Petition for Writ of Certiorari — Illinois v. Army Corps of Engineers (Nos. 85-800, 85-785)

In Tus

Supreme Court of the United States

Ocroser Term, 1985

RIVER ROAD ALLIANCE, INC., et al.

Petitioners,

vs.

CORPS OF ENGINEERS OF THE

UNITED STATES ARMY, et al.

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

NEIL F. HARTIGAN

Attorney General, State of Illinois

ROMA JONES STEWART

Solicitor General, State of Illinois

100 West Randolph Street, 12th Floor

Chicago, Dllinois 60601

(312) 917-3000

Attorneys for Petitioner

People of the State of Illinois

PATRICIA ROSEN®*

EDWARD M. KAY

ANNE L. RAPKIN

JAMES L. MORGAN

Assistant Attorneys General

100 West Randolph Street, 12th Floor

Tiiinois 60601

Chicago,

(312) 917-2570

Of Counsel * Counsel of Record

Printed by Authority of the State of Illinois (P.O. 33028—75—11-6-85)

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a.

ssnitiendll

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i

QUESTIONS PRESENTED

1. In determining whether a federal agency’s decision not

to prepare an Environmental Impact Statement violates

the provisions of the National Environmental Policy Act,

should a “reasonableness” or an “arbitrary and capricious”

standard of review be applied by lower federal courts?

2. Did the Court of Appeals err in holding that where

a permit applicant claims there are no feasible alternatives

to its proposed project, a federal agency may disregard

its statutory duty to assess alternatives unless an envi-

ronmental plaintiff proposes a feasible alternative over-

looked by the applicant?

ii

LIST OF PARTIES

The following is a list of all parties involved in this ap-

plication for a Writ of Certiorari:

A. PETITIONERS:*

FP PP

River Road Alliance, Inc.

Coalition for the Environment, Inc.

New Piasa Chautauqua, Inc.

Charles F. Hobbs

People of the State of Illinois.

B. RESPONDENTS:

1.

2.

6.

Corps of Engineers of the United States Army

John O. Marsh, Jr., individually and as Secretary

of the Army

William R. Gianelli, individually and as Assistant

Secretary of the Army for Civil Works

Lt. Gen. Joseph K. Bratton, individually and as

Chief of Engineers, Corps of Engineers of the

United States Army

Col. Gary D. Beech, individually and as District

Engineer for the St. Louis District, Corps of

Engineers of tiie United States Army

National Marine Service Incorporated

* Petitioners River Road Alliance, Coalition for the Environment,

New Piasa Chautauqua and Charles F. Hobbs are filing a separate

petition.

TABLE OF CONTENTS

QUESTIONS PRESENTED .................

RE EEE Goce csccscccccccccccecces

TABLE OF AUTHORITIES .................

TEE, SSG eWeccccccccscccccccees

Chee bedesacesececcscccccccccs

STATUTES AND REGULATIONS

ET SURE U GE GhSGsebesescccccccccccce

STATEMENT OF THE CASE ...............

REASONS FOR ALLOWING THE WRIT:

I.

CERTIORARI SHOULD BE GRANTED TO RE-

SOLVE A CONFLICT AMONG THE CIRCUITS

OVER WHETHER A “REASONABLENESS” OR

“ARBITRARY AND CAPRICIOUS” STANDARD

OF REVIEW SHOULD BE APPLIED IN AS-

SESSING THE PROPRIETY OF AN AGENCY’S

DECISION NOT TO PREPARE AN ENVIRON-

MENTAL IMPACT STATEMENT UNDER THE

PROVISIONS OF THE NATIONAL ENVIRON-

MENTAL POLICY ACT ..........eceeeeees

II.

CERTIORARI SHOULD BE GRANTED TO RE-

VERSE THE SEVENTH CIRCUIT’S DECISION

JUDICIALLY REPEALING SECTION 102(2XE)

OF THE NATIONAL ENVIRONMENTAL POL-

ICY ACT BY ALLOWING A FEDERAL AGEN-

PAGE

CY TO DISREGARD ITS STATUTORY DUTY TO |

iv

ASSESS ALTERNATIVES WHENEVER A PER-

MIT APPLICANT CLAIMS THERE ARE NO

FEASIBLE ALTERNATIVES TO ITS PROPOSED

PROJECT AND THE ENVIRONMENTAL PLAIN-

TIFF HAS NOT PROPOSED A FEASIBLE

ALTERNATIVE OVERLOOKED BY THE PER-

ST MEE Conecécbeccaccketesuees ss 18

PEN obivbas oio08s ean encecdequsecess 23

APPENDIX (Presented in separate volume which

includes an index to Appendix)

TABLE OF AUTHORITIES

Cases PAGE

Boles v. Onton Dock, Inc., 659 F.2d 74 (6th Cir.

DE Basa ind hee es cessed dwadneebata ed 10

Bonner v. City of Prichard, 661 F.2d 1206 (11th

Gk EE cs ckdsvdediededinddecdddhencues 10

Cabinet Mountains Wilderness v. Peterson, 685

ff 5 a ns ie 10

Calvert Cliffs’ Coordinating Comm. v. United States

Atomic Energy Com’n., 449 F.2d 1109 (D.C.

Ge EE Wad dcdechedctend dundee gadedses 12, 19

Citizen Advocates for Responsible Expansion v.

Dole, 770 F.2d 423 (5th Cir. 1985) ...... 12-15, 18

Department of Public Works and Bldgs. v. Keller,

61 Ill. 2d 320, 335 N.E.2d 443 (1975) ...... 5

Vv

Dravo Basic Materials Co. v. Louisiana, petition

for cert. filed, 54 U.S.L.W. 3254 (U.S. Oct. 2,

Be Ss EE Sica ctusbavedsccdccssecs 8

Environmental Defense Fund, Inc. v. Corps of

Engineers, 492 F.2d 1123 (5th Cir. 1975) ..... 19

Foundation for North American Wild Sheep v.

United States Dep’t. of Agriculture, 681 F.2d

f Ft Ie errrerre TT 10, 16, 17

Fritiofson v. Alexander, 772 F.2d 1225 (5th Cir.

SEE bap ddecatdentesnsdainnkahaaedibandade 11

Gee v. Boyd, ___. U.S. ___, 105 S.Ct. 2123 (1985)

(White, J., dissenting from denial of Certiorari) 9, 11

Grazing Fields Farm v. Goldschmidt, 626 F.2d

en re 9

Hanley v. Kleindienst, 471 F.2d 823 (2d Cir. 1972),

cert. denied, 412 U.S. 908 (1973) ........... i)

Kleppe v. Sierra Club, 427 U.S. 390 (1976) ...... 12

Minnesota Public Interest Research Group v. Butz,

498 F.2d 1314 (8th Cir. 1974) ............. 15

NRDC v. Callaway, 524 F.2d 79 (2d Cir. 1975) ... 21

River Road Alliance, Inc. v. Corps of Eng’rs of

U.S. Army, 764 F.2d 445 (7th Cir. 1985) .... passim

Save Our Ecosystems v. Clark, 747 F.2d 1240 (9th

et GE cis pec canewess seeder Wenaeusee 21

Save Our Ten Acres v. Kreger, 472 F.2d 463 (5th

Ce | EE bie dédnGie dewedeeskecanouemen 10, 13, 14

Scherr v. Volpe, 466 F.2d 1027 (7th Cir. 1972) ... 28

Sierra Club v. Hodel, 544 F.2d 1036 (9th Cir.

SUED kdcccedscccccesantosesecvisoseevedoss 20

vi

State of Louisiana v. Lee, 758 F.2d 1081 (5th Cir.

1985), petition for cert. filed, 54 U.S.L.W. 3254

(U.S. Oct. 2, 1985) (No. 85-569) ......... 13, 14, 21

Steubing v. Brinegar, 511 F.2d 489 (2d Cir.

PEE: dbndines Huteoctinusdededewnebilenendess 20

The Steamboaters v. F.E.R.C., 759 F.2d 1382 (9th

Be ET dikndevavebdbcnwieswhatvudiehenesss 13

Township of Lower Alloways Creek v. Public Serv-

ice Electric & Gas Co., 687 F.2d 732 (3d Cir.

SE inh ddduindneensereeewesedcneetedenes 10, 11

Trinity Episcopal School Corp. v. Romney, 523 F.

ee EE SS Sov ocksveviwdeesesns 20

Webb v. Gorsuch, 699 F.2d 157 (4th Cir. 1983) ... 9

Winnebago Tribe of Nebraska v. Ray, 621 F.2d 269

(8th Cir.), cert. denied, 449 U.S. 836 (1980) ... 10

Wyoming Outdoor Coordinating Council v. Butz,

484 F.2d 1244 (10th Cir. 1978) ............ 10, 13

Statutes

EE aus buua eee ess vbeeesdibedesess 4

Be ED pabtdesnovddicasssiedesscdé 4

ED iC icncnvcachsecedsveedeans 4

nd nbc endees 9 bese seeseseseees 5

eas cee tines eeaeneusiwnee 4

i weed sethce caebewe ccesntuenens 4

i ccavucuduteecéecessdesupesies 4

i PD chudesediccuadcecviadbencddins 4,9, 11

SEE sid ivccdecceccvescecevecsocess 11, 12

I 11-12

ED so vvccccccccescccececces 12

EE nsec ccceccccceoceccescses 12

Bp EE 6 vo cccccctcvescocccdecens 4,9, 12

GB ED cccccescccccccccccess 4, 8, 18-22

Regulations

ye ED sc acecaccnccccccecescevcss 5

EE voi.ns ccvsceconseuencancess 5

EEE snvccevoncecepescevecesens 4

$8 C.F.R. parts SB0-B25 ...... 2. ccccccccccens 4

Bs | EPPTTUT TTT TTT TTTTT Tee 16

33 C.F.R. §230, Appendix B, par. 8a) ........ 21

33 C.F.R. §230, Appendix B, par. &(b) ........ 16, 21

Gs ED Sk ccescccvcdeseccoccccess 21

GD Ge TD be ccc ccescscesvsccscccses 21

Other Authorities

Shea, The Judicial Standard for Review of Envi-

ronmental Impact Statement Threshold Deci-

sions, 9 B.C. Envtl. Aff. L. Rev. 63 (1980) .... 11

In THE

Supreme Court of the Gnited States

Octoser Term, 1985

RIVER ROAD ALLIANCE, INC., et al.

Petiti ers,

vs.

CORPS OF ENGINEERS OF THE

UNITED STATES ARMY, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

OPINIONS BELOW

The majority opinion of the Court of Appeals and the

dissenting opinion of Judge Wood are reported at 764 F.2d

445 and are reproduced in the Appendix at App. 1-23. The

judgment of the United States District Court for the

Southern District of Illinois is not reported and is repro-

duced in the Appendix at App. 28-36. The Environmental

Assessment of the Corps of Army Engineers and its find-

ings of fact are reproduced in the Appendix at App. 38-67.

~™

JURISDICTION

The judgment of the Court of Appeals for the Seventh

Circuit was entered on May 17, 1985. Timely petitions for

rehearing with suggestions for rehearing en banc were

denied on August 8, 1985; five Circuit Judges voted, how-

ever, to grant rehearing in this case. (App. 26-27). This

petition for a Writ of Certiorari is timely filed within 90

days of that date. The jurisdiction of this Court is invoked

under 28 U.S.C. §1254(1).

STATUTORY PROVISIONS AND

REGULATIONS INVOLVED*

42 U.S.C. §$4332(1)

42 U.S.C. §4332(2\A)

42 U.S.C. §4332(2XB)

42 U.S.C. §4332(2XC)

42 U.S.C. §$4332(2XE)

33 C.F.R. Part 230, Appendix B, par. &(a)

33 C.F.R. Part 230, Appendix B, par. 8(b)

40 C.F.R. §1506.5(a)

40 C.F.R. §1506.5(b)

* These statutory provisions and regulations are set forth in the

separately bound Appendix to this petition at App. 71-74.

~§-

STATEMENT OF THE CASE

On October 5, 1982, the United States Army Corps of

Engineers (“Corps”) granted National Marine Service, Inc.

(“NMS”) a permit authorizing the exclusive, private use

by NMS of a five-acre portion of the Mississippi River

as a barge fleeting area. The Corps granted this permit

on the basis of an Environmental Assessment (“EA”) and

certain supplemental findings of fact (“FOF’’), in which

the Corps concluded that the project would not significant-

ly affect the quality of the human environment, thereby

making unnecessary the preparation of an environmental

impact statement (“EIS”) for this project.*

Substantial public and official opposition was voiced over

the location of NMS’s project in an area which combines

many nationally and regionally recognized unique and

significant features. The opposition sought to prevent

degradation of these features, including the loss of out-

standing scenic vistas and the destruction of certain in-

creasingly rare aquatic life and essential aquatic habitat.

This opposition culminated in the filing by petitioners of

the cases at bar, one filed by River Road Alliance, Inc.

and other public interest groups and concerned citizens

(“Alliance”), and the second filed by the Attorney Gen-

eral for the State of Illinois on behalf of the People of

the State of Illinois at the request of the Illinois Depart-

ment of Conservation (“S*=te”’). The plaintiffs challenged

1 NMS’s desire for this fleeting facility wis due in part to con-

gestion at one of the locks on Mississippi River which is be-

<>

the Corps’ non-compliance with the National Environmen-

tal Policy Act (“NEPA”), 42 U.S.C. §4321, et seq., and

the Corps’ own regulations 33 C.F.R. Parts 230 and 320

325. Jurisdiction of the State’s suit was based on 5 U.S.C.

§702 and 28 U.S.C. $1331. Jurisdiction of Alliance’s suit

was based on 5 U.S.C. §702, 28 U.S.C. §§$1331(a), 1337,

1361, and 16 U.S.C. §$§1504(c) and (gX1).

The District Court for the Southern District of Illinois

ruled: (1) that the Corps’ evaluation of the project’s en- _

vironmental impacts was inadequate to justify the Corps’

finding of no significant impact, in violation of section

102(2XC) of NEPA; (2) that the Corps’ evaluation of im-

pacts violated its own regulations; and (3) that the Corps

failed to assess alternatives to the project in violation of

section 102(2XE), its own regulations, and those issued by

the Council on Environmental Quality. (District Court

Opinion, App. at 32-35).

In a split decision the Seventh Circuit Court of Appeals

reversed the District Court, holding that the considera-

tion given by the Corps to environmental impacts was

neither arbitrary nor capricious. River Road Alliance, Inc.

v. Corps of Eng’rs of U.S. Army, 764 F.2d 445, 449-452

(7th Cir. 1985). (Seventh Circuit Opinion, App. at 6-12)

The Seventh Circuit further held that the Corps’ failure

to consider alternatives was excusable. 764 F.2d at 452-

453. (App. at 12-13).

NMS’ fleeting site is located along the Mississippi River

approximately one-half mile downstream from Grafton, IIli-

nois. Majestic limestone bluffs tower over the Mississippi

River along the shoreline adjacent to the fleeting site. For

nearly forty years the State of Illinois had sought to con-

struct a highway at the foot of the bluffs io provide public

access to these vistas. Its efforts finally succeeded in the

early 1970s with the completion of a four-lane highway

eho

with bicycle lanes between Grafton and Alton, Illinois,

which lies to the south of Grafton. Using federal funds,

the State had acquired scenic easements from and con-

demned land belonging to local landowners (including the

land immediately upstream of this site) for the purpose

of preserving the area’s natural beauty. (AR, Vol. II, pp.

35, 67, see also, Department of Public Works and Bldgs.

v. Keller, 61 Ill. 2d 320, 335 N.E.2d 443 (1975)). The scenic

value of this area was recognized at the national level by

Congressional designation of this highway as part of the

Great River Road. The Great River Road is the National

- Scenic Highway, created by Congress in 1973 (23 U.S.C.

§ 148) in order to provide the public with ready access

to scenic views and other unique features and recreational

opportunities along the length of the Mississippi River

from Lake Itasca, Minnesota, to the Gulf of Mexico. (23

C.F.R. §§661.4(b) and (e)) (AR, Vol. I, p. 256) (FOF at

App. 54-55)

In its EA, the Corps conceded that the bluff and river

areas at and auwnstream from the worksite provide some

of the most impressive and unique vistas of any area along

the Mississippi. (AR, Vol. I, p. 224) (EA at App. 39)

Although barges fleeted at the site would block any view

of the river from the 1500 feet of the highway adjacent

to the site and for substantial distances up and down-

stream from the site, the Corps concluded that this scenic

impact was insignificant. (AR, Vol. I, p. 224; Vol. II, pp.

40-63, 66-71 (EA at App. 39)

The Seventh Circuit determined that the Corps’ con-

sideration of the loss of these scenic vistas was adequate.

River Road Alliance, supra, 764 F.2d at 451. (Seventh

Circuit Opinion, App. at 10) The Corps’ evaluation of this

impact, however, focused solely on the 1500 feet of shore-

line adjacent to the site. The Corps ignored the fact that

==

the fleeting area would mar the vistas available from sub-

stantial portions of the road up and downstream from the

site. (AR, Vol. II, pp. 40-44; 66-71) The Corps and the

Seventh Circuit also ignored the fact that the view along

the four mile portion of the Great River Road nearest

Alton was already blocked by several barge fleeting areas,

making the project site one of the last unspoiled spots

of natural beauty along the Mississippi River. (AR, Vol.

II, pp. 71; 140-141; 159-160) The Corps also failed to con-

sider whether introduction of another fleeting area along

this portion of the Great River Road was consistent with

the prior State efforts to preserve the scenic character

of the area, focusing instead on the technical question of

whether the barge fleeting violated the State’s scenic

easements. (AR, Vol. I, p. 256) (FOF at App. 54-55)

The vicinity of the fleeting area also serves as valuable

habitat for certain increasingly threatened varieties of

aquatic life. One of the largest remaining mussel beds in

the Upper Mississippi and Illinois Rivers extends under

and downstream of the fleeting site. (AR, Vol. I, pp. 64-66)

Mussels are commercially harvested and play important

roles in both the food chain for certain fish and birds and

in the natural purification process of the river. (AR, Vol.

I, pp. 64-66) The river bottom underlying and near the

site also provides potentially irreplaceable overwintering

habitat for catfish, one of the primary commercially har-

vested fish in the Upper Mississippi River. (AR, Vol. II,

p. 151)

Both the United States Fish and Wildlife Service

(“USFWS”) and the Illinois Department of Conservation

(“IDOC”’) objected strenuously to the project because of

its potential adverse impacts on this aquatic life and

habitat. These two agencies were concerned that towboat

propeller wash accompanying the movement of barges into

élite

and out of the site could severely disrupt or even destroy

the mussel bed, either by burying the mussels under re-

suspended sediment or by striking or washing them away.

(AR, Vol. I, pp. 64-66; 69-71) USFWS and the Illinois

State Natural History Survey also noted that towboat pro-

peller wash could damage habitat for overwintering cat-

fish. (AR, Vol. I, pp. 268-272; Vol. II, p. 151)

The Corps’ consideration of potential impacts on the

mussel bed raised more questions than it answered. In

response to the warnings of IDOC and USFWS, but with-

out obtaining any input from those agencies, the Corps

requested the applicant to conduct a mussel study. (AR,

Vol. 1, pp. 164-165) The applicant concluded that although

“excessive sedimentation could eliminate virtually all of

the mussel species” present in the bed (AR, Vol. I, p.

184), the fleetizig area would not adversely affect the bed.

(AR, Vol. I, p. 186) The Corps, USFWS, and IDOC each

criticized the applicant’s failure to obtain information

essential to determining impacts—such as the amount of

barge traffic in and out of the fleeting site, existing uses

of the area, and the nature of the river bottom sediments.

(AR, Vol. I, pp. 208; 219-222) The Corps itself challenged

one of the applicant’s key conclusions: that river bottom

sediments resuspended by fleeting operations would not

be deposited on the bed. (AR, Vol. I, p. 257) (FOF at

App. 57) Nevertheless, the Corps failed to obtain the miss-

ing information or to reject the applicant’s key conclu-

sion. The Corps ~lso declined to consider the project’s im-

pact on overwintering catfish in its EA and FOF. None-

theless, the Seventh Circuit concluded that the considera-

tion given these impacts was not arbitrary or capricious.

River Road Alliance, supra, 764 F.2d at 452 (Seventh Cir-

cuit Op. at App. 11)

—-

The Corps also refused to independently develop and

evaluate any alternative sites for NMS’s project as it ’as

required to do under section 102(2XE) of NEPA. NMS had

claimed that no suitable alternative fleeting sites were

available. The Corps itself rejected this claim as unsup-

ported (AR, Vol. I, p. 258) (FOF at App. 58), but none-

theless failed to independently evaluate feasible alter-

natives with lesser adverse environmental impacts. (AR,

Vol. I, p. 258) (FOF at App. 58) The Seventh Circuit

found that the Corps could disregard its section 102(2XE)

duties in the absence of any efforts by petitioners to show

that NMS had overlooked some plausible alternative site.

River Road Alliance, supra, 764 F.2d at 452-453; (Seventh

Circuit Op. at App. 12-13)

REASONS FOR ALLOWING THE WRIT

CERTIORARI SHOULD BE GRANTED TO RESOLVE A

CONFLICT AMONG YHE CIRCUITS OVER WHETHER A

REASONABLENESS OR ARBITRARY AND CAPRICIOUS

STANDARD OF REVIEW SHOULD BE APPLIED IN AS-

SESSING THE PROPRIETY OF AN AGENCY’S DECI-

SION NOT TO PREPARE AN ENVIRONMENTAL IMPACT

STATEMENT UNDER THE PROVISIONS OF THE NA-

TIONAL ENVIRONMENTAL POLICY ACT.

This case provides yet another opportunity? for this

Court to resolve a longstanding conflict among the circuits

2 On October 2, 1985, a petition for a Writ of Certiorari was filed

in the case of Dravo Basic Materials Co. v. Louisiana, No. 85-569,

asking this Court to grant certiorari for the same reason discussed

here.

~

over the appropriate standard of review to be applied in

determining whether a federal agency’s decision not to

prepare an environmental impact statement (‘‘EIS’’) vio-

lates the provisions of the National Environmental Policy

Act (“NEPA”). (42 U.S.C. $4321 et seq.) See: Gee v. Boyd,

__.:;U'S. ___, 105 S.Ct. 2123 (1985) (White, J., dissent-

ing from denial of Certiorari).*

Section 102(2XC) of NEPA (42 U.S.C. §$4332(2XC)) re-

quires that an EIS be prepared for every major federal

action significantly affecting the quality of the human en-

vironment. The majority opinion found that the permit

issuance here was a major federal action, River Road

Alliance, Inc. v. Corps of Eng’rs of U.S. Army, 764 F.2d

445, 450 (7th Cir. 1985) (Seventh Circuit Op. at App. 7-8),

so the onlv remaining issue was whether this project had

a significant impact on some aspect of the human envi-

ronment.

At least two different standards are now being applied

by lower federal courts in reviewing findings of no signifi-

cant impac:. The First, Second and Fourth Circuits, like

the Seventh, will reverse such agency action only if it is

arbitrary and capricious. See: Grazing Fields Farm v.

Goldschmidt, 626 F.2d 1068, 1072 (1st Cir. 1980); Hanley

v. Kleindienst, 471 F.2d 823, 828-29 (2d Cir. 1972), cert.

denied, 412 U.S. 908 (1973); Webb v. Gorsuch, 699 F.2d

157, 159 (4th Cir. 1983). The Fifth, Eighth, Ninth and

Tenth Circuits, however, apply a “reasonableness” stand-

ard in reviewing an agency’s finding of no significant im-

3 In Gee v. Boyd, __. U.S. ___., 105 S.Ct. 2123 (1985), Justice

White stated in his dissent that certiorari should be granted to

end this confusion among the circuits over what standard should

be lied to an agency’s decision not to pre an EIS. (105

S. Ct. at 2126) Justice Brennan and Justice Marshall joined in

Justice White’s dissent.

—10—

pact. See: Save Our Ten Acres v. Kreger, 472 F.2d 463,

466 (5th Cir. 1973); Winnebago Tribe of Nebraska v. Ray,

621 F.2d 269, 271 (8th Cir.), cert. denied, 449 U.S. 836

(1980); Foundation for North American Wild Sheep v.

United States Dept. of Agriculture, 681 F.2d 1172,

1177-1178 (9th Cir. 1982); Wyoming Outdoor Coordinating

Council v. Butz, 484 F.2d 1244, 1248-1249 (10th Cir. 1973).

The Third Circuit has assumed, without deciding, that

a reasonableness test is appropriate. Township of Lower

Alloways Creek v. Public Service Electric & Gas Co., 687

F.2d 732, 741-742 (8d Cir. 1982). The Sixth Circuit requires

a “reasoned determination” to support a finding of no

significant impact, but has declined to choose between the

two competing standards. Boles v. Onton Dock, Inc., 659

F.2d 74, 75 (6th Cir. 1981). The Eleventh Circuit follows

the reasonableness standard adopted by the Fifth Circuit

since decisions of the Fifth Circuit rendered before Oc-

tober 1, 1981 are binding on it. See: Bonner v. City of

Prichard, 661 F.2d 1206 (11th Cir. 1981). The District of

Columbia Circuit has arguably developed a third stand-

ard for reviewing such agency action. Cabinet Mountains

Wilderness v. Peterson, 685 F.2d 678, 681-682 (D.C. Cir.

1982).4

4 The District of Columbia Circuit applies a four-part test:

(1) Whether the agency took a “hard look” at the problem.

(2) Whether the agency identified the relevant areas of en-

vironmental concern.

(3) As to the problems studied and identified, whether the

agency made a convincing case that the impact was insignifi-

cant.

(4) If there was an impact of true significance, whether the

agency convincingly that changes in the project suf-

ficiently reduced it to a minimum. (Cabinet Mountains Wilder-

ness, supra, 685 F.2d at 682).

lin

This conflict among the circuits is not merely semantic

or academic. Gee v. Boyd, ___. U.S. ___., 105 S.Ct. 2123,

2125 (1985) (White J., dissenting from denial of certiorari);

Fritiofson v. Alexander, 772 F.2d 1225, 1287 (5th Cir.

1985). It has been recognized by the courts and com-

mentators alike that greater deference to an agency’s

decision is usually given under the arbitrary and capri-

cious test than under the reasonableness test. See, e.g.

Township of Lower Alloways Creek v. Public Service

Electric & Gas Co., 687 F.2d 732, 742 (8d Cir. 1982);

Shea, The Judicial Standard for Review of Environmen-

tal Impact Statement Threshold Decisions, 9 B.C. Envtl.

Aff.L. Rev. 68, 79 (1980). It is for this reason that a more

rigorous standard of review has been developed by the

Fifth, Eighth, Ninth and Tenth Circuits in order to in-

sure that the purposes for which NEPA was enacted

would be carried out by federal agencies. That standard

should have been applied by the Seventh Circuit in this

case.

NEPA reflects congressional concern with environmen-

tal degradation and its long-term adverse effects on

biological survival and the quality of human life. NEPA

establishes substantive goals consistent with those con-

cerns, and creates a framework for accomplishing those

goals. The purposes of the statute are:

To declare a national policy which will encourage pro-

ductive and enjoyable harmony between man and his

environment; to promote efforts which will prevent

or eliminate damage to the environment and bio-

sphere and stimulate the health and welfare of man;

to enrich the understanding of the ecological systems

and natural resources important to the Nation * * *.

(42 U.S.C. §4321)

Section 101 provides that it is the federal government’s

“continuing responsibility . . . in cooperation with State

—12—

and local governments” to use all practicable means to

conduct itself as a trustee of the environment for future

generations, to avoid as far as ible environmental

degradation, to assure for all Americans esthetically pleas-

ing surroundings, to preserve important historic, cultural,

and natural aspects of our national heritage, and to achieve

an appropriate balance between population and resource

utilization. (42 U.S.C. §4331) Section 102 expressly directs

that, “to the fullest extent possible,” federal regulations

and laws be “interpreted and administered in accordance

with the policies of [NEPAJ’, and that all federal agen-

cies take an interdisciplinary approach in making decisions

which bear on the environment, and develop procedures

to insure that “unquantified environmental amenities and

values” are considered in decision-making along with eco-

nomic and technical considerations. (42 U.S.C. §§4332(1),

4332(2XA\B))

In addition, section 102 establishes the primary “action-

forcing” procedural mechanism by means of which federal

agencies implement the statute’s substantive goals and

policies. Kleppe v. Sierra Club, 427 U.S. 390, 409 (1976);

Calvert Cliffs’ Coordinating Comm. v. United States

Atomic Energy Com’n., 449 F.2d 1109, 1112-1113 (D.C.

Cir. 1971). This mechanism is what is commonly referred

to as the Environmental Impact Statement which must

be prepared for every major federal action significantly

affecting the quality of the human environment. (42 U.S.C.

§4332(2\C)) The preeminent purposes of this process are

to force federal agencies to take a “hard look” at the en-

vironmental consequences of a proposed project, consider

viable alternatives to the method chosen to achieve the

aims of the project, and endeavor to minimize adverse

environmental consequences of the proposal. Citizen Ad-

vocates for Responsible Expansion v. Dole, 770 F.2d 423,

431-432 (5th Cir. 1985).

—13—

A federal agency’s finding of no significant impact, how-

ever, pretermits this fact-gathering process designed by

Congress to ensure that environmental concerns are con-

sidered “to the fullest extent possible.” Save Our Ten

Acres v. Kreger, 472 F.2d 463, 466 (5th Cir. 1973); State

of Louisiana v. Lee, 758 F.2d 1081, 1085 (5th Cir. 1985),

petition for cert. filed, 54 U.S.L.W. 3254 (U.S. Oct. 2,

1985) (No. 85-569). Hence, “the spirit of the Act would

die aborning if a facile, ex-parte decision that the project

was minor or did not significantly affect the environment

were too well shielded from impartial review.” Save Our

Ten Acres v. Kreger, supra, 472 F.2d at 460. Consequent-

ly, the more searching reasonableness standard should be

applied in reviewing a finding of no significant impact to

ensure that federal agencies have lived up to the high

standards set by NEPA to take a “hard look” at every

potential environmental effect of a proposed project. See,

e.g., Wyoming Outdoor Coordinating Council v. Butz, 484

F.2d 1244, 1249 (10th Cir. 1973); Citizen Advocates for

Responsible Expansion v. Dole, 770 F.2d 423, 439 n.19

(5th Cir. 1985).

Under the reasonableness standard, an environmental

plaintiff has the initial burden of alleging facts that show

that a project may significantly degrade some human en-

vironmental factor. State of Louisiana v. Lee, supra, 758

F.2d at 1084; The Steamboaters v. F.E.R.C., 759 F.2d

1382, 1392 (9th Cir. 1985). Once this burden is met, the

court reviews the administrative record to determine

whether the agency reasonably concluded that the proj-

ect would have absolutely no effects which would signifi-

cantly degrade any aspect of environmental quality. State

of Louisiana v. Lee, supra, 758 F.2d at 1085. If the Court

concludes that no environmental factor would be signifi-

cantly degraded, the agency’s decision is upheld. State of

wie

Louisiana v. Lee, supra, 758 F.2d at 1084. But, on the

other hand,

. . . if the court finds that the project may cause a

significant degradation of some human environmen-

tal factor (even though other environmental factors

are affected beneficially or not at all) the court should

require the filing of an impact statement or grant (the

plaintiff] such other equitable relief as it deems ap-

propriate. Save Our Ten Acres v. Kreger, 472 F.2d

463, 467 (5th Cir. 1973).

The Court, therefore, need not determine whether the

project would degrade every aspect of environmental qual-

ity, but merely whether the project might affect above

a minimal level a single environmental factor. Citizen

Advocates for Responsible Expansion v. Dole, 770 F.2d

423, 432-433, 439 (5th Cir. 1985).

An application of the reasonableness standard in this

case demonstrates that the Corps improperly concluded

that NMS’s project would have absolutely no effects which

would significantly degrade any aspect of environmental

quality, and therefore, failed to take a “hard look” at the

consequences of its actions.

Here, petitioners raised a substantial environmental

issue concerning the project’s impact on the aesthetic

values of this area. Majestic limestone bluffs tower over

the Mississippi River along the shoreline adjacent to the

site chosen by NMS to fleet its barges. At the foot of

these bluffs, Illinois has constructed a highway providing

public access to these magnificent vistas and, using federal

funds, has sought to preserve the great natural and scenic

beauty of this portion of the highway. The aesthetic value

of this area was recognized at the national level by Con-

gressional designation of this highway as a portion of the

Great River Road, the only National Scenic Highway. The

=

portion of the Great River Road affected by NMS’s proj-

ect has been enjoyed by millions of people, many of whom

use it as the main access route to Pere Marquette State

Park, one of the most heavily visited parks in Illinois with

over one million visitors each year. The public also uses

the Great River Road for biking, hiking and jogging in

lanes specially provided for these purposes.

The fact that the instant project may affect this envi-

ronmentally sensitive area is not seriously disputed by

Respondents and, indeed, was conceded by the Seventh

Circuit in its majority opinion. The majority opinion found

that this project would be “‘an unfortunate eyesore mar-

ring one of the few remaining spots of essentially unspoiled

natural beauty on the Mississippi River * * *.” River

Road Alliance, Inc. v. Corps of Eng’rs of U.S. Army,

764 F.2d 445, 450 (7th Cir. 1985) (Seventh Circuit Op. at

App. 7) This adverse impact consists in the obstruction

of the scenic views from the Great River Road, and the

introduction of an industrial activity into a previously un-

disturbed natural setting. Precisely this kind of aesthetic

and visual degradation of the human environment is a

matter of Congressional concern under NEPA. Citizen

Advocates for Responsible Expansion v. Dole, 770 F.2d

423, 439 (5th Cir. 1985); See also: Minnesota Public In-

terest Research Group v. Butz, 498 F.2d 1314, 1322 (8th

Cir. 1974). Had the Seventh Circuit applied the reason-

ableness standard under these circumstances, it would

have been compelled to conclude that NMS’s project might

significantly degrade the human environment and to hold

that the Corps unlawfully issued a finding of no signifi-

cant impact.

Petitioners also raised substantial environmental issues

concerning the project’s impact on aquatic life at the pro-

ject site. One of the last remaining large mussel beds in

the Upper Mississippi River lies beneath and downstream

—16—

of the NMS site. The Corps required NMS to study

whether the fleeting site would significantly affect the

musse! bed. NMS found that excessive sedimentation (i.e.

resuspension of river bottom sediments by towboat pro-

peller wash and subsequent redeposition) could eliminate

virtually all of the fourteen mussel species present in the

bed, and that even moderate accumulations could eliminate

six of the fourteen species and reduce the population to

approximately one-half of its present level.

Having thus identified the levels of sedimentation at

which significant impacts would occur, neither the appli-

cant nor the Corps made any effort to determine the ex-

tent of sedimentation likely to occur here. Neither took

samples of the river bottom sediments at the site, nor

obtained information about the amount of barge traffic ex-

pected to move in and out of the site. The USFWS ques-

tioned the failure to acquire the first type of information

and the Corps’ own environmental expert questioned the

failure to obtain the latter. Contrary to its own regula-

tions, the Corps did not attempt to supply the applicant’s

missing data or to gauge the amount of sedimentation to

be expected or the extent of its impact on the mussel bed

before issuing the finding of no significant impact. 33

C.F.R. §230.7(e) and Appendix B, par. 8(b). The omission

of any meaningful consideration of such fundamental mat-

ters demonstrates that the Corps unreasonably concluded

that this project would have no significant impact on this

aspect of the environment. See: Foundation for North

American Wild Sheep v. United States Dep’t. of Agricul-

ture, 681 F.2d 1172, 1177-1179 (9th Cir. 1982).

The Corps attempted to mitigate the project’s impact

on the mussel bed by conditioning continued operations

on the absence of significant damage te the mussel bed.

(AR, Vol. I, p. 315) However, by placing this condition

iin

on the permit, it is clear that the Corps impliedly found

that this project could in fact affect the mussels above

a minimum level. The Corps’ “wait and see”’ attitude is

irrational and represents the very type of agency conduct

unacceptable under NEPA. Foundation for North Amer

ican Wild Sheep v. United States Dep’t. of Agriculture,

supra, 681 F.2d at 1181.

Moreover, as the record of the Corps’ public hearing

indicates, fleeting activities at the site may significantly

degrade habitat for overwintering channel catfish.

USFWS, as well as an aquatic biologist with the Illinois

Natural History Survey, argued that overwintering cat-

fish could be adversely affected by fleeting activities and

that channel catfish had diminished greatly in recent

years, indicating that further potential impacts on catfish

should be closely scrutinized. The Corps, however, did not

consider this potential impact in either its EA or FOF

(App. 38-42; 43-67), and therefore, its finding of no sig-

nificant impact was unreasonable.

The above discussion shows how the instant petitioners,

and indeed all environmental plaintiffs, would benefit from

an application of the reasonableness test in reviewing an

agency’s finding of no significant impact and its decision

not to prepare an EIS. Because NMS’s project might neg-

atively affect, above a minimal level, the aesthetic and

aquatic values identified in this case, tiie Corps unreason-

ably concluded that this project would have absolutely no

effects which would significantly degrade any aspect of

environmental quality. Therefore, had the Seventh Cir-

cuit applied the reasonableness standard, it would have

been required to hold that the Corps unlawfully issued

~ii-

a finding of no significant impact for NMS’s project, and

to direct the Corps to prepare an EIS.5

This case provides an opportunity for this Court to

resolve the conflict among the circuits over the review

standard to be applied in these circumstances. Therefore,

certiorari should be granted to articulate a test to ensure

that federal agencies live up to NEPA’s high standards

by adequately considering to the f ‘est extent possible

the potential environmental effects of proposed projects.

Il.

CERTIORARI SHOULD BE GRANTED TO REVERSE

THE SEVENTH CIRCUIT’S DECISION JUDICIALLY RE-

PEALING SECTION 102(2)E) OF THE NATIONAL ENVI-

RONMENTAL POLICY ACT BY ALLOWING A FEDERAL

AGENCY TO DISREGARD ITS STATUTORY DUTY TO

ASSESS ALTERNATIVES WHENEVER A PERMIT AP-

PLICANT CLAIMS THERE ARE NO FEASIBLE ALTER-

NATIVES TO ITS PROPOSED PROJECT AND THE EN-

VIRONMENTAL PLAINTIFF HAS NOT PROPOSED A

FEASIBLE ALTERNATIVE OVERLOOKED BY THE

PERMIT APPLICANT.

The action of the Seventh Circuit has produced a ques-

tion of first impression and national importance concern-

ing the affirmative duties of a federal agency under sec-

tion 102(2XE) of NEPA. Section 102(2XE) obliges agen-

5 Petitioners also raise} substantial environmental issues concern-

ing adverse effects on the historic towns of Elsah and Chautau-

a and recreational activities. Under the reasonableness standard,

t See oe ey ee ee a eed on

judicial review because petitioners have already shown that this

project may significantly affect some environmental factor. The

Corps, however, would be required to address these other con-

cerns in its EIS. Citizen Advocates For Responsible Expansion

v. Dole, 770 F.2d 423, 439, n.20 (5th Cir. 1985).

- =

cies to “study, develop and describe appropriate alter-

natives to recommended courses of action in any proposal

which involves unresolved conflicts concerning alternative

uses of available resources.” (42 U.S.C. $4332(2\E))

In an unprecedented decision, the Seventh Circuit has

determined that where a permit applicant claims there

are no feasible alternatives to its proposed project, the

federal agency may disregard its statutory duty to assess

alternatives unless an environmental plaintiff proposes a

feasible alternative overlooked by the applicant. This rul-

ing is contrary to the plain language of section 102(2XE)

and undermines NEPA’s goal of ensuring that agencies

are fully informed of the environmental consequences of

their actions.

In enacting section 102(2XE),

[Co ss] intended to emphasize an important et

of NEPA’s theme that all change was not pr

and to insist that no major federal project sho uld be d be

undertaken without intense consideration of other

more ecologically sound courses of action, including

shelvi ~ Se ee. or accomplishing the same

result by entirely different means. (Environmental

Defense Fund, Inc. v. Corps of Engineers, 492 F.2d

1123, 1135 (oth Cir. 1975)

The object of this provision is,

[to] ensure that each agency decision maker has

before him and takes into proper account all possi-

ble approaches to a particular project (including total

abandonment of the project) which would alter the

environmental impact and the cost-benefit balance.

pen A in that fashion is it likely the most intelligent,

7 y beneficial decision will ultimately be made.

alvert Cliffs’ Coordinating Comm., Inc. v. United

hone Atomic Energy Com’n, 449 F.2d 1109, 1114

(D.C. Cir. 1971))

—20—

Contrary to this express intent of section 102(2XE), the

Seventh Circuit has now decided that an agency’s duty

to “study, develop, and describe” alternatives is satisfied

by allowing the permit applicant alone to select and re-

ject alternatives. River Road Alliance, Inc. v. Corps of

Eng’rs of U.S. Army, 764 F.2d 445, 446-447 (7th Cir. 1985)

(Seventh Circuit Op. at App. 12-13) Not only does this

new rule ignore the applicable statutory language which

creates an agency obligation, not an applicant obligation,

but it defies common sense. It is obvious that a permit

applicant has no incentive to find a site or course of ac-

tion which is less convenient than the one he is pursuing

with the agency. Finding a feasible alternative with less

adverse environmental impact can only jeopardize his ap-

plication for the site which he prefers. In other words,

an applicant’s own economic self-interest precludes an ob-

jective assessment on his part of the alternatives. As

Judge Wood cogently noted in his dissent: “Permitting

the company by itself and for itself to find and propose

an alternative site less convenient for its pocketbook is

a little like consulting the fox about the best location for

the chicken house.” River Road Alliance, Inc. v. Corps

of Eng’rs of U.S. Army, supra, 764 F.2d at 457-458.

(Wood, J., dissenting). (Dissenting Op. at App. 22)

Section 102(2XE) was enacted to infuse an objective view-

point into the balancing of the applicant’s private economic

interests with the public’s interests in environmental qual-

ity and biological survival, For this reason, the courts

have consistently held that the agency’s responsibilities

under NEPA are primary and non-delegable, and that the

agency must independently evaluate alternatives submit-

ted by an interested party. Stewbing v. Brinegar, 511 F.2d

489, 496 (2d Cir. 1975); Sierra Club v. Hodel, 544 F.2d

1036, 1043-44 (9th Cir. 1976); Trinity Episcopal School

Corp. v. Romney, 523 F.2d 88, 94 (2d Cir. 1975). The

cali

Corps’ own NEPA-implementing regulations require the

Corps to independently verify information provided by an

applicant, 33 C.F.R. part 230 App. B, pars. &a), (b), as

do the regulations of the Council on Environmental Qual-

ity, 40 C.F.R. §1506.5(a), (b).* If, as the courts have said,

the alternative assessment is the “lynchpin” of the NEPA

process, (VRDC v. Callaway, 524 F.2d 79, 92 (2d Cir.

1975), no other approach makes sense.

In this case, the Corps itself rejected the applicant’s

analysis of alternatives, finding that it was insufficiently

broad and thorough:

[W]e believe several prospective fleeting sites could

be found as alternatives to [the applicant’s] proposed

site at Grafton . . . [W]e do not concur in applicant’s

conclusion that alternative sites do not exist. (AR,

Vol. I, p. 258) (FOF at App. 58)

Having rejected NMS’s conclusion that no alternatives ex-

ist, the Corps nonetheless chose to approve NMS’s appli-

cation without itself seeking any information about the

availability of any environmentally sounder alternative

site. In this manner, the Corps not only violated the man-

date of Section 102(2XE), but assured that an objective

attempt to find alternatives and balance public and private

needs would not be made.’

6 The majority = held that the Council’s regulations are

“nondirective”. (764 F.2d at 450) (Seventh Circuit Op. at 8). This

holding conflicts with rulings from other circuits which have found

these regulations to be binding on federal agencies. E.g., Save Our

Ecosystems v. Clark, 747 F.2d 1249, 1244 (9th Cir. 1984); State

of Louisiana v. Lee, 758 F.2d 1081, 1083 (5th Cir. 1985), petition

or cert. filed, 54 U.S.L.W. 3254 (U.S. Oct. 2, 1985) (No. 85-569).

7 The Corps justified its action on the ground that alternative

fleeting sites would not be as convenient for NMS as the site

NMS chose. (AR, Vol. I, p. 258) (FOF at App. 58). However, the

(Footnote continued on following page)

—22—

In its opinion in this case, however, the Seventh Cir-

cuit sanctioned this highly irregular conduct by ruling that

it was up to the environmental plaintiffs, not the Corps,

to “shoulder the buden” of proposing alternative sites.

River Road Alliance, Inc. v. Corps of Eng’rs of U.S.

Army, 764 F.2d 445, 452-453 (7th Cir. 1985) (Seventh Cir-

cuit Op. at App. 13) This ruling is inconsistent with the

fundamental thrust and purpose of NEPA. NEPA was

enacted for the benefit of the public and imposes affir-

mative duties on federal agencies, as “trustees of the en-

vironment for future generations,” to evaluate the envi-

ronmental consequences of their actions. (42 U.S.C. $4331)

These duties are imposed on the federal agencies, and not

on the concerned public for whose benefit NEPA was

enacted. Scherr v. Volpe, 466 F.2d 1027, 1034 (7th Cir.

1972).

In this case, the Seventh Circuit read section 102(2XE)

out of NEPA. Where the interested party is given the

responsibility for protecting the public’s interest and

where the public’s interest conflicts with its own, NEPA

has been judicially repealed. Certiorari should be granted

to address this action of the Seventh Circuit and to resur-

rect NEPA’s mandate to the federal agencies.

7 continued

fact that an alternative site may not be as convenient as the one

the applicant prefers does not mean that the alternative site is

not feasible and does not strike a reasonable balance between

public and private needs.

—23—

CONCLUSION

For the foregoing reasons, petitioner respectfully prays

that this Court grant its Petition for Writ of Certiorari.

Respectfully submitted,

NEIL F. HARTIGAN

Attorney General, State of Illinois

ROMA JONES STEWART

Solicitor General, State of Illinois

100 West Randolph Street, 12th Floor

Chicago, Illinois 60601

(312) 917-3000

Attorneys for Petitioner

People of the State of Illinois

PATRICIA ROSEN*

EDWARD M. Kay

ANNE L. RAPKIN

JAMES L. MORGAN

Assistant Attorneys General

100 West Randolph Street, 12th Floor

Chicago, Illinois 60601

(312) 917-2570

Of Counsel * Counsel of Record