Coalition.
7. Plaintiff Martin E. Gardner, Jr., is a resident, property
owner, and taxpayer of St. Louis County, and a former Presi-
dent of the Open Space Council.
8. Plaintiff Cornelius Alwood is a resident of St. Louis
County, Missouri.
9. Plaintiff Donald F. Weiler resides in the City of Maryland
Heights, Missouri, which is in St. Louis County.
— 2la —
10. Plaintiff Stanley J. Adams resides in the City of
Bridgeton, Missouri, which is in St. Louis County.
11. Plaintiff Beverly J. Toner resides in Maryland Heights,
Missouri. She is a property owner and taxpayer of St. Louis
County.
12. Plaintiff Mark D. Conner is a resident, property owner,
and taxpayer of the City of St. Louis, Missouri.
13. A. Defendant Corps is an agency of the United States
and a branch of the United States Army.
B. Defendant John O. Marsh, Jr., is the duly appointed
and acting Secretary of the Army.
C. Defendant Robert K. Dawson was in 1986 the duly
appointed and acting Assistant Secretary of the Army
for Civil Works.
D. Defendant Lt. Gen. E.R. Heiberg, III, is the duly
appointed and acting Chief of Engineers of the Corps.
E. Defendant Robert M. Amrine was in 1985, 1986, and
the first half of 1987, the duly appointed and acting
District Engineer for the Corps, Kansas City District
(hereinafter ‘‘district engineer’’). Defendant John H.
Atkinson, III, is his successor in that office.
These defendants are hereinafter sometimes collectively refer-
red to as the ‘‘Corps defendants.’’ In relevant part, the Corps
defendants, pursuant to delegations of authority by Congress
and by regulation, are charged with administration and enforce-
ment of §404 of the FWPCA, 33 U.S.C. §1344, subject to the
Guidelines of the United States Environmental Protection
Agency.
14. Defendant Riverport, Inc. and defendant Sverdrup Cor-
poration are corporations incorporated under the laws of the
State of Missouri. Defendant Riverport Associates is a Missouri
— 22a —
limited partnership. Defendant Riverport, Inc., is a general
partner thereof. These defendants will be referred to collective-
ly as ‘‘Sverdrup’’ or ‘‘the Sverdrup defendants.”’
15. Defendant St. Louis County, Missouri, is a first class
county operating under a charter form of government within
the Eastern District of Missouri. This defendant now owns the
property on which the proposed stadium will be built.
16. In the course of the trial, plaintiffs’ standing was conced-
ed.
ADMINISTRATIVE PROCEEDINGS CONCERNING
ORIGINAL PERMIT
17. On October 25, 1983, the Corps received a permit ap-
plication from Riverport Associates in connection with the
development known as ‘‘Riverport.’’
18. The Riverport site comprises approximately 450 acres in
Western St. Louis County, Missouri, east of the Missouri River
and south of I-70. This acreage contains wetlands and Missouri
River floodplains commonly referred to as the Missouri Bot-
toms.
19. The Riverport development as originally planned was to
include retail buildings, restaurants, entertainment facilities, of-
fice buildings, and industrial activities sharing a unified theme
and plan.
20. The application stated that Sverdrup would be construc-
ting a 4,100-foot-long levee designed to protect Riverport from
a 500-year flood.
21. Because an 800-foot-long portion of the levee crossed
some wetlands, the project required the Corps’ approval prior
to construction.
22. In relevant part, the aforementioned permit application
was filed under Section 404 of the FWPCA (also referred to as
— 23a —
the Clean Water Act of 1977), 33 U.S.C. §1344, which requires
a permit for the placement of fill in wetlands.
23. Upon review of the permit application, the Corps issued a
public notice on January 20, 1984. The notice informed federal,
state, and local agencies and the public of the Riverport permit
application, and requested comments thereon.
24. Numerous federal, state, and local agencies, as well as
private organizations and individuals, responded to the public
notice.
25. The comments addressed a host of potential environmen-
tal, engineering, and planning concerns, including, without
limitation, the following: wetlands, prime farmland, en-
dangered species, flooding and floodplain management, alter-
natives, and cumulative impacts.
26. On June 25, 1984, the St. Louis County Council approv-
ed two ordinances rezoning the Riverport site for use as propos-
ed. The zoning ordinances require Sverdrup to undertake a
number of specific commitments, including those designed to
minimize the impact of the new development on traffic.
27. On October 1, 1984, the Corps conducted a public hear-
ing on the Riverport application.
28. A large number of agencies, organizations, and in-
dividuals spoke or submitted comments at and after the hearing.
Among the organizations participating in the hearing were the
Missouri Coalition for the Environment, the Open Space Coun-
cil, and the League of Women Voters.
29. During the Corps’ review, Sverdrup modified the design
and construction plans for Riverport, reducing the amount of
wetlands impacted from 28 to 2.8 acres. In addition, the
modifications included Sverdrup’s commitment to add an addi-
tional 10 acres of wetlands by purchasing a 10-acre parcel river-
ward of the Riverport levee and creating new, higher quality
— 24a —
wetlands there. As a result of the modifications, the Corps con-
cluded that the wetland loss would be fully mitigated by increas-
ing the existing wetland acreage, as well as by enhancing
wetland quality and diversity. No other agency challenged that
conclusion. The Fish and Wildlife Service of the Department of
Interior (‘‘FWS’’) expressly approved the mitigation proposal.
30. On April 19, 1985, the Missouri Department of Natural
Resources (‘‘MDNR’’) issued a ‘‘water quality certification’’
for Riverport in accordance with the Clean Water Act of 1977,
33 U.S.C. $1251, et seq.
31. Pursuant to a Memorandum of Agreement between the
Departments of the Army and Interior under Section 404(q) of
the Clean Water Act, 33 U.S.C. §1344(q), the FWS may
‘‘elevate’’ (appeal) a proposed decision of the Corps to issue a
wetlands permit. When elevation is invoked, the final decision
of the Corps may not rest with the District Engineer. Instead,
his decision may be reviewed by higher level Army officials.
32. The FWS responded to the District Engineer’s proposed
decision by stating that the proposed permit conditions ‘‘will
adequately mitigate for the project’s impacts on fish and
wildlife resources,’’ so the FWS did not exercise its authority to
require reconsideration of the District Engineer’s decision by
higher level Corps officials.
33. The Environmental Protection Agency (‘‘EPA’’) stated
no objection to the proposed issuance of the Riverport permit.
34. On May 1, 1985, the Corps completed its evaluation of
the Riverport permit application, No. 2151, together with an
Environmental Assessment (‘‘EA’’) and Statement of Findings
pursuant to the National Environmental Policy Act (‘‘NEPA’’),
42 U.S.C. §4321, et seq. The Corps discussed the potential im-
pacts of the Riverport project upon the environment, and
specifically found that there would be no significant impacts.
Therefore, the Corps concluded an Environmental Impact
Statement (‘‘EIS’’) was not required.
— 25a —
35. The Corps’ District Engineer, Col. Robert M. Amrine,
summarized as follows the findings of the Corps’ public interest
review, pursuant to Section 404 of the Clean Water Act and the
Corps’ regulations thereunder:
I find that issuance of a Department of the Army permit to
Riverport Associates as prescribed by regulations publish-
ed in 33 CFR 320-330, is based on a thorough analysis and
evaluation of the various factors enumerated above; that
there are no reasonable alternatives available to the appli-
cant that will achieve the purposes for which the work is
being considered; that the work is in accordance with the
overall desires of the public as reflected in the comments of
State and local agencies and the general public; that the
work is deemed to comply with established State and local
laws, regulations, and codes; that there have been no iden-
tified, significant, adverse, environmental effects related
to the work; that issuance of this permit is consonant with
national policy, statutes, and administrative directives; and
that on balance the total public interest should best be serv-
ed by issuance of the Department of the Army permit.
36. The permit became fully effective on May 16, 1985, after
it was signed by both Sverdrup and the Corps.
37. As originally issued, the Riverport permit authorized
Sverdrup to discharge (a) approximately 53,600 cubic yards of
fill material into wetlands for construction of an 800-foot-long
portion of the 4,100-foot levee; (b) approximately 17 cubic
yards of rock for construction of a stilling basin and outfall
channel, and (c) a small quantity of fill for minor grading in
wetland areas to improve drainage.
THE INCLUSION OF A DOMED STADIUM IN RIVER-
PORT
38. In early 1985, the County Executive of St. Louis County
(‘‘the County Executive’’) proposed that a domed stadium be
built in St. Louis County to accommodate area sports concerns.
— 26a —
39. In February 1985, the County Executive approached
Sverdrup to inquire whether it would be interested in redesign-
ing the proposed Riverport development to include a domed
stadium. Sverdrup indicated it was not interested in having such
a stadium in Riverport.
40. In March 1985, the Corps asked Sverdrup whether its
plans for Riverport had changed to include a stadium. On
March 29, 1985, Sverdrup wrote to the Corps that it had no
plans to include a domed stadium in Riverport.
41. The County Executive returned to Sverdrup and persisted
with his proposal (by then in somewhat scaled-down form) for a
stadium in Riverport.
42. On November 12, 1985, the Corps learned that St. Louis
County {‘‘the County’’) proposed to acquire property at the
Riverport site for the construction of a domed stadium.
43. Following the County’s announcement in November
1985 of its proposal for a domed stadium in Riverport, and the
sale in December 1985 by Sverdrup to the County of 100 acres
within Riverport, some opposition was heard.
44. Asaresult of the proposed inclusion of a domed stadium
in Riverport, the Corps commenced a reevaluation of the cir-
cumstances and conditions of the original permit pursuant to
the Corps’ regulations, in particular 33 C.F.R. §325.7 (1987)
(‘‘reevaluation regulation’’).
45. Under the Corps’ reevaluation regulation, both in
language and in practice, the reevaluation process is extremely
informal. There are no procedural requirements (such as notice
and/or comment), and the method of proceeding is committed
to the discretion of each District Engineer in each case of
reevaluation.
46. The Corps requested additional information from Sver-
drup concerning the proposed location of a stadium within
— 27a —
Riverport, and additional parking facilities outside and south of
the Riverport levee.
47. Corps personnel inspected the site and identified several
wetland areas south of the Riverport project location.
48. The County furnished a drawing of its plans to locate the
stadium and adjacent parking, together with a letter asserting
(a) its intention to avoid disturbance of wetlands in its siting of
the parking facilities outside the levee; (b) existing roads were
adequate to serve the stadium; and (c) a levee to protect the ad-
ditional parking was not economically feasible since the pro-
bability of its flooding is remote.
49. Acopy of the information supplied by Sverdrup and the
County was furnished to the EPA, the FWS, the MDNR, and
the Missouri Department of Conservation (‘‘MDC’’).
50. During the reevaluation, the Corps examined the poten-
tial impacts of the proposed stadium, plus related parking
facilities both inside the levee (within the 100 acres purchased by
the County for the stadium) and outside the levee (approximate-
ly an additional 150 acres).
51. The Corps obtained numerous submissions from Sver-
drup and St. Louis County, as well as extensive comments from
federal, state, and local agencies, private organizations (in-
cluding plaintiffs and their experts), and individuals.
52. Before the District Engineer reached a final decision on
the stadium reevaluation, virtually the same plaintiffs as those
herein (except for the City of St. Louis and four individuals),
filed Missouri Coalition for the Environment v. Corps of
Engineers, No. 86-2229C(2) (E.D. Mo., filed June 25, 1986)
(‘‘Riverport I’’). That case was plaintiffs’ initial judicial
challenge to the issuance of the original permit and the propos-
ed inclusion thereafter of a domed stadium. The Court in that
case dismissed without prejudice plaintiffs’ complaint to the ex-
tent it addressed the domed stadium proposal, on the ground
— 28a —
such a claim was not ripe for review because the Corps had not
completed its reevaluation.
53. On March 4, 1987, in connection with the payment to
plaintiffs of $100,000 and the settlement of the claims remaining
in Riverport I, the Corps issued a permit modification authoriz-
ing the placement of fill in additional wetlands in connection
with (a) the construction of a haul road used to bring in
materials to build the levee, and (b) the widening of the Earth
City Expressway near the entrance to Riverport. The modified
permit also expanded upon and formalized a condition in the
original permit that Sverdrup create 13, rather than 10, acres of
new wetlands as mitigation for the wetlands being filled.
54. In the Consent Decree settling Riverport J, plaintiffs
dismissed with prejudice any and all claims against the issuance
of both the original Riverport permit and the above-mentioned
permit modification. Plaintiffs also reserved the right ‘‘to
assert all claims and allegations concerning the stadium and
related parking lots outside the Riverport levee.”’
55. In the consent decree, the parties also noted:
Special Condition WW [of the permit, as modified March
4, 1987] states: ‘‘The permittee agrees to ensure that the
quality of water entering the wetland mitigation area will
be such that it will not adversely affect the flora and/or
fauna that inhabit the area.’’ A question has arisen con-
cerning the construction of such language. By means of
clarification, the Corps intended in Special Condition WW
that Sverdrup take all reasonable steps under its control to
ensure that the surface water runoff from the Riverport
project will not contain contaminants or pollutants in
quantities sufficient to significantly threaten the existence
of any portion of the wetland ecosystem.
56. In March 1987, Corps officials requested yet additional
information concerning the possible need for additional road-
— 29a —
ways which might impact more wetlands, other developments
that might be planned for the area, and air quality.
57. The Corps requested considerable information from
Sverdrup and the County and received comments from, among
others, numerous federal, state, and local entities (i.e., the
FWS, the EPA, the Federal Emergency Management Agency,
the National Park Service, the MDC, the MDNR, the Missouri
Highway and Traffic Commission, the Missouri Attorney
General’s Office, the City of Florissant, St. Charles County, the
City of St. Louis Community Development Agency, the Mayor
of St. Louis, and the City of Maryland Heights). In addition,
the Corps received substantial input from plaintiff organiza-
tions, and numerous other organizations and individuals.
58. The Corps considered the 22 depositions and thousands
of documents and reports produced in Riverport I, which in-
cluded plaintiffs’ stadium claims, from the filing of the suit in
June 1986 through the close of discovery in January 1987 when
certain claims were dismissed for lack of ripeness.
59. The reevaluation process took some 16 months. This
‘*informal’’ procedure, which ran from December 1985 through
June 1987 (with a brief hiatus after Riverport ] was initially fil-
ed), generated an administrative record of some 66 pounds.
60. Mel Jewett, Chief of the Corps’ Regulatory Branch,
testified on deposition that this was the most comprehensive
permit reevaluation by the Kansas City District during at least
the last 10 years.
61. In challenging the procedure utilized by the Corps in the
present permit reevaluation, plaintiffs claim that there should
have been a ‘‘public interest review,’’ with a formal notice
issued and comment invited.
62. Under the Corps’ regulations, see, e.g., 33 C.F.R.
§§325.2, 325.3, a public interest review (which typically occurs
when an initial permit application is filed), involves the issuance
a
— 3a —
of a ‘‘notice’’ to interested agencies and individuals and the sub-
mission of such written comments as those noticed may choose
to offer. In this case, the Corps similarly invited comments
from all interested parties and sent copies of key cor-
respondence to them as well.
63. In the Corps’ discretion, it may or may not also involve a
public hearing. 33 C.F.R. §327.4 (1987). This case had what
amounted to a seven-month public hearing, featuring not only
lay speakers but a parade of experts (mostly plaintiffs’), pro-
viding deposition testimony and written reports and comments.
All of the arguments raised by plaintiffs in this lawsuit, and por-
tions of all of the experts offered by plaintiffs at trial, were con-
sidered by the Corps during the reevaluation process.
64. On June 22, 1987, the Corps issued a Memorandum for
Record based on the District Engineer’s conclusions, stating
that the inclusion of a domed stadium within Riverport required
neither a new permit nor a change in the existing permit. This
Memorandum of Review constitutes final agency action within
the meaning of the Administrative Procedure Act, 5 U.S.C.
§704.
65. The reevaluation under 33 C.F.R. §325.7 (1987) consisted
of a two-prong analysis: (a) whether there was a significant in-
crease in scope of the permitted activity from the original per-
mit, as modified, thereby requiring a new or separate permit, 33
C.F.R. §325.7(a)(1987); and (b) if not, whether action to
modify, suspend, or revoke the existing permit was necessary,
33 C.F.R. §§ 325.7(b)-(d)(1987).
66. First, the Corps found that there was no significant in-
crease in the scope of the permitted activity. The activity per-
mitted under the Riverport permit was the placement of fill in
wetlands, and neither the substitution of a stadium for other ac-
tivities within Riverport, nor the addition of parking facilities
outside the Riverport levee, involved the fill of any wetlands.
Thus, a new permit was not required.
— 3la —
67. Second, the Corps found that the proposed changes in
the Riverport project did not require a modification, revoca-
tion, or suspension of the Riverport permit because the poten-
tial environmental impacts of the revised project (the originally
permitted activity with the proposed domed stadium included as
part of the Riverport development) were substantialiy similar to
those thoroughly evaluated prior to the issuance of the original
permit.
68. In determining whether the permit should be modified,
suspended, or revoked in the public interest, the Corps con-
sidered twenty-eight different environmental and other impacts.
69. The District Engineer concluded that the revised project
would result in potentially significant changes in only two im-
pacts, recreational and economic.
70. The proposed stadium project would shift the location of
certain available recreation resources from downtown St. Louis
to the Riverport site.
71. The Corps reviewed an economic study prepared by
Team Four, Inc., and considered concerns expressed by the
Mayor of the City of St. Louis.
72. The District Engineer concluded that adverse economic
impacts felt in some locations are mitigated to some extent by
the beneficial impacts occurring in others.
73. The District Engineer concluded that the change in
economic and recreation impacts due to the revised project does
not warrant modification, suspension, or revocation of the
Riverport permit.
74. The Corps considered both practicable alternatives to the
stadium itself and to the revised project as a whole.
75. The Corps concluded that there were no practicable alter-
native sites for the revised project.
|
— 32a —
76. The Corps considered fully the views of plaintiffs’ traffic
expert, Paul C. Box. The Corps reviewed his deposition in
Riverport I, his initial written report, and his comments on
reports submitted by Sverdrup’s expert and St. Louis County.
77. The Corps also considered a report prepared for Sver-
drup by Wilbur Smith & Associates, an independent consultant
with a national reputation in traffic engineering, and a separate
report submitted by the St. Louis County Department of
Highways.
78. The Corps then asked the Missouri Highway and Traffic
Commission (‘‘MHTC’’) for its evaluation of the conflicting
conclusions of the experts. MHTC agreed with Sverdrup’s con-
sultant and the County that the existing road network, plus im-
provements thereto already underway, would adequately serve
the traffic generated by the stadium.
79. It is noteworthy that the many traffic experts are in
substantial agreement concerning the underlying data. They
diverge only in the conclusion they draw from the data.
80. Considering all the foregoing reports, the District
Engineer determined that the existing road system, augmented
by the improvements to 1-70 which the State is about to make,
the improvements to the I-70 interchange and a portion of the
Earth City Expressway that are part of the original Riverport
project, and the use of traffic management plans for stadium
events will provide minimally acceptable road access to the
revised project.
81. The Corps also considered the potential cumulative ef-
fects of the Riverport project in light of past, present, and
reasonably foreseeable future projects in the area.
82. The Corps noted that each of the reasonably foreseeable
future projects in the general area (i.e., roadway improvements
involving Route 115, Page Avenue, and the Earth City Ex-
pressway) are or will be subject to extensive environmental
review.
— 33a —
83. With respect to the air quality impacts of the revised pro-
ject, the Corps considered the facts that the St. Louis area has
not yet attained federal limitations for the pollutant ozone, and
that automobile emissions are a source of ozone pollution.
84. The Corps also reviewed information on air quality pro-
vided by the Missouri Coalition for the Environment, its expert
witness, and St. Louis County.
85. Both the Corps and the Coalition provided information
on air quality to the EPA, which is the federal agency responsi-
ble for implementing the Clean Air Act.
86. EPA responded to the Corps’ inquiries concerning air
quality by stating that there are no regulations at the federal
level that control indirect sources of air pollution such as auto-
mobile emissions, and that the Missouri State Implementation
Plan places no restriction on indirect sources of air pollution.
87. The District Engineer concluded that he would not
modify, suspend, or revoke the existing permit based on air
quality.
88. The Coalition wrote to the EPA outlining the Coalition’s
air quality concerns and asking it to take all steps necessary to
assure that the Riverport permit is revoked.
89. The EPA did not assert its veto authority concerning
either the issuance of the original Riverport permit or the Corps’
decision on reevaluation. Although the Corps is the federal
agency charged with issuing or denying permits for projects af-
fecting wetlands, the EPA may override the Corps’ decision if
the proposed activity ‘‘will have an unacceptable adverse
effect’? on the environment. 33 U.S.C. §1344(c).
90. The Corps contacted the National Park Service (‘‘NPS’’)
and confirmed that the Riverport development would not have
an adverse impact on the Lewis and Clark Trail.
— 34a —
91. The Corps looked at the impacts of floodplain develop-
ment and concluded that the addition of the stadium did not
result in significant impacts on the floodplain.
92. There is conflicting testimony of record as to the impor-
tance of the St. Louis County area as a bald eagle habitat. One
of the conditions of the original permit, a condition not chang-
ed through any modification or revision of the project insofar as
the available record indicates, states:
The permittee agrees to minimize disturbance to bald
eagle populations that may use the forested area adjacent
to the Missouri River by: (1) limiting construction of the
outfall channel to the spring and summer months; (2)
minimizing the clearing of large trees in this area; and (3)
siting industrial or commercial activities nearest this area
that would create the least traffic and human activity.
93. The District Engineer determined that the existing permit
would remain in effect and did not require modification,
suspension, or revocation as a result of the proposed stadium
project.
94. The proposed issuance of the original Riverport permit
was presumed to be a major federal action, and the Corps
prepared an EA. As a result of the EA, the Corps found that
the permit would not create significant environmental impacts
and, therefore, an EIS was not prepared.
95. In Riverport I, plaintiffs challenged the adequacy of the
Riverport EA and claimed that an EIS should have been
prepared. They later, on payment of $100,000, dismissed those
claims with prejudice.
96. In this case, by contrast, no Corps permit was issued or
even modified. The Corps simply conducted an informal pro-
ceeding known as a ‘‘reevaluation’’ and determined that the
substitution of a domed stadium for unspecified retail-
commercial-industrial activities required neither a new permit
— 3Sa —
nor a modification, revocation, or suspension of the existing
permit.
97. Although the Corps’ reevaluation regulation has no pro-
cedural mandates, and vests broad discretion ineach District
Engineer to handle each proceeding as he sees fit, the Corps in
this case conducted a comprehensive review.-The material issues
raised by plaintiffs in this suit were considered by the Corps dur-
ing the reevaluation process, which generated the weighty ad-
ministrative record said to contain 66 pounds. The opinion of
the experts named by the plaintiffs in this case were reviewed by
the Corps during its permit reevaluation. Colonel Amrine, a
First Division Infantry veteran of the Vietnam War, gave able
and persuasive testimony concerning the Corps’ thorough
evaluation of all concerns. His impartiality was clear and un-
questioned.
98. Did the Corps act arbitrarily, capriciously, or
unreasonably in issuing its reevaluation decision? The
thoroughness and breadth of the Corps’ review — particularly
in light of the complete lack of formal procedural requirements
— precludes plaintiffs from sustaining their rigorous burden of
proof.
Upon review of the reevaluation record and other relevant in-
formation here, it is not possible to find the Corps acted in an
arbitrary, capricious, or unreasonable manner in reaching its
reevaluation decision.
Plaintiffs offer criticism of the action or inaction of the
Corps, EPA, FWS, MDNR, MDC, MHTC, FEMA, NPS, and
St. Louis County government. It is a healthful American trait
to distrust government agencies — but to distrust them all at
once?
CONCLUSIONS OF LAW
A. The National Environmental Policy Act of 1969 (NEPA),
42 U.S.C. §4321, et seq., is essentially a procedural statute,
— 36a —
which seeks to ensure agency consideration of the environmen-
tal impact of a proposed action. Strycker’s Bay Neighborhood
Council, Inc. v. Karlen, 444 U.S. 223 (1980) (per curiam).
B. NEPA does
not require agencies to elevate environmental concerns
over other appropriate considerations .... Rather, it re-
quire[s] only that the agency take a ‘‘hard look’’ at the en-
vironmental consequences before taking a major action. .
. . The role of the courts is simply to ensure that the agency
has adequately considered and disclosed the environmental
impact of its actions and that its decision is not arbitrary or
Capricious.
Baltimore Gas & Electric Co. v. Natural Resources Defense
Council, Inc., 462 U.S. 87, 97-98 (1983) (citations omitted).
C. Section 102 of NEPA requires the preparation of an en-
vironmental impact statement (EIS) for any major federal ac-
tion significantly affecting the quality of the human environ-
ment. 42 U.S.C. §4332(2)(C).
D. Because the only reason Sverdrup required the original
Riverport permit was to fill certain wetlands, and because the
substitution of a stadium for other uses involved no additional
wetlands fill, no separate permit was found to be required.
Because the potential environmental impacts of the revised pro-
ject were determined not to be appreciably different from those
of the original project, the Corps found the existing permit need
not be modified, revoked, or suspended. The original decision
is not now before the Court and the Corps’ reevaluation deci-
sion worked no change in the status quo.
The test is not whether this Court would have reached the
same result on the same evidence. The question is whether a
reasonable person could reach the same result the Corps reach-
ed on the same evidence. The Court finds one could.
— 37a —
E. The Corps reasonably concluded under the reevaluation
regulation that the revised project would not ‘‘significantly in-
crease the scope of the permitted activity’’ and therefore would
not require a new permit, 33 C.F.R. §325.7(a) (1987).
F. Even assuming NEPA applies, judicial review of an agen-
cy’s compliance therewith is narrowly circumscribed:
NEPA, while establishing ‘‘significant substantive goals
for the nation’’ imposes upon agencies duties that are
‘‘essentially procedural.’’. . . /OJnce an agency has made a
decision subject to NEPA’s procedural requirements, the
only role for a court is to insure that the agency has con-
sidered the environmental consequences; it cannot ‘‘inter-
ject itself within the area of discretion of the executive as to
the choice of the action to be taken.’’
Strycker’s Bay Neighborhood Council, Inc., supra, 444 U.S. at
227-28 (emphasis added) (quoting from Vermont Yankee
Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558 (1978) and
from Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976)).
G. Where a proposed action, such as the issuance of a per-
mit, is a ‘‘major federal action,’’ the question for the agency is
whether the action will significantly affect the quality of the
human environment, and, therefore, require the preparation of
an EIS. When an agency determines that a proposed major
federal action will not significantly affect the environment and,
therefore, that an EIS is not required, the question for the
reviewing court is whether the agency’s determination was
reasonable. Winnebago Tribe of Nebraska v. Ray, 621 F.2d
269, 271 (8th Cir.), cert. denied, 449 U.S. 836 (1980).
H. Before the court need address the question of
reasonableness, however, the burden is on the plaintiff to make
a threshold showing that the agency failed to consider facts
which, if true, would constitute a substantial impact on the en-
vironment. /d.
— 38a —
I. Plaintiffs, in challenging the Corps’ decision not to
prepare an EIS, bear the burden of raising a substantial en-
vironmental issue based on facts which were omitted from con-
sideration in the administrative record. Olmsted Citizens for a
Better Community v. United States, 793 F.2d 201 (8th Cir.
1986).
J. In this case, the Corps considered an extremely broad
range of environmental impacts potentially associated with
Riverport prior to issuing the EA, statement of findings, and
permit in May 1985. The issues of alternative sites, cumulative
impacts, and secondary impacts such as traffic, air pollution,
and economic impacts were addressed by the Corps during its
lengthy review of the original Riverport permit application.
K. In this case, the Corps’ jurisdiction under Section 404 of
the Clean Water Act extends only to wetlands. The Corps’, jur-
isdiction was originally invoked because of an 800-foot portion
of a 4,100-foot levee (which has already been constructed under
the May 1985 permit). Moreover, although the levee was neces-
sary for the Riverport project, the revision of the project to
substitute a domed stadium for unspecified commercial-indus-
trial activities on 100 of the project’s 500 acres involves no fil-
ling of wetlands. Nevertheless, the Corps went far beyond its
limited jurisdiction and considered the environmental impacts
of the entire Riverport project, both originally and as revised. In
light of these facts, the plaintiffs have not sustained their thres-
hold burden of raising ‘‘a substantial environmental issue.”’
Winnebago Tribe of Nebraska v. Rayssupra 621 F.2d at 271.
L. Under Section 701(a) of the Administrative Procedures
Act, judicial review is not available to the extent that (1) statutes
preclude judicial review; or (2) agency action is committed to
agency discretion by law. 5 U.S.C. §701(a)(1)(2).
M. Section 701(a)(2) precludes judicial review of the Corps’
inaction because an agency’s decision not to take enforcesaent
action is presumptively unreviewable by a court. Heckler v.
Chaney, 470 U.S. 821 (1985).
— 39a —
N. Corps regulations grant the District Engineer the discre-
tion to modify, suspend, or revoke a permit, but they do not
mandate issuance of a new permit or modification of same. 33
C.F.R. §§325.7 amd 325.8(b)(1987).
O. Enforcement decisions under the Clean Water Act are
committed exclusively to the discretion of the Corps. Harmon
Cove Condominium Ass’n, Inc. v. Marsh, 815 F.2d 949 (3d Cir.
1987).
P. The Corps’ decision not to require a new permit or revoke
or suspend the existing permit is to be upheld unless proven to
be arbitrary and capricious, an abuse of discretion, or otherwise
not in accordance with law. 5 U.S.C. §706(2)(A).
Q. The case of First National Bank of Fayetteville vy. Smith,
508 F.2d 1371, 1376 (8th Cir. 1974), cert. denied, 421 U.S. 930
(1975), holds:
‘‘Administrative action may be regarded as arbitrary and
capricious only where it is not supportable on any rational
basis.’’ . . . Something more than mere error is necessary
to meet the test... . To have administrative action set
aside as arbitrary and capricious, the party challenging the
action must prove that it was ‘‘willful and unreasoning ac-
tion, without consideration and in disregard of the facts or
circumstances of the case... .”’
(citatlons omitted).
R. Great deference is accorded an administrative agency’s in-
terpretation of its own regulations. See, e.g., Moore v. Custis,
736 F.2d 1260, 1262 (8th Cir. 1984).
S. The Court does not substitute its judgment for that of the
agency, and need only ascertain if there is a rational connection
between the facts found and the choice made by the agency.
Corning Sav. & Loan Ass’n y. Federal Home Loan Bank Ba.,
736 F.2d 479, 480 (8th Cir. 1984).
— 40a —
T. The Corps may rely on information provided by the per-
mit applicant concerning its identification and analysis of alter-
native sites, so long as the agency verifies and evaluates that in-
formation. See Friends of the Earth v. Hintz, 800 F.2d 822,
834-35 (9th Cir. 1986) (agency’s EA); River Road Alliance, Inc.
v. Corps of Engineers of U.S. Army, 764 F.2d 445, 452-53 (7th
Cir. 1985) (agency’s analysis of alternative sites), cert. denied,
475 U.S. 1055 (1986).
The Corps is not a business consulting firm. It is in no
position to conduct a feasibility study of alternative sites. .
. the Corps has to depend on the parties for such infor-
mation{.]
River Road Alliance, Inc., supra, 764 F.2d at 453.
U. In this case, the Corps reasonably evaluated the criteria
selected for analyzing alternative sites. The Corps then con-
sidered eleven potential alternative sites for the entire project as
well as two on-site alternatives and a no action alternative and
six alternative sites for the stadium.
V. The Corps reasonably concluded that there is no prac-
ticable alternative site for the revised Riverport project.
W. The Corps is not required to deny a permit application
simply because of any anticipated adverse impacts of future
projects.
Since any subsequent applicant . . . will have to get a Corps
permit too, the Corps will be able to prevent the problem
from getting out of hand.
Id. at 452.
X. The record here discloses the Corps evaluated the River-
port project in light of both existing and reasonably foreseeable
future projects in the area.
Y. Plaintiffs also contend that the Corps did not adequately
consider the potential secondary impacts of the Riverport
a iii
— 4la —
development — i.e., increased traffic, and the potential for in-
creased air pollution related thereto.
Z. The record amply demonstrates that the Corps did, in
fact, consider such potential impacts.
AA. In regard to traffic impacts, the Corps, relying in part
on the objective analysis of the MHTC, made the judgment to
accept the conclusions of Sverdrup’s traffic expert and the St.
Louis County Highway Department, rather than the views of
plaintiffs’ expert. .
BB. Plaintiffs now ask this Court to substitute its judgment
for the Corps’. That far exceeds the scope of review applicable
here. The Corps’ decision to accept the conclusions of these
traffic experts was plainly not arbitrary, capricious, or
unreasonable.
CC. The Corps should not base its permit decision on
socioeconomic harms not proximately related to changes in the
physical environment since it is not empowered to regulate
economic competition between communities or to make
political decisions as to which community’s economic interests
ought to be preferred. Mall Properties, Inc. v. Marsh, 672
F.Supp. 561 (D.Mass. 1987).
DD. The Corps’ permit-processing regulations specify that
when private entities apply for a permit, ‘‘it will generally be
assumed [as the Corps did in this case] that appropriate
economic evaluations have been completed, the proposal is
economically viable, and is needed in the marketplace.’’ 33
C.F.R. §320.4(q)(1987).
EE. Although prior to implementation of the above regula-
tion, the following cases remain persuasive for the points that
mere economic and social impacts are insufficient to require
preparation of an EIS, Como-Falcon Community Coalition,
Inc. v. U.S. Dept. of Labor, 609 F.2d 342, 345-46 (8th Cir.
1979), cert. denied, 446 U.S. 936 (1980); and socioeconomic im-
— 42a —
pacts are not to be considered unless there is a reasonably close
causal relationship between such impacts and an impact on the
physical environment. Cf. Metropolitan Edison Co. v. People
Against Nuclear Energy, 460 U.S. 766, 773-74 (1983) (re health
and psychological impacts); and Olmsted Citizens for a Better
Community, supra, 793 F.2d at 204-05 (re socio-economic im-
pacts). Here, the Corps’ evaluation of the economic and recrea-
tion impacts (and all others) was not arbitrary, capricious, or
unreasonable.
FF. As a matter of law, surface water runoff, such as from
the stadium parking lots, is deemed ‘‘non-point source runoff,”’
and is not subject to the permitting requirements of the Clean
Water Act.
GG. This was made clear by Congress in the Act, 33 U.S.C.
§§1311, 1314(f), 1362(12)(14), and consistently reaffirmed by
the courts. See, e.g., Sierra Club v. Abston Const. Co., Inc.,
620 F.2d 41, 43 (Sth Cir. 1980); United States v. Earth Sciences,
Inc., 599 F.2d 368, 373 (10th Cir. 1979) (accelerated runoff of
rain water from impermeable surface such as parking lot, carry-
ing with it oil, lead, rubber particles, and other additives from
vehicular traffic, is non-point source pollution subject only to
analysis, study, and suggestions).
HH. The facts provided to the Corps, and the evidence ad-
duced at trial, demonstrate that the Riverport project will not
cause any nonconformance with Missouri’s state implementa-
tion plans (‘‘SIP’’). Therefore, the Corps did not violate Sec-
tion 7506 of the Clean Air Act, 42 U.S.C. §7506, in issuing the
Riverport permit.
Il. Section 7 of the Endangered Species Act instructs federal
agencies, in consultation with the FWS, to ensure that their ac-
tions are not likely either (1) to jeopardize the continued ex-
istence of an endangered species, or (2) to destroy or modify
adversely any critical habitat of an endangered species. 16
U.S.C. §1536.
— 43a —
JJ. Judicial review of an agency’s compliance with the En-
dangered Species Act is governed by the arbitrary and
capricious standard of the Administrative Procedures Act, 5
U.S.C. §706(2)(A). Cabinet Mountains Wilderness/Scotch-
man’s Peak Grizzly Bears v. Peterson, 685 F.2d 678, 686 (D.C.
Cir. 1982).
KK. In this case, although the bald eagle may be present in
the project area, the original Riverport project was determined
to be not likely to jeopardize its continued existence. Moreover,
permit conditions were incorporated in the Riverport permit to
minimize any effect of the project on the bald eagle.
LL. There is no critical habitat of the bald eagle in the pro-
ject area.
MM. The revision of the Riverport project to include a dom-
ed stadium causes no additional impacts, if any, to the bald
eagle.
NN. The Corps acted in compliance with the Endangered
Species Act, and did not act arbitrarily or capriciously in its
reevaluation of the Riverport permit.
OO. Plaintiffs’ reliance on the Fish and Wildlife Coordina-
tion Act (““FWCA”’), 16 U.S.C. §661, et seq., is misplaced.
PP. There is no private right of action to enforce the FWCA.
Environmental Defense Fund, Inc. v. Alexander, 501 F .Supp
742, 766-67 (N.D. Miss. 1980); Trinity County vy. Andrus, 438
F.Supp. 1368, 1383 (E.D. Cal. 1977); Sierra Club vy. Morton,
400 F.Supp. 610, 640 (N.D. Cal 1975), aff’d in part, rev’d in
part on other grounds sub nom. Sierra Club y. Andrus, 610
F.2d 581 (9th Cir. 1979).
QQ. Moreover, an agency’s compliance with NEPA
automatically satisfies the requirements of the FWCA. Strate of
Missouri ex. rel. Ashcroft v. Department of the Army, Corps of
Engineers, 526 F.Supp. 660, 677 (W.D. Mo. 1980) aff'd on
ee
) — 44a —
other grounds, 672 F.2d 1297, 1303 (8th Cir. 1982); Enos v.
Marsh, 616 F.Supp. 32, 64-65 (D.Haw. 1984), aff’d on other
grounds, 769 F.2d 1363 (9th Cir. 1985).
RR. Furthermore, the record shows the Corps consulted with
the FWS. Plaintiffs’ claims under the FWCA are without merit.
OBITER DICTA
Through evidence and argument it was urged upon the Court
that:
(a) the stadium should be located in the downtown core of
the metropolitan area;
(b) two stadia in one metropolitan area are unsuitable; and
(c) a stadium should not be placed in a floodplain.
Must we ignore as judges what we know as sports fans?
Kansas City, Missouri, has two stadia, built side by side.
Both are miles from the downtown core of the
metropolitan area.
The Dallas Cowboys play in Irving, Texas.
The Detroit Lions play in Pontiac, Michigan.
New York professional football teams play in New Jersey.
It should be unnecessary to remind St. Louisans where the
Minresota Twins play.
It is not in Minneapolis or St. Paul.
The New Orleans Superdome is located in the downtown
core of that metropolitan area.
It is also in the heart of a great floodplain.
— 4Sa —
‘
A page of experience is worth a pound of logic. Justice Oliver
Wendell Holmes, Jr. gave us this lesson over a century ago.
O.W. Holmes, The Common Law, at 1 (1881).
Judges regularly urge jurors to take their common sense into
their deliberations. Perhaps sometimes judges may do likewise.
Dated this 8th day of January, 1988.
/s/ Wm. L. Hungate
United States District Judge
— 46a —
APPENDIX C
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
No. 87-1397C(3)
Missouri Coalition for the Environment, et al.,
Plaintiffs,
ee
Corps of Engineers of the United States Army, et al.,
Defendants.
JUDGMENT
(Filed: January 8, 1988)
This action came before the Court, the Honorable William L.
Hungate, District Judge, presiding. The issues having been duly
tried and resolved in accordance with an order and findings of
fact and conclusions of law entered by the Court this date,
IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that plaintiffs take nothing by their cause of action
against defendants, and the claims against defendants are
dismissed on the merits at plaintiff's cost.
Eyvon Mendenhall, Clerk
By: /s/ Florence H. Guzenski
Deputy Clerk
Dated: January 8, 1988
Approved as to form this 8th day of January, 1988.
William L. Hungate
United States District Judge
— 47a —
APPENDIX D
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
No. 87-1397C(3)
Missouri Coalition for the Environment, et al.,
Plaintiffs,
v.
Corps of Engineers of the United States Army, et al.,
Defendants.
ORDER
(Filed: January 8, 1988)
Findings of fact and conclusions of law dated this day are
hereby incorporated into and made a part of this order.
IT IS HEREBY ORDERED, ADJUDGED, AND DE-
CREED that plaintiffs take nothing by their cause of action
against defendants, and the claims against the defendants are
dismissed on the merits at plaintiffs’ costs.
Dated this 8th day of January, 1988.
/s/ William L. Hungate
United States District Judge
— 48a —
APPENDIX E
DEPARTMENT OF THE ARMY
Kansas City District, Corps of Engineers
700 Federal Building
Kansas City, Missouri 64106-2896
June 22, 1987
CEMRK-DE
MEMORANDUM FOR RECORD
SUBJECT: Reevaluation of DA Permit Number 2151 Issued to
Riverport Associates
1. The purpose of this memorandum is to record the results of
my reevaluation of the circumstances and conditions of the per-
mit issued to Riverport Associates on 16 May !985. That permit
authorized the discharge of fill material into a wetland adjacent
to the Missouri River in association with the construction of an
800 foot portion of a levee. My decision to issue the permit in
May 1985 was based on all factors developed through a full
public interest review as required by Federal Regulations 33
CFR 320-330.
2. The-reevaluation of DA Permit Number 2151 was initiated
because circumstances and conditions related to the authorized
~ activity had changed since the permit was issued. The changed
circumstances and conditions arose from a revision of the pro-
ject whereby St. Louis County proposed to acquire 100 acres of
the Riverport site for construction of a domed sports stadium
and some related parking space. Prior to the County’s pro-
posal, the 100 acre site was to have been used for commer-
cial/retail/industrial activities of a non-specific nature. Addi-
tional acreage adjacent to the Riverport site was to be acquired
for the construction of supplemental parking space for the
stadium. The additional acreage is part of the revised project
because it is part of the stadium. The potential future construc-
ae
— 49a —
tion by the County of a levee to provide enhanced flood protec-
tion for the parking space adjacent to the Riverport site was in-
itially considered to be part of the revised project.
3. The reevaluation of the circumstances and conditions of the
permit was undertaken to determine if there was a significant in-
crease in scope of the permitted activity resulting from the revis-
ed project. If-so, the changed circumstances and conditions
would require that a new permit be processed for the activity. If
there was no significant increase in scope of the permitted activi-
ty, then the reevaluation would determine if action to modify,
suspend, or revoke the permit was necessary given considera-
tions of the public interest.
4. 33 CFR 325.7(a) requires the processing of a new application
for a permit when a significant increase in the scope of a permit-
ted activity has occurred. The permitted activity originally
authorized by DA Permit Number 2151 is: (1) the discharge of
approximately 53,600 c.y. of fill material for construction of an
800 foot long portion of a levee; (2) discharge of approximately
17 c.y. of rock for construction of a stilling basin and outfall
channel; and (3) discharge of a small unknown quantity of fill
for minor grading in wetland areas to improve drainage in
association with the construction of an industrial park within
the levee. The authorized discharges are permitted in wetland
areas adjacent to the right bank of the Missouri between river
miles 29.6 and 29.9 in St. Louis County, Missouri. The con-
struction of a domed stadium and some parking facilities on 100
acres of the Riverport site previously planned for commer-
cial/retail/industrial use of a non-specific nature does not in-
crease the scope of the permitted activity described above. The
construction of additional parking facilities on land adjacent to
the Riverport property to support the stadium does not increase
the scope of the permitted activity since those parking facilities
will be sited to avoid wetlands. The construction or improve-
ment of a levee to protect the parking facilities located outside
the Riverport levee does not increase the scope of the permitted
— 50a —
activity because St. Louis County has determined that the con-
struction of the levee is not necessary and will not be undertaken
as part of the project. Sincethere will be no placement of fill in
wetlands resulting from the construction of the revised project,
there is no significant increase in the scope of the activity per-
mitted under DA Permit Number 2151 that would require the
processing of a new application for a permit in accordance with
33 CFR 325.7(a) or 33 CFR 325.2.
5. 33 CFR 325.7(a) identifies five factors to be considered dur-
ing a reevaluation of the circumstances and conditions of a per-
mit. My reevaluation of DA Permit Number 2151 was con-
ducted because circumstances and conditions relating to the per-
mitted activity had changed since the permit was issued. This is
one of the five factors identified in paragraph 325.7(a).
a. Three of the remaining four factors did not apply to this
reevaluation. Those three factors are: the identification of
significant objections to the authorized activity which were not
earlier considered; revisions to applicable statutory or
regulatory authorities; and the extent to which modification,
suspension, or other action would adversely affect the plans, in-
vestment and actions that the permittee has made in reliance on
the permit.
b. The extent of the permittee’s compliance with the terms
and conditions of the permit is the fifth factor identified in 33
CFR 325.7(a). This factor did not apply at the time the
reevaluation was initiated. During the conduct of my reevalua-
tion, the permittee’s noncompliance with a portion of the per-
mit was identified. The noncompliance was determined to be
inadvertent and was not a significant factor in my reevaluation.
Restoration and mitigation have been required for this non-
compliance.
6. In considering the factor of changed circumstances and con-
ditions, my reevaluation was designed to determine if the permit
should be modified, suspended or revoked in the public interest.
— Sla —
Information was requested from the permittee and from St.
Louis County to enable me to conduct the reevaluation. A par-
tial summary of correspondence, meetings, and coordination
activities is at Enclosure 1. To examine the potential impacts of
the changed circumstances and conditions and to assist the
balancing of issues in the public interest, a matrix was developed
to compare the impacts addressed in the Environmental Assess-
ment (EA) for the original project with the projected impacts of
the revised project. The matrix is at Enclosure 2. The revised
project would result in potentially significant changes in only
two of the twenty-eight environmental impacts addressed in the
EA. Those impacts are economics and recreation. All other en-
vironmental impacts are essentially the same as those discussed
in the EA. The principal impact on recreation is to shift the
location of certain available recreation resources from
downtown St. Louis to the Riverport site. The recreation
resources remain available to the general population. The prin-
cipal economic impact is to be borne by private investors. When
a project is financed by private funds, Federal regulations
assume that appropriate economic evaluations have been made
by the private sector and that the willingness of private interests
to invest in the project indicates that the project is economically
viable and needed in the marketplace. Economics and recrea-
tion are secondary impacts to the filling activity authorized by
the permit. The adverse economic and recreation impacts that
are felt in some locations are mitigated to some extent by the
beneficial economic and recreation impacts occurring in other
locations. In balancing the issues in the public interest and
assessing my responsibilities under applicable regulations, |
have concluded that the change of environmental impacts due
to the revised project does not warrant modification, suspen-
sion or revocation of the Riverport permit.
7. There are four other items that were considered during my
reevaluation. They are: practicable alternative sites for the pro-
ject, highway access to the project, air quality, and the
cumulative impacts of the project.
— 52a —
a. When the placement of fill in a special aquatic site is for a
non-water dependent activity, it must be assumed that prac-
ticable alternatives exist. During my evaluation of the original
permit application, I determined that there were no practicable
alternatives that would achieve the purposes of the project. A
discussion of alternatives examined during the processing of the
original permit application is at paragraph 2.x. of the EA. I
have considered the parameters for successful development of
the revised project as presented by the applicant and have con-
cluded that the parameters are reasonable. These parameters
have not changed from those of the original project except for
an increase in the number of acres required. There is no need to
search for other possible sites since the original search was com-
prehensive enough to identify those sites that provide sufficient
acreage for the revised project. None of the alternative sites
with sufficient acreage meet the parameters necessary for the
successful development of the revised project. Therefore, |
have determined that there are no practicable alternative sites
for the revised project.
b. The EA for the original project did not identify highway
access aS an impact because of the position of the State of
Missouri as expressed by the Missouri Highway and Transporta-
tion Commission (MHTC) in their letter of 26 September 1984
(Enclosure 3). During my reevaluation, the Honorable John
Scott provided me a copy of a letter (Enclosure 4 and 5) from
the MHTC that appeared to contradict MHTC’s 1984 letter.
Discussions with the MHTC provided the following explana-
tion: ‘‘If planned street and highway connections are com-
pleted with the proposed development of the area, it (the
development) would be reasonably compatible with highway
facilities serving the area.’’ (Enclosure 6). Also, the County
stated that no road improvements other than those planned as
part of the original project would be required when the stadium
is substituted for other commercial/retail/industrial activities at
Riverport (Enclosure 7). Subsequently, the Missouri Coalition
— S3a —
for the Environment made available a study of the traffic im-
Pact associated with the revised project (Enclosure 8) that
challenged the information provided by the State and the Coun-
ty. As a result, I requested additional information from the
State and the permittee regarding the traffic impact of the revis-
ed project (Enclosure 9 and 10). That information was provid-
ed in a letter from the State dated April 30, 1987 (Enclosure 1 1),
in two studies provided by the permittee (Enclosure 12 and 13),
and in a letter from the State dated June 11, 1987 (Enclosure
14). In addition, I considered the information contained in let-
ters from the Missouri Coalition for the Environment dated
May 28, 1987 and June 10, 1987 (Enclosure 15 and 16). Addi-
tional information received from the Coalition’s traffic consul-
tant was also considered (Enclosure 17). Having considered the
information received from these sources, and relying on the opi-
nion of the MHTC, I have determined that the existing road
System augmented by the improvements to I-70 which the State
is about to make, the improvements to the I-70 interchange and
a portion of the Earth City Expressway that are part of the
original Riverport project, and the use of traffic management
plans for stadium events will provide minimally acceptable road
access to the revised project.
¢.°St. Louis County is in a nonattainment area for ozone as
that term is defined in the Clean Air Act. During my reevalua-
tion, I considered the fact that automobile emissions are a
source of ozone pollution and I reviewed information on air
quality provided by the Missouri Coalition for the Environ-
ment. I also reviewed an Air Pollution Analysis (Enclosure 18)
prepared by St. Louis County and information provided by the
Environmental Protection Agency dated March 30, 1987 and
June 10, 1987 (enclosures 19 and 20). There are no regulations
at the federal level that control indirect sources of air pollution
such as automobile emissions at a stadium event. The State Im-
plementation Plan places no restrictions on indirect sources of
air pollution. Since agencies with responsibility for and special
— 54a —
expertise in air quality matters do not regulate indirect sources
of air pollution, I have determined that it would be inap-
propriate for the Corps of Engineers to provide regulatiom
through the Department of the Army regulatory program.
d. The National Environmental Policy Act regulations (40
CFR 1500 et seq.) define cumulative impacts as those which
result ‘‘from the incremental impact(s) of the action when add-
ed to other past, present, and reasonably foreseeable future ac-
tions, regardless of what agency . . . or person undertakes such
other actions’’. I have considered the cumulative impacts of the
revised project, including past actions in the same ecosystem
and the potential future development of the Missouri River
flood plain to the south and west of the Riverport site. I am
aware that in 1969 St. Louis County prepared a Master Plan for
development of the flood plain in this area and that area leaders
have made numerous statements of intent to eventually develop
this flood plain. The Master Plan and the statements generally
reflect concepts of the possibilities for the area rather than a
definitive plan for action. There are no proposals and no
evidence of future proposals sufficient to characterize any of the
concepts in the Master Plan or other plans commissioned by the
county as reasonably foreseeable future actions. Several road
improvements in the area (Route 115, Page Avenue, and the
Earth City Expressway) were considered in regard to their
cumulative impacts. These roadway improvements have been
part of the long range plans for the area, have independent utili-
ty and, as discussed in paragraph 7 b, are not essential for the
stadium. Route 115 has been the subject of an environmental
assessment and the impacts of the Page Avenue extension are to
be addressed in an Environmental Impact Statement. Neither
the route nor the date of construction start for the extension of
the Earth City Expressway to Page Avenue has been establish-
ed. The eventual need for this extension was identified prior to
the development of both the original Riverport project and the
revised Riverport project. The impact of the construction of the
— 55a —
original Riverport project on the need for this road extension
was considered during the public interest review for the original
permit. The principal potential impact of the revised project
may be to advance the eventual date of construction of this road
extension. This road extension is not ‘‘reasonably related’’ to
the revised project (33 CFR 325.1(d)(2)). The environmental
documentation that will likely be required if and when this road
extension project is designed and programmed for construction
will provide adequate safeguards for wetlands and other en-
vironmental concerns. I have determined that the cumulative
impacts that can be attributed to the revised project do not dif-
fer significantly from those attributed to the original project.
8. I have reviewed and considered all the information gathered
to conduct my reevaluation. In addition, I have reviewed the
Environmental Assessment and other information in the file of
the original permit application. I have determined that the ex-
isting permit will remain in effect and does not require modifi-
cation, suspension or revocation as a result of the changed cir-
cumstances and conditions associated with the revised project.
/s/ Robert M. Amrine
Colonel, Corps of Engineers
Commanding
20 Enclosures
— 56a —
APPENDIX F
DEPARTMENT OF THE ARMY
Kansas City District, Corps of Engineers
700 Federal Building
Kansas City, Missouri 64106
MRKOD-PP (2151)
ENVIRONMENTAL ASSESSMENT
RIVERPORT ASSOCIATES
FILL IN WETLANDS
MISSOURI RIVER MILE 29.6 TO 29.9
APPLICATION NO. 2151
1. Riverport Associates, 801 North 11th Street, St. Louis,
Missouri 63101, has requested a Department of the Army per-
mit to authorize the proposed placement of fill material in
association with the construction of a levee and outfall structure
on the right bank of the Missouri River and in adjacent
wetlands. The proposed project is located between Missouri
River miles 29.6 and 29.9, Township 46 north, Range 5 east, in
St. Louis County, Missouri (Latitude: 38 45’ 35°’ north —
Longitude: 90 28’ 56’’ west).
2. The following public interest factors were given careful
evaluation in assessing the impacts of the project:
\
a. Description of Proposed Work.
(1) the applicant proposes to discharge fill material into a
wetland area of approximately 49 acres in association with the
construction of a levee to provide 500-year flood protection to a
500-acre tract of land. The tract is located along the right bank
of the Missouri River between river miles 29.6 and 29.9, and ad-
jacent to Interstate 70. The proposed development would in-
clude a 370-acre complex of which 190 acres would be served by
rail. The remaining acreage would be set aside for levee protec-
tion, rail lines, roadways, watercourses, and a retention basin.
— S7a —
The commercial Properties would include retail buildings,
restaurants, entertainment facilities, office buildings, and an in-
dustrial area limited to warehousing and light manufacturing
facilities.
(2) The regulated component of the development is the fill
matertal, and as originally proposed, included the discharge of
approximately 53,600 cubic yards of fill in a wetland in conjunc-
tion with the construction of 800 linear feet of a 4,100-foot levee
and the construction of a 1 ,350-foot-long Cast-in-place concrete
box culvert connecting a retention basin to an outfall structure
at the bank of the Missouri River. Approximately 135 cubic
yards of backfill, used to cover the culvert, would be placed
riverward of the Ordinary high water mark (OHWM), elevation
439.2 feet, National Geodetic Vertical Datum of 1929 (NGVD).
Significant portions of the backfill placed landward of the
OHWM would be within an area determined to be a bottomland
riparian (palustrine forested) wetland adjacent to the Missouri
River.
(3) Subsequent to issuance of Joint Public Notice No. 215] on
20 January 1984, the applicant has twice revised plans to
minimize impacts to the identified wetlands and to limit the
nature of the Federal authority over the project.
a) The first modification reduced the lengih of the proposed
box culvert to 200 feet riverward of the levee. This modification
sited the culvert above the OHWM, thereby negating the need
for the applicant to obtain authorization under Section 10 of the
Rivers and Harbors Act of 1899 (33 USC 403). The modifica-
tion also reduced potential impacts to the Federal revetment
along the Missouri River and, possibly, to impacts riverward of
the rectified channel line. The first modification also incor-
porated a wetland area of approximately 28 acres, located on
the northeast portion of the site into the proposed retention
basin, thereby eliminating the need to destroy the wetland.
— 58a —
b) The second modification included the proviso that the ap-
plicant purchase a 10-acre tract of land located between the
Riverport-Howard Bend levee tie-back and the 1-70 corridor
riverward of the proposed levee. Additionally, the culvert pro-
posal was modified again. In the new plan the culvert extended
only minimally riverward of the levee and drained into a rock-
lined stilling basin. The stilling basin would be constructed to
permit discharges to flow laterally throughout the area between
the levee and the Missouri River. Although approximately |
acre of wetland would be destroyed by this modification by con-
struction of the outfall channel and stilling basin the modifica-
tion would promote the development, maintenance, and/or
enhancement of additional or existing wetlands. The second
modification is the current proposal and the subject of the
following assessment.
b. Need For the Activity.
(1) Market studies completed by the applicant indicate a de-
mand for a retail-commercial-industrial complex in the west
county area of the kind proposed. The I-70/I-270 area has been
identified as the primary remaining growth corridor in St. Louis
County. Therefore, the applicant ccntended that Riverport
would serve the need for a specific kind of development in a
rapidly growing area of the county and be of economic benefit
to the county and the metropolitan St. Louis area.
(2) The viability of the development project is directly related
to the developer’s ability to provide adequate flood protection.
The proposed fill material constitutes a portion of a levee which
is an integral component of the overall development.
c. Economics.
(1) It bas been estimated by the applicant that construction of
the project would stimulate the investment of $300-500 million
dollars in a 10 to 12 year period and create approximately 8,200
permanent jobs.
— 59a —
(2) Conversion of farmland to the proposed development
would provide positive tax benefits. It is anticipated that prop-
erty tax values would increase significantly: sales tax revenues to
the state and county wouid be generated as a result of sales and
services; and Federal and state income tax revenues would be ex-
pected to increase with increasing numbers of employees. The
magnitude of the tax revenue increase, number of jobs, and in-
come generated would be highly dependent on whether the
development results in the relocation of current county enter-
prises, the recruitment of non-regional businesses, or the
relative proportion of these two factors.
(3) Concurrent with the development of commercial entities is
the need for development of public services, such as roads and
utilities. The St. Louis County Commission, pursuant to the re-
zoning of the proposed site (see paragraph 2.d.), is requiring the
applicant to assume the expenses for the I-70 interchange im-
provements, the widening and extending of the Earth City Ex-
pressway, the selective signalization, and the construction of
sewage lines and other infrastructural improvements. Public
contributions for the maintenance of these improvements is not
known.
(4) The applicant has provided KCD with several publications
documenting the shortage of vacant industrial lands in St. Louis
County. The St. Louis County Economic Development Report
(1982) and Update of the St. Louis County Vacant Industrial
Land Inventory (1982) indicated that the county has approx-
imately 12,600 acres of vacant industrially-zoned land as of
June, 1982, and an additional 840 acres of onsite expansion
space. However, the reports noted that only 3,347 acres were
rate
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