Petition — Save The Bay, Inc. v. United States Corps of Engineers

80-171 JUN 5 1980

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

SAVE THE BAY, INC.,

Petitioner

V.

U.S. CorPs OF ENGINEERS, et al.,

Respondents

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

ROBERT W. SMITH

Attorney for the Petitioner

507 Lameuse Street

Biloxi, Mississippi 39530

(601) 374-1356

EARL L. DENHAM ;

Attorney for the Petitioner

424 Washington Avenue

P.O. Box 596

Ocean Springs, Mississippi 39564

(601) 875-1234

WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED FOR REVIEW

Whether the United States District Court and the

Court of Appeals for the Fifth Circuit erred in ruling

that:

a) The preparation of an Environmental Impact State-

ment is not necessary in this case because

1) An environmental assessment by the district en-

gineer was reasonable and based on substantial evidence;

2) The activity herein is not a major federal action

significantly affecting the quality of the human environ-

ment.

b) In issuing a permit for an outfall pipeline to de-

liver 2,300,000 gallons of pollutants per day from a mas-

sive chemical plant, the Corps of Engineers is not re-

quired to consider the environmental cost of the entire

project but only the effects of the installation and main-

tenance of the outfall line itself.

(i)

TABLE OF CONTENTS

Questions Presented For Review ..................--.:::se0-0000+

Judgment and Opinion Below ......2...............-....-..0c000eee-e-

SEGRE EE

Constitutional Provisions and Statutes Involved ..........

ES ITS I REL

Reasons for Granting The Writ .......................:::seseee-++

I eiispinimisetinaubionecs

Appendix A

Opinion of the United States Court of Appeals for

Ss sesunbelinnionns

TABLE OF AUTHORITIES

CASES:

Citizens for Clean Air, Inc. v. U.S. Corps of Engi-

neers, et al., 349 F. Supp. 696 (S.D.N.Y. 1972)..

Mahelona v. Hawaiian Electric Company, 418 F.

Supp. 1828 (D..Hawaii 1976)...............................

Port of Astoria v. Hodel, 8 ERC 1156, Aff’d, 595

Ss )

STATUTES:

Title 28, USC Section 4882(2) (c) --........22.-222..200-+-

le inccsneiaiendninsennsdasessunarsnsiee

iii

PREVIOUS PAGE WAS BLANK

la

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

No.

SAVE THE BAY, INC.,

Petitioner

V.

U.S. CoRPS OF ENGINEERS, et al.,

Respondents

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

SAVE THE BAY, INC., respectfully petitions for a

Writ of Certiorari to review the Opinion of the United

States Court of Appeals for the Fifth Circuit which

affirmed the judgment of the United States District

Court, Southern District of Mississippi, Southern Divi-

sion, refusing to require the U.S. Corps of Engineers

to prepare an Environmental Impact Statement as pro-

vided under the National Environmental Policy Act with

respect to an outfall pipeline which will discharge

2,000,000 gallons per day of industrial waste water into

a pristine estuarian bay from a massive titanium dioxide

chemical plant being constructed by E. I. DuPont de

Nemours and Co., Inc.

2

JUDGMENT AND OPINION BELOW

The judgment of the United States District Court re-

fusing to require the U.S. Corps of Engineers to prepare

an Environmental Impact Statement and refusing the

injunctive relief requested by Petitioner, was affirmed by

the United States Court of Appeals for the Fifth Circuit

in an Opinion dated January 24, 1980, reported at 610

F.2d 322; Petition for rehearing denied, March 17, 1980.

The opinion and the denial of rehearing are attached

hereto in Appendix A.

JURISDICTION

The Opinion of the United States Court of Appeals

for the Fifth Circuit which is sought to be reviewed was

rendered on January 24, 1980.

The per curiam amendment to the Opinion and denial

rehearing was rendered March 17, 1980.

The jurisdiction of this Supreme Court is based on

28 USC 1245.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

1. Title 28, USC Section 4332 (2) (c) °

“The Congress authorizes and directs that to the fullest

extent possible. . .

2. All agencies of the Federal Government shall:

(c) Include in every recommendation or report on

proposals for legislation and other major federal

actions significantly affecting the quality of the

human environment a detailed statement (EIS) by

the responsible official on:

(i) The environmental impact of the proposed

action,

3

(ii) Any adverse and 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 commit-

ments of resources which would be involved in

the proposed action should it be implemented...

2. Counsel of Environmental Quality Regulations 40

CFR 1500.6 (a)

“The statutory clause ‘major Federal actions sig-

nificantly affecting the quality of human environ-

ment’ is to be construed by agencies with a view to

the overall, cumulative impact of the action, proposed

related Federal actions and projects in the area, and

further actions contemplated. Such actions may be

localized in their impact, but if there is potential

that the environment may be significantly affected,

the statement is to be prepared. Proposed major

actions, the environmental impact of which is likely

to be hightly controversial, should be covered in

all cases. In considering what constitutes major

action significantly affecting the environment, agen-

cies should bear in mind that the effect of many

Federal decisions about a project or complex of

projects can be individually limited but cumulatively

considerable. This can occur when one or more agen-

cies over a period of years puts into a project indi-

vidually minor but collectively major resources,

when one decision involving a limited amount of

money is a precedent for action in much larger

cases or represents a decision in principle about a

future major course of action, or when several gov-

ernment agencies individually make decisions about

partial aspects of a major action. In all such cases,

an Environmental Statement shouid be prepared if

4

it is reasonable to anticipate a cumulatively signifi-

cant impact on the environment from Federal action.

The Council, on the basis of a written assessment of

the impacts involved, is available to assist agencies

in determining whether specific actions require im-

pact statement.” 40 CFR 1500.6 (a)

STATEMENT OF THE CASE

The Plaintiff, SAVE THE BAY, INC. is a non-profit

corporation organized under the laws of the State of

Mississippi. Its members consist of full time and part

time residents of Harrison and Hancock Counties in the

State of Mississippi and of the vicinity of the Bay of

St. Louis (Tr. 1158). The Defendant, DuPont, is a pri-

vate corporation incorporated under the laws of the State

of Delaware, the Federal Defendants are the United

States Army, the United States Corps of Engineers, an

agency of the United States Government within the De-

partment of the Army, and Colonel Drake Wilson, for-

merly the District Engineer for the Mobile District of

the Corps. (Tr. 1158). The Defendant, DuPont, is

presently constructing and plans to operate a massive

titanium dioxide manufacturing facility representing an

investment of between one hundred twenty-five and one

hundred thirty million dollars, (Tr. 298, 471) and en-

compassing over two thousand acres of land (Tr. 292,

474), (general exhibits 1-4) in Delisle, Mississippi near

the Bay of St. Louis, in Harrison County, Mississippi.

The plant operation and construction includes waste

emission smoke stacks, deep-well disposal of highly toxic

chemical wastes, and a pipeline to dump chemical wastes

into the Bay of St. Louis as hereafter described. On

November 21, 1974, DuPont sought authorization from

the Defendant U.S. Corps of Engineers, to install a 24

inch diameter effluent line to discharge approximately

two million gallons of industrial pollutants per day (Tr.

505-506) into the Bay of St. Louis. The outfall line

5

itself extends approximately 2,200 feet into the Bay and

is installed by the dredging of a trench resulting in the

removal of 610 cubic yards of dredged material.

From the very beginning, the Corps of Engineers con-

sidered the question as to whether all or part of the pro-

posed construction should be considered as candidate for

an Environmental Impact Statement (Tr. 284), but the

Corps determined that only construction of the 24 inch

effluent line and appurtenant structures were subject to

Corps regulation and thus the Corps limited its assess-

ment, evaluation and evaluation and analysis solely to

that feature of the plant construction (Tr. 285).

On February 3, 1975, the Mississippi Air and Water

Pollution Control Commission, issued a National Pol-

lutant Discharge Elimination Systems permit to DuPont

allowing discharge of the waste water in accordance with

the conditions of the permit.

Following solicitation of comments from federal, state

and local agencies concerning the proposed pipeline con-

struction permit, the Corps of Engineers announced a

public hearing would be held on June 19, 1975, to answer

any questions concerning issuing of the pipeline con-

struction permit. In keeping with the Corps’ prior de-

termination that only the construction of the pipeline was

subject to their regulation, the public notice for the

hearing was limited to the installation of the 24 inch

diameter pipeline and made no mention of consideration

of other aspects of the DuPont Plant in the issuance of

its permit. On June 19, 1975 the hearing was held and

all proponents and opponents were allowed to express

their views. The proponents consisted mostly of govern-

mental or business organizations and generally testified

as to the favorable economic impact the plant would

have. The opponents, consisting mostly of ecological and

recreational organizations, and scientists, testified that

the environmental damage and impact of the DuPont

6

project will reach far beyond deterioration of the water

quality and that potential dangers to the marine and

land environment necessitated the minimal protection of

an environmental impact statement.

The vast majority of the public response and virtually

all the authoritative scientific evidence was unalterably

opposed to the location of the DuPont plant in its se-

lected site; opposed to the granting of the permit for

the outfall pipeline; and overwhelmingly in favor of the

initiation by the Corps of Engineers of a comprehensive

Environmental Impact Statement.

On July 17, 1975, the U.S. Corps of Engineers issued

a statement of Findings allegedly assessing the impact

the proposed activity would have on the environment. The

Corps findings, as was its public notice, was predicated

on the initial determination that the only potential en-

vironmental damages which the Corps would assess would

be those adverse affects caused directly by the construc-

tion of the 220 feet outfall line and excavation of 610

cubic yards of dredged material from the Bay.

The Corps explicitly stated that all other environ-

mental damages caused by the massive DuPont titanium

dioxide plant would not be assessed and were not in-

cluded in the Corps decision to not require an environ-

mental impact statement.

Based on the administrative record, which was replete

with demands for an environmental impact statement

and which evidenced one of the most controversial en-

vironmental issues ever to appear in the State of Mis-

sissippi, the Corps nevertheless directed that the permits

be issued without the protection of an environmental im-

pact statement.

The Plaintiff, SAVE THE BAY, INC. brought suit

pursuant to the National Environmental Policy Act

(NEPA 28 USC 4321 ex seq) against the United States

7

Corps of Engineers, the United States Army, Colonel

Drake Wilson, Mobile District Office of the Corps of

Engineers, and DuPont seeking declaratory and injunc-

tive relief and monetary damages. The case was referred

to the United States Magistrate by the District Judge

and thereafter the Defendant’s Motions for Summary

Judgment were granted and judgment was entered

December 16, 1977 dismissing the complaint with preju-

dice.

Plaintiff, SAVE THE BAY, INC. appealed. On Jan-

uary 24, 1980 the U.S. Court of Appeals for the Fifth

Circuit issued an opinion affirming the District Court’s

opinion and denying Plaintiff the relief requested.

The DuPont plant is now almost in operation. The

construction was begun and has been continuing despite

three years of pleas by Appellant, SAVE THE BAY,

INC. for the very minimal protection of an Environ-

mental Impact Statement.

So far DuPont has obtained or is attempting to obtain

permits from the following agencies:

1. Mississippi Air and Water Pollution Control

Commission,

Mississippi Marine Resources Counsel,

Mississippi Oil and Gas Board,

United States Army Corps of Engineers,

United States Coast Guard, and

The Interstate Commerce Commission.

ee

Not one of these agencies prepared or is attempting to

prepare an Environmental Impact Statement on the

DuPont project.

The perspective of each agency when approached for

a permit has been to consider piecemeal only that part

of the massive project which is directly regulated by

8

that particular agency. The State agencies have studied

only a simulated effluent to be discharged into the Bay

of St. Louis at the rate of 2,000,000 gallons per day.

Those State agencies have further allowed the installa-

tion and use of deep-well disposal of highly toxic chemical

wastes on the DuPont plant site which will one day en-

danger the water supply of the entire Mississippi Gulf

Coast. The United States Coast Guard has issued a

bridge permit to allow construction of a railroad bridge

pursuant to a railroad spur being built to the DuPont

plant. The Interstate Commerce Commission has issued

a permit to allow operation of the same railroad spur.

The United States Corps of Engineers has issued the

outfall construction permit in the instant case as well as

another permit relative to the railroad spur.

The massive DuPont chemical plant could not be built,

could not operate and could not damage the environment

without the issuance of these vital federal permits. The

permits not only allow construction, they allow massive

environmental impact.

The Court of Appeals for the Fifth Circuit has de-

termined that the Corps acted reasonably. The Court

said the Corps was justified in assessing only the environ-

mental damage due to construction aspects of the twenty-

two hundred feet of pipeline and has no duty to consider

the obvious and substantial environmental damages

caused by the massive chemical plant itself.

We strongly dissent.

REASONS FOR GRANTING THE WRIT

The decision of the Court of Appeals that federal per-

mitting agencies, in issuing permits for portions of pri-

vate construction projects must only review the environ-

mental damage of the particular portion of the project

which that federal agency regulates is directly contrary

9

to an explicit regulation of the Council on Environmental

Quality and in conflict with the prior environmental de-

cisions of this Court and other Circuit Courts of Appeal.

In concrete terms for the Petitioner herein the de-

cision will mean that E. I. DuPont can build a $150,000,-

000 titanium dioxide chemical plant with appurtenant

structures for the deep well injection of highly toxic

wastes and for piping 2,000,000 gallons of industrial

waste water a day to dump into a pristine estuarian bay,

and an adjacent thirteen mile railroad spur to ship in

chlorine gas and other chemicals and that all of the

federal permits necessary for this construction can be

issued without the very minimal protection of an En-

vironmental Impact Statement.

L

The Court of Appeals classification of the entire fed-

eral permitting system as “incidental involvement” in

massive private construction projects for the purposes of

NEPA analysis adopts the piecemeal “blinder”’ approach

which has been rejected by every Circuit Court and by

the Council on Environmental Quality (CEQ).

The CEQ Regulation in question, 40 CFR 1500.6(a)

(set forth verbatim at page 3 herein) explicitly states:

“In considering what constitutes major (federal)

action significantly affecting the environment, agen-

cies should bear in mind that the effect of many fed-

eral decisions about a project or complex of projects

can be individually limited but cumulatively con-

siderable. This can occur when one or more agen-

cies over a period of years puts into a project indi-

vidually minor but collectively major resources, when

one decision involving a limited amount of money

is a precedent for action in much larger cases or

represents a decision in principle about a future

major course of action, or when several government

10

agencies individually make decisions about partial

aspects of a major action.

“In all such cases, an EIS should be prepared. . .”

In the case sub judice, the Court of Appeals panel in

oral argument and in its Opinion under the section en-

titled “A Major Federal Action?” took the position that

issuing federal permits was merely “incidental federal

involvement” and did not federalize the massive private

construction. The panel’s position is taken despite the

intimate involvement of four federal agencies in review-

ing and issuing the numerous federal permits necessary

for the massive chemical plant, the deep-well toxic waste

disposal, the railroad constructed to the plant and the

waste-water pipeline constructed to dump 2,000,000 gal-

lons a day of industrial wastes into the Bay of St. Louis.

NEPA was passed specifically to halt the multi-agency,

piecemeal consideration of environmental impact. NEPA’s

whole essence is the comprehensive assessment of en-

vironmental impact in the planning stages of a project.

The decision here is to throwback to pre-NEPA 1969

thinking.

Il.

The second question presented, and as the Court of

Appeals noted, perhaps the point which controls the out-

come of vhe case, is the ruling that the Corps must look

only to the environmental consequences of the pipeline

construction and maintenance instead of considering the

entire DuPont project in its decision on whether or not

to prepare an EIS.

Without the federal permits, including the Corp’s per-

mit for construction of the waste-water pipeline directly

from the massive plant over wet lands to the Bay of St.

Louis, the DuPont project could not have been built and

could not exist.

11

This massive chemical plant is analogous to a living

organism which eats chlorine gas and at the other end

excretes toxic wastes and industrial pollutants at the

rate of over 2,000,000 gallons per day. Without the

permit, there would be no pipeline. Without the pipe-

line, the plant would suffocate in its own waste and the

Bay of St. Louis would live. With the pipeline, the Bay

of St. Louis will die.

To allow the Corps to put on blinders and completely

ignore the environmental ramifications of the federal

permits is the most niggardly, narrow-minded approach

to environmental planning that one can imagine

The cases of Port of Astoria v. Hodel, 8 ERC 1156,

Aff’d 595 F.2d 467 (9th Cir. 1979), Mahelona v. Ha-

watian Electric Company, 418 F. Supp. 13828 (D. Hawaii

1976) and Citizens for Clean Air, Inc. v. U.S. Corps of

Engineers, et al., 349 F. Supp. 696 (S.D.N.Y. 1972) pro-

vide a sound analysis for Petitioner’s position that the

wholg project must be considered and not just 2,200 feet

of pipe. We respectfully disagree with the Court of

Appeals that those cases are distinguishable.

The Corps approach, affirmed by the Opinion of the

Court of Appeals, allows an environmental analysis of

2,200 feet of pipe just as if the pipe was lying out in

the marshes of South Mississippi without a massive

chemical plant at one end and 2,000,000 gallons a day

of industrial waste spewing out the other end. We expect

that type of attitude from the U.S. Corps of Engineers,

but we are keenly disappointed that the attitude also pre-

vails in the Fifth Circuit Court of Appeals.

12

CONCLUSION

This case is the most important environmental law case

ever to come out of the State of Mississippi. A review

of this case by the Supreme Court and a reversal of the

precedent set by the Court of Appeals regarding the

federal permitting system is necessary to the continued

vitality and existence of NEPA in the Fifth Circuit.

The case offers a clear opportunity for this Court to make

a pronouncement concerning the effect of the massive

federal permitting program on environmental law and

environmental impact statements.

We respectfully and urgently ask this Honorable Court

to grant our Petition for Writ of Certiorari.

Respectfully submitted,

SAVE THE BAY, INC.,

PETITIONER

/8/ Robert W. Smith

ROBERT W. SMITH

Attorney at Law

507 Lameuse Street

Biloxi, Mississippi 39530

EARL L. DENHAM

Attorney at Law

42A Washington Avenue

P.O. Box 596

Ocean Springs, Mississippi 39564

13

CERTIFICATE

I, ROBERT W. SMITH, attorney for the Petitioner,

do hereby certify that I have this day mailed a copy

of the Writ of Certiorari, via U.S. Mail, postage pre-

paid to:

Chief Appellate Section

Land and Natural Resources Division

Department of Justice

Washington, D.C. 20520

Attention: Nancy Firestone

L. K. Travis

Assistant U.S. Attorney

P.O. Box 2091

Jackson, Mississippi 39205

David B. Sebree

Legal Department

E. I. du Pont de Nemours & Company

Wilmington, Delaware 19898

Stanford E. Morris

Attorney at Law

P.O. Drawer 100

Gulfport, Mississippi

DONE, this the 2nd day of June, 1980.

/8/ Robert W. Smith

ROBERT W. SMITH

APPENDIX

la

APPENDIX

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 79-1482

SAVE THE BAY, INC.,

Plaintiff-Appellant,

V.

THE UNITED STATES CORPS OF ENGINEERS, UNITED

STATES ARMY, COLONEL DRAKE WILSON, and E.I. Du

PONT DE NEMOURS AND COMPANY,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Mississippi

Jan. 24, 1980.

Before BROWN, TJOFLAT and GARZA, Circuit

Judges.

GARZA, Circuit Judge:

Appellant appeals from refusal of the United States

Magistrate, acting on behalf of the District Court by

consent of the parties, to require the United States Corps

of Engineers to prepare an Environmental Impact State-

ment (EIS) as provided for under the National Environ-

mental Policy Act of 1969 (NEPA), 42 U.S.C. § 4821

et seg. Appellants argue the Court below erred in con-

cluding that the environmental assessment by the district

engineer was reasonable and based on substantial evi-

dence, that the activity involved was not a major federal

action significantly affecting the quality of the human

environment, and that the Corps of Engineers was not

required to consider the environmental consequences of

the entire project but only the effects of the installation

2a

and maintenance of a twenty-four inch outfall pipeline.

Appellees argue on appeal that Appellants have no

standing to challenge the actions of the Corps of En-

gineers. For the reasons stated below, we affirm the

ruling of the United States Magistrate.

FACTS

At the time this litigation began, the defendant, E.I.

Du Pont De Nemours & Co., Inc., proposed to construct

and operate a massive titanium dioxide manufacturing

facility in Delisle, Mississippi. Pursuant to this plan,

Du Pont sought necessary authorization and permits

from appropriate state and federal agencies.

On November 21, 1974, Du Pont sought authorization

from the defendant, Army Corps of Engineers, to install

a twenty-four inch diameter effluent line into the marsh-

lands and Bay of St. Louis. The effluent line would

carry approximately two million gallons per day of

industrial wastewater and discharge it into the Bay of

St. Louis. The line would be approximately 2,200 feet

in length extending into the Bay and construction would

require removal of 610 cubic yards of dredged material

from the Bay.

On February 3, 1975, the Mississippi Air and Water

Pollution Control] Commission, acting pursuant to au-

thority delegated to it by the Environmental Protection

Agency, issued a National Pollutant Discharge Elimina-

tion System (NPDES) permit to Du Pont allowing dis-

charge of the wastewater in accordance with the con-

ditions of the permit.

Following solicitation of comments from federal, state

and local agencies concerning the proposed pipeline con-

struction permit, the Corps of Engineers announced a

public hearing would be held on June 19, 1975, to answer

any questions concerning issuing of the pipeline construc-

3a

tion permit. In keeping with the Corps’ prior determina-

tion that only the construction of the pipeline was sub-

ject to their regulation, the public notice for the hearing

was limited to the installation of the twenty-four inch

diameter pipeline and made no mention of consideration

of other aspects of the Du Pont plant in the issuance of

its permit. On June 19, 1975 the hearing was held and

all proponents and opponents were allowed to express

their views. The proponents consisted mostly of govern-

mental or business organizations and generally testified

as to the favorable economic impact the plant would

have. The opponents, consisting’ mostly of ecological and

recreational organizations, testified generally that a po-

tential danger to marine life existed and that an En-

vironmental Impact Statement was necessary.

On July 17, 1975, Colonel Drake Wilson, District

Engineer for the Mobile Corps of Engineers, issued a

Statement of Findings assessing the impact the proposed

activity would have on the environment. The Corps de-

termined there would be no adverse effect on air quality

and that water quality would be only temporarily af-

fected. The findings also noted the issuance of the

NPDES permit and that the Environmental Protection

Agency had no objection to the issuance of the Corps’ per-

mit. The statement, also taking into consideration the

determinations of the Mississippi Marine Resources

Council and the Gulf Coast Research Laboratory, found

there would be no significant adverse effect on land use,

visual aesthetics, wildlife, sealife, vegetation, or historical

interests. Based on the administrative record, Colonel

Wilson directed that the permit be issued. The permit

only authorized building the pipeline and was subject to

several conditions, one of which required that Du Pont

have a proper NPDES permit governing the effluent dis-

charge.

The Plaintiff, Save the Bay, Inc., brought suit pur-

suant to the National Environmental Policy Act (NEPA)

4a

against the United States Army Corps of Engineers,

the United States Army, Colonel Drake Wilson, Mobile

District Office of the Corps of Engineers, and Du Pont

seeking declaratory and injunctive relief and monetary

damages. The case was referred to the United States

Magistrate by the District Judge and thereafter the

defendant’s Motions for Summary Judgment were granted

and judgment was entered December 16, 1977 ne

the complaint with prejudice.

STANDING

Save the Bay’s complaint alleges that it is a nonprofit

corporation organized under the laws of the State of

Mississippi; that its membership is primarily composed

of numerous full-time and part-time residents of Harri-

son and Hancock Counties in the State of Mississippi;

and that its members will be adversely affected econom-

ically, aesthetically and environmentally.

Appellee Du Pont urges on appeal that Save the Bay

has failed to establish standing under § 10 of the Ad-

ministrative Procedures Act, 5 U.S.C. § 702. Specifically,

Du Pont argues that under Sierra Club v. Morton, 405

U.S. 727, 92 S.Ct. 1861, 31 L.Ed.2d 636 (1972) and

United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37

L.Ed.2d 254 (1973), Save the Bay must allege that its

members “use” the area and that the proposed federal

action will significantly affect their “use”. Du Pont’s

reliance on Sierra Club v. Morton, supra, is misplaced.

Here, the Plaintiff has alleged economic, aesthetic and

environmental injury to its members and clearly has

gone beyond mere general allegations of grievance on

behalf of the public interest. Du Pont’s argument, that

failure to specifically allege “usage” of the geographic

area is fatal to Plaintiff’s standing, is without merit. An

obvious inference of the English language is that resi-

dents of a geographical area “use” that geographical

5a

area. An allegation of residence coupled with an allega-

tion of injury caused by federal action affecting the area

of that residence clearly demonstrates that the party

seeking review is among those injured. We fail to see.

how the acts of camping, hiking, fishing or sightseeing,

in a particular geographic location, held sufficient for

standing in United States v. SCRAP, supra, can be con-

sidered more relevant for purposes of standing than can

the act of residing in a particular geographic location.

REASONABLENESS OF THE CORPS’ DECISION

The Court below noted that the standard for review

of an agency determination that an Environmental Im-

pact Statement need not be prepared is whether such

determination is reasonable. This standard was set forth

by this Court in Save Our Ten Acres v. Kreger, 472 F.2d

463 (5th Cir. 1973). If the determination is reasonable

and made objectively and in good faith on a reviewable

environmental record, the determination must be upheld.

The Court below found that the environmental assess-

ment prepared by the Corps completely and fully ad-

dressed the possible environmental consequences, that the

assessment was based on substantial evidence, and that

Corps complied with appropriate federal statutes and

regulations. Appellants contend that the Corps’ de-

termination was unreasonable. They argue that the

testimony and evidence offered in opposition to the build-

ing of the pipeline and plant should compel the conclu-

sion that an EIS is required. The Appellants further

argue that the Corps abdicated its responsibilities by

failing to conduct independent studies and by consider-

ing the evaluations of other governmental agencies con-

cerning the pipeline’s potential adverse effects.

We do not agree with Appellant’s contentions. With-

out detailing every point and counter-point of evidence

before the Corps, it is clear that the Corps had testi-

mony, evidence and comments from individuals and gov-

6a

ernmental agencies which could lead it to reasonably

conclude that an EIS would not be necessary. The Corps

received and reviewed comments from several govern-

mental agencies‘ as well as from quasi-governmental and

business organizations. With little exception, all com-

ments from governmental agencies indicated there would

be no significant adverse impact on the environment. We

cannot agree with Appellant that consulting with these

agencies was improper. The National Environmental

Policy Act, 42 U.S.C. § 4332(2)(C) requires that federal

agencies consult with other agencies whose area of ex-

pertise is superior to their own. Of course, this should

not be understood as allowing the Corps to base their

determination solely on the comments of other agencies.

Perhaps the most basic requirement of NEPA is that all

federal agencies make an independent environmental

assessment of the proposed action. The Court below cor-

rectly recognized this in distinguishing this case from

Mahelona v. Hawaiian Electric Company, 418 F.Supp.

1328 (D. Hawaii 1976) wherein the Corps of Engineers

erroneously considered the advisements of the EPA as

determinative and consequently failed to independently

determine whether or not the proposed action would

have a significant impact on the human environment.

For these reasons we hold the Corps’ decision was not

unreasonable.

1 Among those agencies were the following: the Environ-

mental Protection Agency, the Department of Interior, Fish

and Wildlife Service, the Department of Commerce, the Na-

tional Oceanic and Atmospheric Administration, the Missis-

sippi Marine Resources Council, the Mississippi Air and

Water Pollution Control Commission, and the Mississippi

State Clearing House for Federal Programs.

Ta

A MAJOR FEDERAL ACTION?

Appellants contend the court below erred in not finding

the grant of the pipeline construction permit was a

“major Federal action significantly affecting the quality

of the human environment’, under 42 U.S.C. § 4832(2)

(C), and therefore requiring preparation of an EIS. In

furtherance of this contention they argue that granting

almost any Federal permit to this massive multimillion

dollar manufacturing plant should trigger the obliga-

tions of NEPA.

The Court below held that the provisions of NEPA

must be read in context of other language in the Federal

Water Pollution Control Act (FWPCA), 383 U.S.C.

§ 1251 et seq., which places control of water pollution

caused by discharges of effluents in the hands of the

states and the EPA. United States v. SCRAP, supra. The

court went on to hold, citing Sierra Club v. Hodel, 544

F.2d 1036 (9th Cir. 1979) and Port of Astoria v. Hodel,

8 ERC 1156, aff’d 595 F.2d 467 (9th Cir. 1979), that

the issuance of the Corps’ permit was not a sufficient

nexus between the Corps and construction of the Du Pont

plant to make the Corps a partner in such construction

and thereby “federalize” the construction of the Du Pont

plant. In other words, the granting of the pipeline per-

mit by the Corps was not a “major Federal action” within

the meaning of NEPA.

In addition to the Court’s holding, it should also be

noted that FWPCA, 33 U.S.C. § 1871(c) (1),? ordinarily

283 U.S.C. §1871(c)(1) and (2) provides as follows:

(c) (1) Except for the provision of Federal financial assist-

ance for the purpose of assisting the construction of publicly

owned treatment works as authorized by section 1281 of this

title, and the issuance of a permit under section 1342 of this

title for the discharge of any pollutant by a new source as de-

fined in section 1316 of this title, no action of the Adminis-

8a

prohibits the issuance of a NPDES permit from being

deemed a major Federal action significantly affecting the

quality of the human environment within the meaning

of NEPA. Furthermore, § (c) (2) prohibits Federal agen-

cies, under guidance of NEPA, from reviewing any ef-

fluent limitation under a NPDES permit or from im-

posing any effluent limitation as a condition precedent to.

issuance of a license.

The decision of the Court below in no way held that

the Corps was precluded from preparing an EIS because

of FWPCA, but instead held that the Corps’ determina-

tion, of whether or not issuance of the construction per-

mit was a “major Federal action’, was limited to con-

struction and operation of the pipeline itself and correctly

held that the environmental consequences of the effluent

was a factor to be excluded from their consideration.

In reaching our conclusion on this point we are not

unmindful of the impact that building of this massive

manufacturing plant will have on the people of Harrison

trator taken pursuant to this chapter shall be deemed a major

Federal action significantly affecting the quality of the human

environment within the meaning of the National Environ-

mental Policy Act of 1969 (88 Stat. 852); and (2) Nothing

in the National Environmental Policy Act of 1969 (83 Stat.

852) shall be deemed to—

(A) authorize any Federal agency authorized to

license or permit the conduct of any activity which may

result in the discharge of a pollutant into the navigable

waters to review any effluent limitation or other require-

ment established pursuant to this chapter or the ade-

quacy of any certification under section 1341 of this title,

or

(B) authorize any such agency to impose, as a con-

dition precedent to the issuance of any license or permit,

any effluent limitation other than any such limitation

established pursuant to this chapter.

9a

and Hancock Counties, but the requirements of NEPA

do not reach private acts—only “major Federal actions.”

We fail to see how granting of the pipeline construc-

tion permit, after issuance of a valid NPDES permit,

can be considered a major Federal action. An examina-

tion of the guidelines issued by the Council on Environ-

mental Quality, 40 C.F.R. 1500.6(c), indicates that a

private project does not become a “major Federal action”

merely because of some incidental federal involvement.

In this case, the pipeline itself was not a necessity for

operation of the plant. At least one alternative method

of discharge, not requiring any Corps permit, was avail-

able to Du Pont. We are not saying that the requisite

Federal action must be a condition precedent to private

action in order for preparation of an EIS to be required.

But we do hold that in order for there to exist “major

Federal action” some greater involvement, than is

present in the case at hand, must exist.

THE PIPELINE OR THE WHOLE PLANT?

Appellant’s most vigorously argued point on appeal

and perhaps the point which would control the outcome

of this case contests the Corps looking only to the en-

vironmental consequences of the pipeline construction

and maintenance instead of considering the entire Du

Pont project in its decision on whether or not to prepare

an EIS.’ Appellants assert that narrowing the scope of

inquiry to the pipeline construction alone is the “blinder”

approach which should be rejected by this Court. By

analogy they compare the Du Pont facility to a living

organism which at one end eats chlorine gas and at the

other end excretes hydrocloric acid, iron, chromium, zinc,

and other nastiness to the tune of 2,000,000 gallons per

day. Their argument is that but for the permit there

8 We express no opinion as to the proper scope and extent

of coverage of an EIS should one have been necessary.

10a

would be no pipeline; without the pipeline there would

be no excretion; without the ability to excrete the plant

would suffocate in its own waste. They argue that the

permit “enables” the plant to exist and therefore the

entire plant should be taken into consideration in whether

or not the pipeline construction permit should be issued.

In support of this “Enablement Theory”, appellants cite

Port of Astoria v. Hodel, swpra, Mahelona v. Hawaiian

Electric Company, Inc., supra, and Citizens for Clean

Air, Inc. et al. v. United States Army Corps of Engineers

et al., 349 F.Supp. 696 (S.D.N.Y.1972).

Upon review of these cases, this Court does not dis-

agree with their reasoning but the circumstances of those

cases are clearly distinguishable from those before us.

The case of Citizens for Clean Air preceded the FWPCA

Amendments of 1972 and therefore is no longer sup-

portive of the proposition advanced here. In Port of

Astoria there existed a long-term contractual relation-

ship between a Federal agency and a private corporation

in which the proposed private manufacturing plant was

entirely dependent upon electrical power to be supplied

by the Federal agency. In Mahelona the problem was not

that the Corps failed to examine the effects of the electri-

cal generating plant, but rather failed to review the con-

sequences of its own construction permit allowing a

wastewater discharge facility. In short, the results of

these cases do not compel the conclusion which the Ap-

pellants desire. Absent facts or circumstances which are

not present here, we decline to hold that NEPA required

the Corps as a matter of law to consider the entire Du

Pont facility in determining whether or not an EIS was

necessary.

AFFIRMED.