Petition — Del-AWARE Unlimited, Inc. v. Baldwin

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NO.

IN THE SUPREME COURT OF ‘THE.

UNITED STATES

OCTOBER TERM, 1983

DEL~-AWARE UNLIMITED INC., et al.,

Petitioners,

Vv.

ROGER M. BALDWIN, District Engineer,

United States Corps of Engineers, et al.

Respondents

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

ROBERT RAYMOND ELLIOTT

ELLIOTT AND BELL, P.C.

1201 PENNSYLVANIA AVE., N.W.

SUITE 803

Washington, D.C. 20004

(202) 887-5858

ROBERT J. SUGARMAN

ROBIN T. LOCKE

Counsel for Petitioners

Of Counsel:

SUGARMAN & DENWORTH

121 S. Broad Street

Suite 510

Philadelphia, PA 19107

(215) 546-0162

October 31,1983

5 QUESTIONS PRESENTED

Be Are not challengers to an

administrative agency decision based on

an ex parte informal self-designated

"record" entitled to introduce evidence

in the District Court to prove their

well-pleaded allegations that the agency

has acted arbitarily and capriciously in

violation of the Administrative Procedure

Act, and has failed to include all

relevant material in the "record"?

» Must not the Corps of Engi-

neers, in authorizing a project intruding

on a National Historic Landmark comply

with a 1980 Congressional mandate to take

maximum possible action to minimize harm

to a National Historic Landmark, 16

U.S.C. §470h-2(f), rather than relying on

the action of another.“agency which °

admittedly failed to perform that statu-

tory function?

LIST OF PARTIES

i” oe 4

DEL-AWARE UNLIMITED, INC.; VAL SIGSTEDT,

COLLEEN WELLS; MARC SADOUX; MARION

W. MASLAND; TOWNSHIP OF BRISTOL;

NORMAN AND DIANE TORKELSON; THE

PHILADELPHIA FEDERATION OF

SPORTSMEN'S CLUBS; CHARLES GILMORE;

MARY ELLEN NOBLE; THE PENNSYLVANIA

STATE FEDERATION OF SPORTSMEN'S

CLUBS; HONORABLE RITA C. BANNING;

WATERSHED ASSOCIATION OF THE DEL~-

AWARE RIVER; HONORABLE JAMES C.

GREENWOOD; HONORABLE CARL FONASH,

Appellants

ROGER M. BALDWIN, individually, and as

District Engineer, U.S. Army Corps

of Engineers; ALEXANDER ALDRICH,

individually, and as Chairman of the

Advisory Council on Historic Preser-

vation; WILLIAM GORDON, individual-

ly, and as Assistant Secretary, U.S.

Department of Commerce; GERALD

HANSLER, individually, and as

Executive Director, the Delaware

River Basin Commission; HAROLD

DENTON, individually, and as Direc-

tor, Division of Nuclear Reactor

Regulation, U.S. Nuclear Regulatory

Commission; THE NUCLEAR REGULATORY

COMMISSION; THE HONORABLE PETER

DUNCAN, as Secretary Of The Depart-

ment of Environmental Resources of

the Commonwealth of Pennsylvania;

NESHAMINY WATER RESOURCES. AUTHORITY;

and PHILADELPHIA ELECTRIC COMPANY,

Appellees

TABLE OF CONTENTS

Questions Presented .....ceeeeeeesii

List Of PartleS ..ccecccccccccecs ii

Table of Contents ....ccceees cooodii

Table of Authorities ........eseeiy

Statement of Jurisdiction ..... oe |

Statement of FactS ..cccccccccees 1

Argument ..eeeeeees ee 16

CONCLUSION .cccccccccccvcccccccce 56

AEMGNGLN cccccoccvcecvcesceceessoce

TABLE OF AUTHORITIES

CASES:

Asareo v. U.S. Environmental

Protection Agency, 616 F.2d 1153,

ee SRE ee te aay 23,33

Baltimore Gas and Electric Co.

v. NRDC, U.S » s0s 8.Ct;

Tans Sl bcs GOCS A982) co ceeds 17,25,30,

34, 380,37%

Batterton v. Francis, 432 U.S. 416 38

Tareis «6 o.0.0 &'6 608 Lien t's 6866 ceed 35

Camp v. Pitts, 411 U.S. 135 (1973). 16,29,31,

32,34

Citizens to Preserve Overton Park <a 5 a0n

Ve Vol e 401 Vee 402 eh pet eee ’ ’ ’

ee 19, 20,25,

Citizens to Preserve Overton Park 30,37,39,

v. Volpe, 335 F.Supp. 873 (W.D. 40,43,47,53

Tenn. 1972) (on remand) “eevee eweneee 19

Como-Falcon Coalition, Inc. v.

U.S. Department of Labor, 465

F.Supp. 850 (D. Min. 1978) mod

ofh gr 609 F.2d 342 (8th Cir.

1979) cert den $66. Gs8. FsScvvece 27

County of Suffolk v. Secretary of

Interior, 562 F.2d 1368 (2d Cir.

1977) eeeeeeeeeee oeeeeeee oeeeeeeee 23,44

Delaware Water Emergency Group v.

Hansler, 536 F.Supp. 26 (E.D. Pa.

1981) aff'd, 681 F.2d 805 (3d

Cir. SET & oak. ct aail > s buataws s Cel oan

D.C. Federation of Civic

Associations v. Volpe, 459 F.2d

Lesh» S400, (ReGe Gas BOFahhee ia 48

Environmental Coalition of Nuclear

Power v. Nuclear Regulator

Commission, No. 75-1421 (34 Cir.»

Nov. 12, 1975 (Judgment Order)... 7

Fayetteville Area Chamber of

Commerce v. Volpe, 515 F.2d 1021,

1028 (4th Cir. 1975) cert den,

Dae Wee Obe FIDTOhoccccccecvrceer 23

Grazing Field Farms v. Goldschmidt,

626 F.2d 1068, 1072 (lst Cir.

Te a6 ae wd's.0 6 ¢-0 Hewes 660 04 oereee 23

Greene v. McElroy, 360 U.S. 474

Ta wae? co eea ce “ee eee oeeeeeeeeeeeeee 22

Harrisburg Coalition Against Runing

The Environment v. Volpe, 330

F.Supp. 918 (M.D. Pa. 1971)...... 53

Image of Greater San Antonio, Texas

v. Brown, 570 F.2d 517 (5th Cir.

a. ao. wih a cake ee ee eee 23

Izaak Walton League of America v.

Marsh, 655 F.2d 346 (D.C. Cir.

1981), cert den., 454 U.S. 1092

FAO En ee Ges reanecccenseccvcsosose 23

Kleppe v. Sierra Club, 427 U.S.

S90 (1976) wccccccvccccccccccccece 24,25

Louisiana Environmental Society,

Inc. v. Coleman, 537 F.2d 79,

fot Cars 1970) ¢ FOR Gan.ccccccsee 68

Louisiana Environmental Society,

-Inc. v. Dole, 707 F.2d 116,

(5th Cir. TR ac ae i a 29

Ma natee County v. Gorsuch, 554

F.Supp. 7798 (Hb. Fla. 1982)..... 29

Motor Vehicle Manufacturers Ass'n

v. State Farm Insurance Co.,

Uses ¢ £03 Bets 285 33, 35

Pennsylvania Public Utility

Commission v. Philadelphia

Electric Co., 460 A.2d 734 (Pa.

SEES es cccveonecs i¢tabbaweecnvecece 3

Philadelphia Council of Neighborhood

Organizations v. Coleman, 437 F.

Supp. 1341 (E.D. Pa. 1977), aff'd

Men, 578 F.2d 1375 (3d Cir. 1978) 21, 30

Roe v. Norton, 422 U.S. 391 (1974). 52

Save Our Ten Acres v. Kreger, 472

Tum Gee Seer Clb. 2S) coceccececes

Sierra Club v. U.S. Corps of

Engineers, 702 F.2d 1011, 1031

2 2a eae ee as 28

Soric v. Immigration and

Naturalization Service, 382 U.S.

285 (1965) 31

Stop H-3 Association v. Colemen,

533 F.2d 434 (9th Cir. 1976)

reh den sub nom Wright v. Stop

H-3 Association, 429 U.S.

aaa sc 5 ¢ A SA ee a

Stryker's Bay v. Karlen, 444 U.S.

SC TEMOUE dicts ds vg heknd 40 6.4 dn boas , 24

Texas v. New Mexico, 0.6. P

103 S.Ct. 2558 (1983).....+0- WE id

Thorpe v. Housing Authority of

Durham, 386 U.S. 670 (1966)...... 51

Township of Lower Alloways Creek

v. Public Service Electric and

Gas, 687 F.2d 732 (3d Cir.

’

CONOR cs sscd ede aes ukietves om

Township of Springfield v. Lewis,

6 Be 1973_(350 Cabs SPEsl ccesece 21

Vermont Yankee Nuclear Power 24, 30

‘Corp v. NRDC, 435 U.S. 519 34. 36

(1977) *enereeeeeeee#e#e *eneeeneeeseneeee#ee#e 37, 38

STATUTES

Administrative Procedures Act ss. ae

5 U.S.C. S551 Ct SOG. e cee eeeeeeces 17

Clean Water Act

33 U.S.C. 1251 et S@q..wcecceeeee 9

Department of Transportation Act roy aa

Section 4(f), 49 U.S.C. §1653(£). 52. 53

’

Fish and Wildlife Coordination Act 12

16 U.8.C. §661 et seg eee eeee eee

National Environmental Policy Act 1, 10

42 U.S.C. $433 et S@g...eeeeeeee-+12, 24

National HIstoric Preservation Act 2, 10,

16 U.S.C. 461 Et SEq..cceeeeecece 11,12

Section 110(f),/6 U.S.C. 39,40,53

470h-2(f) eeereeeveeeeeeeeee Sreyers. oy oy

44,45,56

Rivers and Harbors Appropriate Act 49,50

33 U.S.C. $401, et SEq...cceeeee 9

MISCELLANEOUS

Act of May 11, 1949, P.L. 1203 §l,

30 Paes S434i. 0.i.dc HOC Cok hoe Oe

vii

Delaware River Basic Compact

87-328, 75 Stat. 688 (1961).....

H.R. Rep. No. 96-1457, 96th Cong.

4nG Bees. 36 (1900) ceccceetbeosece

Frankfurter, "The Task of

Administrative Law", 75 U.Pa.L.

Rev. 614 (1927) w-cccccccccccccces

Jaffe, Judicial Control of

Administrative Action, 564-65

(1965) .ccccccccccccccccccccccccs

viii

- 54,

STATEMENT OF JURISDICTION

This is a petition for review

of a Judgment Order entered July 5, 1983

by the Court of Appeals for the Third

Circuit in Del-AWARE Unlimited, Inc., et

al. v. Roger M. Baldwin et al., Civil No.

83-1010, affirming without opinion an

Order entered December 17, 1982 in the

District Court for the Eastern District

of Pennsylvania in Del-AWARE Unlimited

Inc., et al. v. Roger M. Baldwin et al.,

Civil No. 82-5115, denying plaintiffs’

Motion for Preliminary Injunction. A

timely filed Petition for Rehearing was

denied on August 2, 1983. Jurisdiction

is conferred by 28 U.S.C. §2101(c).

STATEMENT OF FACTS

The issues in this petition for

review arise under the Administrative

Procedure Act, 5 U.S.C. §551 et seg., the

National Environmental Policy Act, 42

U.S.C. $4431 et seq. and Section 110(f)

_of the National Historic Preservation

Act, 16 U.S.C. §$470h-2(f).

Plaintiffs allege arbitrary and

capricious action by the Army Corps of

Engineers in issuing permits for the

Point Pleasant pumping station, one

component of the Point Pleasant Water

Diversion Project, without preparing an

Environmental Impact Statement. The

project was conceived in the 1960's to

divert up to 150 million gallons of water

per day from the Delaware River. The

water was to be used as supplemental

cooling water at the proposed Limerick

Nuclear Power Plant located thirty miles

away on the Schuylkill River in Limerick,

Pennsylvania, and to supplement public

drinking water supplies in Bucks and

1/ The text of these provisions is set

forth in the Appendix hereto.

Montgomery Counties in Pennsylvania. The

project, as originally conceived, has

been scaled down significantly due to

changes in population and need projec-

tions to 95 mgd

The primary project proponents

are defendant Philadelphia Electric

Company (PECo), the intended user of

approximately half the water, and defen-

dant Neshaminy Water Resources Authority

(NWRA) a municipal authority created by

Bucks County inter alia, to pump and

treat the water.

2/ Most recently, while the appeal was

pending in the Third Circuit, the reason-

ably anticipatable need of PECo for the

supplemental cooling water portion of the

water was cut in half by the Pennsylvania

Supreme Court in Pennsylvania Public

Utility Commission v. Philadelphia

Electric Company, 460 A.2d 734 (Pa.

1983), sustaining a Pennsylvania Public

Utilities Commission decision ordering

PECo to cancel or suspend one half of its

project. Equally significantly, on May

17, 1983 in a Bucks County nonbinding

referendum which its Commissioners have

agreed to enforce, the voters mandated

that the project be abandoned, and as a

(Footnote continues on next page)

The pumping station is now

under construction in the picturesque and

historically significant village of Point

Pleasant, prehistorically an important

point of ferry crossing over the Delaware

River, where the Delaware Canal is aiso

located. The Canal has been designated

as a National Historic Landmark, the

highest form of designation under the

National Register System. Point Pleasant

contains significant archeological

resources, and is a favorite spot along

the Delaware River for fishing, tubing,

and other recreational activities. Lower

Black's Eddy, where the water intake is

proposed to be located, is a spawning and

nursery area for American Shad, denomin-

ated a major fishery resource by the

(Continuing footnote from previous page)

2/ result, the Bucks County Commission-

ers have taken numerous actions to halt

the project. These efforts, so far only

partially successful, are continuing as

construction of the segment at issue

herein also continues.

Commonwealth of Pennsylvania, 30 P.S.

$431.

The proposed pump station for

which the Corps issued its permits

consists of a intake structure composed

of two 70 foot rows of screens and piping

sonnected by three 300 foot long, 42 inch

diameter conduits extending back into the

river banks. The conduit would then

combine and cross under the Delaware

Canal and enter a pumphouse facility

which would be elevated 65 feet, serviced

by outdoor transformers located about20 yards

from the Canal. The water would be

pumped through a transmission main up a

steep hillside to a proposed Reservoir

located some 2.4 miles away.

Segments of the project ex-

cluded from consideration by the Corps

in its permit review and approval include

the transmission main, the reservoir, the

Grcinking water treatment plant (for which

a separate permit was issued by the

Corps), and the ultimate uses.

Various aspects of the project

were studied by different agencies over

the past fifteen years, and many of the

required permits for different components

have been issued, over the continuous

opposition of the relevant fisheries

agencies. °/ However, other necessary

elements of the proposed system are still

in the initial planning and permitting

stages. A construction permit, but not a

operating permit, has been issued for

Limerick.

The project was endorsed in a

forty-four page Environmental Impact

Statement (EIS) prepared by the Delaware

River Basin Commission in 1973. Subse-

quently, in August, 1980, the DRBC

prepared a supplemental Environmental

37 Appeals from Pennsylvania Department

of Environmental Resources permits are

pending before the Environmental Hearing

Board as 83-177-H et al.

a “s

Eee

Assessment (EA) and later gave the

project another approval, while deferring

historical review to the Corps of Engi-

neers, and other aspects to the Pennsyl-

vania P.U.C. and the NRC. This decision

was challenged by groups and individuals,

virtually all different than the present

plaintiffs, in Delaware Water Emergency

Group et al. v. Hansler et al., 536

F.Supp. 26 (E.D. Pa. 1981) aff'd per

curiam, 681 F.2d 805 (3d Cir. 1982)4/,

(DELWEG).

In the DELWEG case,the DRBC

argued that its 1981 decision was not

final in that the NRC and the Corps of

Engineers had not yet exercised their

regulatory powers of review. The

distirct court, accepting this argument,

noted that the project would likely be

4/ Limerick had also been the subject of

a challenge, in Environmen

Powe

the subject of two additional Environ-

mental Impact Statements, one by the NRC

and one by the Corps. DELWEG, supra, 536

F.Supp. at 46-47. The DRBC ahd also

indicated that it could reopen its docket

decision at any time, if significant new

issues or circumstances come to light.

Based partly on this understanding, the

Court refused to require a further Impact

Statement from the DRBC.

The project never received tie

further in-depth environmental review

predicted to and envisioned by the dis-

trict court at the time the DELWEG

decision was handed down. Despite its

earlier assurances, the NRC has declined

to address the issue of the project's

adverse water quality impacts on the

Plaint s herein filed a Petition to

Reopen, in September, 1982, which the

DRBC, after this action was instituted,

denied. That action is one of the agency

actions challenged in this proceeding,

but is not part of this appeal.

Delaware River, claiming that that issue

was finally settled by the DRBC. This

issue is the subject of a pending admin-

istrative proceeding which the district

court deemed not yet ripe for review,

(Application of Philadelphia Electric

Company, No. 50-352, 50-353 (NRC ALSB).

On October 25, 1982 the Corps

concluded that no EIS for the project as

a whole or any segment was necessary, and

issued a segmented Section 404 Clean

Water Act and Section 10 Rivers & Harbors

Act permit for the intake and Delaware

Canal crossing, and Point Pleasant pump

station on the basis of a twenty page,

conclusory Environmental Assessment. It

concluded that no significant environ-

mental effects would occur, and adopted

virtually wholesale the findings of other

agencies which had not even purported to

deal with some of the issues and failed

to provide any independent analysis of

most environmental impacts. Objections

of U.S. Fish & Wildlife Service and

Pennsylvania Fish Comtianton ware swept

away by ignoring them or misstating their

role. Fish & Wildlife's concern

regarding cumulative effcts of this and

other proposed withdrawals on water

quality and fish was dismissed with the

claim that the diversion could be stopped

by the flick of a switch. No independent

consideration of alternatives was given,

contrary to the requirements of NEPA, 42

U.S.C. $§$4332(E).

In one utterly transparent

evasion of its responsibility, the Corps

stated that the DRBC decision foreclosed

any duty to find a minimally intrusive

crossing location across the Delaware

Canal, a Historic Landmark, for the pump

station despite the requirements of the

National Historic Preservation Act,

compliance with which the DRBC had

- 10 =

SS ee =

. specifically delegated to the Corps in an

exchange of letters in July, 1980 and

January, 1981.° There the Corps took

responsibility for ensuring that the

historic resources of Point Pleasant

would be adequately protected through

compliance with the Historic Preservation

Act.

An amendment to that Act

enacted in December, 1980, Section

110(f), 16 U.S.C. §470h-2(f), after the

DRBC had completed its review, imposed a

heightened requirement on federal permit-

ting agencies to undertake "to the

maximum extent possible. . . such plan-

ning and action as may be necessary to

minimize harm" to National Historic

Landmarks. The Corps proclaimed that the

DRBC's prior determination was disposi-

tive notwithstanding the specific delega-

tion of authority to the Corps, and

notwithstanding the fact that the DRBC

review had been conducted prior to the

enactment of Section 110(f).

This suit was filed on November

17, 1982, alleging that the Corps, DRBC,

and NRC, violated of, inter alia, the

National Environmental Policy Act, 42

U.S.C. $4332, et seg., Fish and Wildlife

Coordination Act, 16 U.S.C. $661 et seg.,

National Historic Preservation Act, 16

U.S.C. $470 et seg. and the Administra-

tive Procedure Act, 5 U.S.C. §706.

Plaintiffs filed a motion for

preliminary injunction to enjoin the

commencement of construction set for

January 1, 1983. Plaintiffs alleged

inter alia, that the Corps ignored

relevant factors, acted arbitrarily and

capriciously, failed and refused to

coordinate with the relevant fisheries

agencies, had predetermined the outcome

of its review, made only paper compliance

with the historic statute, and refused to

consider other relevant aspects and

at te

impact of the project, and alterntives in

determining not to prepare an EIS or to

require a less damaging location for the

crossing.

The Court scheduled a. hearing

on the Motion, but later limited the

proceedings almost entirely to argument

of counsel based on the documents which

were proferred by defendant Corps on

November 30th, as its "administrative

record". This was a two-carton set of

miscellaneous documents selected and

produced from the Corps' files, con-

sisting mostly of reports favorable to

the project and omitting some of the

documents which challenged or undermined

the favorable view. It also contained

hundreds of pages of public hearing

transcript and letters of opposition from

Bucks County citizens.

The DRBC "record" produced

during the proceedings was approximately

o» 12%

fifty pages long, consisting entirely of

the official DRBC public record, and

included none of the memoranda, studies,

correspondence or communications under-

lying the,DRBC's refusal to reopen its

decision. Other defendants filed no

record.

At the request of defendants,

appellants filed a detailed trial plan |

including the names of some nineteen

proferred witnesses, and listed some

sixty-three exhibits thought not to be in

the Corps' self-selected record, in-

cluding memoranda by or of Corps person-

nel indicating their predisposition, as

well as arbitrary action.

However, on November 30th, the

Court ruled plaintiffs could not produce

any witnesses except at the discretion of

the court, if the court determined that

it needed testimony to "“educate" it

(Al164-169). However, the Court made that

~ 44-\«

7 determination wholly on the basis of the

information actually contained in the

record and the argument of counsel.

Plaintiffs were not permitted to intro-

duce extra-record evidence or testimony,

with the exception of one witness, who

was permitted to testify for one hour, to

challenge or rebut the information

contained in the two agency "records" and

a few documents not objected to by

defendants. Hence, plaintiffs were

denied the right to prove evidentiary

facts not contained within the self-

selected ex parte administrative records

which they alleged would prove that

significant environmental impacts had

been ignored or swept under the rug.

The motion for preliminary

injunction was denied in a decision

issued from the bench on December 15,

1982. Consistent with its evidentiary

approach, the Court held that based “on

o 38m

the record" before it, plaintiffs had

failed to show that the Corps had acted

arbitarily or capriciously, or had failed

to disclose significant effects, or to

consider alternatives, or consult with

the fish agencies (A21, 22, 26).

I. THE THIRD CIRCUIT'S DOCTRINE DENYING

CHALLENGERS OF INFORMAL AGENCY

DECISIONS THE RIGHT TO INTRODUCE

EVIDENCE IS INCONSISTENT WITH THE

INTENT OF THE ADMINIS'TRATIVE PROCE-

DURE ACT, THE DECISIONS OF THIS

COURT, AND THE LAW OF OTHER CIRCUITS

This case presents the Court

with an increasingly severe problem last

addressed directly in Citizens to Pre-

serve Overton Park v. Volpe, 401 U.S. 402

(1970) and Camp v. Pitts, 411 U.S. 138

(1973), i.e., the right of challengers to

an informal ex parte administrative

action in a specific case to present

evidence, including witnesses and docu-

ments, to prove well-pleaded allegations

of arbitrary and capricious agency action

violating the standards of Section 10(e)

“ee

of the Administrative Procedures Act, 5

U.S.C. §706(2) (A), as elaborated by this

Court in Overton Park.

It brings to the Court a

critical need to establish a rule, as

enunciated by several Circuits, but

rejected by, inter alia, the Third

Circuit, that the "probing, in-depth

review" required by the A.P.A., while not

requiring a de novo hearing, does require

that challengers be allowed to present

evidence to prove their case.

It seeks this Court's determin-

ation such a right exists, as may be

implied from this Court's recent decision

stressing the existence of such pruce-

dures. Baltimore Gas & Electric Co. v.

NRDC, U.S. » 103 S.Ct. 2246, 51

L.W. 4678 (1983). There, this Court

stressed the availability of “as full a

presentation as desired" before the

agency in individual cases in sustaining

oo RF:

a general rule-making by the NRC (51

L.W., at 4683).

In Overton Park, this Court

ruled that in reviewing informal agency

action a court is to engage in "substan-

tial inquiry" and "a thorough, probing,

in-depth review" of informal agency

action. This Court reversed the circuit

court's grant of summary judgment in

favor of the agency based on litigation

affidavits submitted by the parties, Id

at 409, without reference at all to the

administrative record, and without the

challengers having been afforded the

opportunity for discovery of the agency

administrator (401 U.S., at 409).

This Court held that litigation

affidavits submitted by the agency were

mere “post-hoc rationalizations" of the

agency action and, as such, could not

provide a basis for judicial review.

(Id. at 419).

Hence, the Court remanded the case

for review based "on the full administra-

tive record" (Id. at 420), noting that

extra-record evidence should be admitted

by the court if necessary to enable it to

effectively review the administrative

record. Indeed the Court admonished the

lower court that:

"since the bare record may not

disclose the factors that were

considered or the Secretary's

construction of the evidence it may

be necessary. . . to reguire some

explanation in order to determine

if. . . the Secretary's action was

justifiable under the applicable

standard," Id. at 420.

On remand, the district court ruled that

plaintiffs were "entitled to offer expert

testimony to evaluate the investigation

of alternative routes by the Secretary. .

- [and] to show that there were in fact

feasible and prudent alternative routes”.

Citizens to Preserve Qverton Park v.

Volpe, 335 F.Supp 873, 877 (W.D. Tenn.

1972). The court proceeded to conduct a

=~: 1

twenty-five day evidentiary hearing.

(Id. at 878).

In affirming without opinion

the district court's ruling that deprived

plaintiffs of the right to introduce

evidence, the court below has acted

directly contrary to the teaching of

Overton Park. Plaintiffs' "Preliminary

Hearing Plan" listed 19 witnesses. Only

one was allowed to testify. Critical

documents which had not been included in

‘ the Corps of Engineers "administrative

record", including letters and memoranda

to and from the Corps, memoranda of

meetings or phone calls with Corps

officials, which cast doubt on the Corps'

stated basis for its decision, were

refused admittance except by the largesse

of the court.

The district court made it

clear that it proceeded on the basis

that: "the court has discretion to

«20.

permit [testimony outside the administra-

tive record] where it would tend to

advance specific allegations by the

plaintiffs that the administrative record

is deficient" (A146) (Emphasis added)

Elaborating, the court stated: "I said

it may be received; I didn't say it

absolutely will be received (A149); "I

{will] decide whether or not testimony is

necessary to educate me” (A150).

The district court's action was

consistent with the Third Circuit's

repeated affirmance without opinion of

lower court rulings which have denied a

right to introduce extra-record evidence

in review of informal agency actions.

6/ £E.g., Delaware Water Emergency Group

et al. v. Hansler, 536 F.Supp. 26, 46

(E.D. Pa. 1981), aff'd, 681 F.2d 805 (3rd

Cir. 1981); Philadelphia Council of

Neighborhood Organizations v. Coleman,

437 F.Supp. 1341 (E.D. Pa. 1978), aff'd,

578 F.2d 1375 (3d Cir. 1978); but see,

Township of Springfield v. Lewis, 18 ERC

1978 (3rd Cir. 1983).

o Se

In upholding such constricted review, the

Third Circuit has not only defeated the

strictures of this Court under the

Administrative Procedures Act, but has

seriously weakened the traditional common

law right to present evidence in an

effort to control administrative action.

Thus, inGreene v. McElroy, 360 U.S. 474

(1959) this Court stated that an ag-

grieved individual's right to confront

and cross examine evidence supporting an

agency decision is one of the "immutable

[principles] in our jurisprudence", (Id

at 496), and reflects “the Court's

concern that the traditional forms of

fair procedure not be restricted by

implication or without the most explicit

action by the Nation's lawmakers", (Id at

508).

The Second, Fifth and D.C.

Circuits have repeatedly followed the

Overton Park rationale and held that

«2! «

challengers of informal agency action “on

the administrative record" have a right

to introduce extra-record evidence,

particularly in cases under the National

Environmental Policy Act, to prove that

the record itself is deficient. E.g.,

County of Suffolk v. Secretary of Interi-

or, 502 F.2d 1368 (2d Cir. 1977); Izaak

Walton League of America v. Marsh, 655

F.2d 346, 369, n.56 (D.C. Cir. 1981);

Image of Greater San Antonio Texas v.

Brown, 570 F.2d 517, (5th Cir. 1978).

Other Circuits, however, have questioned

challengers' right to introduce extra-

s 7

record evidence. ’/

This Court has repeatedly

stated that although NEPA established

77 £.g., Grazing Field Farms v. Gold-

schmidt, 626 34 1068, 1072 (ist Cir.

1980); Fayetteville Area Chamber of

Commerce v. Volpe, 515 F.2d 1021, 1028

(4th Cir. 1975) cert den. 423 U.S. 912

(1975). See also, Asarco v. E.P.A., 616

F.2d 1153 (9th Cir. 1980).

significant substantive goals for the

nation, its mandate to the agencies is

"essentially procedural, i.e., to ensure

a fully informed and well considered

decision". Vermont Yankee Nuclear Power

Corp. v. NRDC, 435 U.S. 519, 558 (1978);

Stryker's Bay v. Karlen, 444 U.S. 223,

227 (1979). In Kleppe v. Sierra Club,

427 U.S. 390 (1976) this Court stated:

NEPA announced a national policy of

environmental protection and placed

a responsibility upon the Federal

Government to further specific

environmental gvuals by "all practic-

able means, consistent with other

essential considerations of national

policy” [citation omitted]. Section

102(2)(C), is one of the "action -

forcing” provision intended as a

directive to "all agencies to assure

consideration of the environm ntal

impact of their actions in decision-

making” Conference Report on

8/ Section 102(2)(C) requires a detailed

statement on the environmental impact of

the proposed action, including discussion

of unavoidable adverse effects of the

action, alternatives, short-term and

long-term benefits irretrievable commit-

ment of resources; and requires consulta-

tion with all relevant federal agencies,

and inclusion of their comments with the

proposal through all stages of the review

process. 42 U.S.C. §$4332(2)(C).

NEPA, 115 Cong. Rec. 40416 (1969)

(Id. at 409). (Emphasis added)

This Court went on to state in Kleppe

that it is the reviewing court's duty to

ensure the fulfillment of Congress intent

to assure such consideration during the

agency's development of a proposal, or

during its formulation of a position on a

proposal submitted by private parties,

Id, and that during this process the

agency takes a "hard look" at all the

environmental consequences. (Id. at 410,

n.21) Accord, Baltimore Gas & Electric

Co. v. NRDC, supra, 51 L.W. at 4678.

That case, reaffirming Overton Park,

stressed the Court's duty is to enforce

the twin purposes of NEPA, the duty to

"consider every significant aspect of the

environmental impact", and to disclose

them, and "that its decision is not

arbitrary or capricious" (51 L.W. at

4680). The procedures governing the

o 28

rulemaking at issue there are very

different from those applicable to this

action by the Corps.

But if the reviewing court's

task under NEPA is to determine whether

the environmental consequences were fully

reviewed and considered during the agency

decision-making process, then for a

reviewing court to prevent challengers

from presenting evidence to support

well-pleadings allegations that the "bare

administrative record" does not reflect

whether the consequences were considered

and disclosed, or whether consequences

were never identified, or were excluded

from the record, in case of informal

agency decisionmaking, defeats the

purpose of this Court's holdinas.

Persons challenging informal agency

action on a specific project, as distin-

guished from rulemaking or decision based

on an adversary record, should be allowed

as a matter of right, to prove their

case. While this is true generally

under Overton Park, it is particularly

important in NEPA cases.

In County of Suffolk, supra, a

leading case, the Second Circuit ex-

plained that extra-record evidence is an

essential means for challengers to

establish that the "record" compiled by

an agency under NEPA is itself deficient:

Generally. . . allegations that an

EIS has neglected to mention a

serious environmental consequence,

failed adequately to discuss some

reasonable alternative, or otherwise

swept “stubborn problems or serious

criticism under the rug" [citation

omitted] raises issues sufficiently

important to permit the introduction

of new evidence in the district

court, including expert testimony

with respect to technical matters,

both in challenges to the sufficien-

cy of an EIS [footnote citations

omitted] and in suits attacking an

agency determination that no such

statement is necessary [footnote

citations omitted]. (502 F.2d, at™

1385).

In Como-Falcon Coalition, Inc. v. U.S.

Department of Labor, 465 F.Supp. 850,

mee ye

858, n.l, (D.Minn. 1978) mod oth gr 609

F.2d 342 (8th Cir. 1979) cert den 446

U.S. 936, this reasoning was further

explicated:

If the federal agency has overlooked

or inadequately assessed a possible

adverse environmental impact, it is

unlikely that the deficiency will be

apparent from examination of the

record itself. Given the scheme of

NEPA and the scrutinzing with which

the judiciary must eye negative

assessments of environmental impact,

a reviewing court cannot be re-

stricted to the administrative

record.