Petition for Writ of Certiorari — Dravo Basic Materials Co. v. Louisiana

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Supreme Court of the United States

October Term, 1985

DRAVO BASIC MATERIALS COMPANY,

LOUISIANA MATERIALS COMPANY, INC.,

PONTCHARTRAIN MATERIALS CORPORATION,

Interveno’s and Petitioners,

Vv.

STATE OF LOUISIANA, EX REL WILLIAM

J. GUSTE, JR., ATTORNEY GENERAL, ET AL,

Plaintiffs and Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Joseph E. LeBlanc, Jr.* Frank J. Peragine

Andrew Podolnick James A. Burton*

MILLING, BENSON, Susan F. Clade

WOODWARD, HILLYER SIMON, PERAGINE, SMITH

PIERSON & MILLER & REDFEARN

1100Whitney Building 30th Floor - The Energy Centre

New Orleans, Louisiana 79130 1100 Poydras Street

(504) 581-3333 New Orleans, Louisiana 70163

Attorneys for Louisiana (504) 569-2030

Materials Company, Inc., Attorneys for Dravo Basic

Petitioner Materials Company,

*Counsel of Record Petitioner

*Counsel of Record

John R. Peters, Jr.*

JONES, WALKER, WAECHTER,

POITEVENT, CARRERE & DENEGRE

50th Floor-Place St. Charles

201 St. Charles Ave.

New Orleans, Louisiana 70170

(504) 581-6641

Attorneys for Pontchartrain

Materials Corporation,

Petitioner

*Counsel of Record

A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555

QUESTION PRESENTED FOR REVIEW

This petition for certiorari presents a single question

for resolution by this Court: the proper standard of judicial

review of certain federal agency decisions taken pursuant

to the National Environmental Policy Act of 1969, 42

U.S.C. §4321, et seq (hereinafter sometimes’*NEPA"’).

Specifically, the United States Army Corps of Engineers

granted shell dredging permits to each of the petitioners

herein, without preparing environmental impact

statements (hereinafter sometimes ‘“‘EIS’’), on the basis of

findings of no significant impact contained in environmen-

tal assessments.! That decision was challenged by the

plaintiffs below. The issue presented here is whether the

plaintiffs must merely show that the agency’s decision was

‘“‘unreasonable”’ and that the quality of the human environ-

ment ‘‘may be’’ degraded significantly by the proposed ac-

tivity, as held by the Fifth Circuit, or whether they must

IThe parties to this proceeding include the petitioners, all of

whom intervened as defendants in the prodeedings below: (1) Dravo

Basic Materials Company, successor to Radcliff Materials, Inc., and a

wholly owned subsidiary of Dravo Natural Resources Company, which

in turn is a wholly owned subsidiary of The Dravo Corporation; (2) Pont-

chartrain Materials Corporation, a wholly owned subsidiary of Pont-

chartrain Dredging Corporation; and (3) Louisiana Materials Company,

Inc., whose parent company is American Marine Holding Company

(hereinafter collectively referred to as the ‘‘Companies’’). Other parties

include the plaintiffs below: (1) the State of Louisana ex rel William J.

Guste, Jr. Attorney General; (2) Save Our Coast, Inc.; (3) The Orleans

Audubon Society; (4) Sierra Club; (5) Manchac Fisherman's Association;

(6) Environmental Defense Fund; and the original defendants below: (1)

Colonel Robert C. Lee, District Engineer, New Orleans District, U.S. Ar-

my Corps of Engineers; (2) Lieutenant General Joseph K. Bratton, Chief

of Engineers, Department of the Army; (3) William R. Gianelli, Assis-

tant Secretary (Civil Works), Department of the Army, and (4) John O.

Marsh. Jr., Secretary, Department of the Army (the original defendants

below will be referred to collectively as the ‘federal defendants).

demonstrate in accordance with principles of ad-

ministrative law that the agency's decision was ‘‘arbitrary

and capricious.’ The circuit courts of appeals are seriously

divided on this important question, which ought to be

resolved by this Court.

eager

iii

TABLE JF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW...................... i

Se I I oon cnanasnnanannnanseesonseseecsestesesnesesecens iil

TS RE BRE EB Bi nennssenccessessscarsccsscssescescencencsss iv

REPORTS OF THE OPINIONS OF THE

i aasincasiidaennabehite inaesiniansbnnccecageusenccusasens ]

iia aaa nthainmnnanacansssavensencincoastecsescnscesene 2

STATUTE AND REGULATION INVOLVED............... 2

MMe CO CER Ee CAB incjcccscsssescccsccccsecccnccsccsccssnsene 2

I asa ic od snake nhinhnnmbnnsabennnessernetocnaantsnsauacsencseuesans 4

CONCLUSION .................cssseseeees jessintancgntaieintenlnenannennasiniteties 13

TABLE OF AUTHORITIES

CASES: , Page

Citizen Advocates for Responsible Expansion,

Inc. v. Dole, 770 F. 2d 423 (5th Cir. 1985)..............00.. 7

Citizens to Preserve Overton Park, Inc. v. Volpe

401 U.S. 402, 28 L. Ed. 2d 136, 91 S. Ct. 814

SOT eiiciisioisehcetabsehiecietaalccsisskGicoenivndicctnchebaiaiiidiieaniasaaiainaeanniend 6,7,9

City of Alexandria, Virginia v. Federal Highway

Administration, 756 F.2d 1014 (4th Cir. 1985)........... 10

City of Davis v. Coleman, 521 F.2d 661 (9th Cir.

a cadcsieiciialdsaistlssaniashdicsasiucsiedibininaadaiesibiddibiienetbbanaanebsnatsenn 7

First National Bank of Chicago v. Richardson,

GR PU TOD CR COR LOTR stssccrnessensnsenes 10

Gee v. Boyd, ____ U.S. ____ , 85 L.. Ed. 2d 487, 105

kc I Se ickcstaeassateivncinttsha danaanaheiendbaaabiabninniannixensnnie 10

Hanly v. Kleindienst, 471 F.2d 823 (2nd Cir.

1972), cert. den., 412 U.S. 908, 36 L. Ed. 2d 974,

SCA. Slee ences 8,9,10

Hiram Clarke Civic Club, Inc. v. Lynn, 476 F. 2d

Ae ee FR bieh tarts: secinbecennniaintneteniabetipiminainemnesaaxene 7

Maryland-National Capita: Park & Planning

Commission v. United States Postal Service,

GT FB BO CEA. GR, BT anes csninsavesersccsvevsescceseccess 10

Minnesota Public Interest Research Group v.

Butz, 498 F.2d 1314 (8th Cir. 1974)... eee 7

NLRB v. Hearst Publications, 322 U.S. 111, 88

Dna AE a OG res Ok CEI a rvnesccsietincevneinssemecacssssens 9

River Road Alliance, Inc. v. Corps of Engineers,

Ae ee See ee CE es Bi ittrrarcccstsctninicrqceneics 10

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

REID STII secascsshscnccinichlnaislanclabidasnictbiaisbsaiadeapanananianniiiedaas 5.6,7

Save Our Wetlands, Inc. v. Sands, 711 F.2d 634

Pe RI MUU i chic csctscniccshaseiaetncoleccsesdtameunenic hd onnedaeceotnidaihiadiatoetiens 3

Sierra Club v. Marsh, 769 F. 2d 868 (ist Cir.

TABLE OF AUTHORITIES(\(continued)

CASES: Page

State of Louisiana, et al v. Col. Robert C. Lee, et

al, 596 F. Supp. 645 (E.D. La. 1984)... 1,3,4

State of Louisiana, et al.v. Col. Robert C. Lee, et

al, 758 F.2d 1081 (5th Cir. 1985)... eee 1,4,11

Wyoming Outdoor Coordinating Council v. Butz,

PA BG A, emer Tee 7

STATUTES AND ACTS:

OO CIT OB i ee 2

SO Stat. SOB, 6 U.S.C. BIOG (UOTE. ..nnvcosccscerccssssesssccevesess 8,9

62 Stat. 928, 28 U.S.C. $1254(1)..................cccssseese idee 2

BD UE a ee ee caiinssstccrnsiescnviensniiiieanadistlatiibbuainiiadinmaaentideatel 3

GE TARA et ieeniccicicnentiittashstsianitaniean-ebahiiiaaisiniiaiciisnaniaian 2

Clean Water Act, 86 Stat. 884, 33 U.S.C. §1344.............. 2

National Environmental Policy Act of 1969, 83

Stat. 852, 42 U.S.C. §§4321, 4331 and 4332......... i,2,3,9

Rivers and Harbors Act of 1899, 30 Stat. 1151, 33

CC, ORE. 5g cee tio aces xchetsacota 2

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1985

DRAVO BASIC MATERIALS COMPANY,

LOUISIANA MATERIALS COMPANY, INC..,

PONTCHARTRAIN MATERIALS CORPORATION,

Intervenors and Petitioners,

Vv.

STATE OF LOUISIANA, EX REL WILLIAM

J. GUSTE, JR., ATTORNEY GENERAL, ET AL,

Plaintiffs and Respondents.

PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

REPORTS OF THE

OPINIONS OF THE COURTS BELOW

The opinion of the United States Court of Appeals

for the Fifth Circuit (hereinafter ‘“‘the Fifth Circuit’’) was

reported at 758 F.2d 1081 (5th Cir. 1985). Appendix A. The

opinion of the United States District Court for the Eastern

District of Louisiana was reported at 596 F. Supp. 645

(E.D. La. 1984). Appendix D.

JURISDICTION

The judgment of the Fifth Circuit was entered on

April 29, 1985. Appendix A. A timely petition for rehearing

was denied on June 5, 1985. Appendix B. A thirty day ex-

tension of time within with to file a petition for writ of cer-

tiorari was granted by this Court on September 3, 1985.

Appendix C. This petition for certiorari was filed within

that thirty day extension. This Court's jurisdiction is in-

voked under 62 Stat. 928, 28 U.S.C. §1254(1).

STATUTE AND REGULATION i NVOLVED

This case turns primarily on the National En-

vironmental Policy Act of 1969, 83 Stat. 852, 42 U.S.C.

§§4321, 4331 and 4332, and on the regulations pro-

mulgated thereunder, particularly 40 C.F.R. §1501.4

(1979). The pertinent statute and regulations are attached

hereto as Appendix E.

STATEMENT OF THE CASE

The facts pertinent to this petition are straightfor-

ward and have not been contested in the courts below. Peti-

tioners are all sheil producers dredging clam and oyster

shell deposits from state-owned waterbottoms in Louisiana

pursuant to shell leases and other appropriate authoriza-

tions and permits issued by the state. Petitioners’ ac-

tivities also require federal permits issued by the United

States Army Corps of Engineers pursuant to the Rivers

and Harbors Act of 1899, 30 Stat. 1151, 33 U.S.C. §403,

and the Clean Water Act, 86 Stat. 884, 33 U.S.C. §1344.

Petitioners’ federal permits were up for five year exten-

sions in the latter part of 1982.

As part of its permit process. the Corps held public

hearings and undertook the studies necessary to prepare

environmental assessments pursuant to 42 U.S.C. §4332.

The environmental assessments issued by the Corps con-

tained ‘findings of no significant impact,’’ which allowed

the Corps to issue the requested permits to petitioner

without preparation of formal environmental impact

statements. The permits were in fact issued, and this litiga-

tion ensued.

The district court, which had jurisdiction over the

matter pursuant to 28 U.S.C. §1331, properly framed the

issue before it:

Stated simply, the Plaintiffs assert that each [en-

vironmental assessment] does in fact reveal

significant environmental impact and, as a mat-

ter of law, the relief sought [declaratory and in-

junctive relief ordering the Corps to prepare an

EIS and enjoining shell dredging activities in the

interim] is proper. Conversely, the Defendants

assert that given the undisputed facts, the Corps’

decision is a reasonable one.

State of Louisiana v. Lee, 596 F. Supp. at 652. The district

court also properly noted that the burden was on the plain-

tiffs to demonstrate the necessity for an EIS, but that

under applicable Fifth Circuit precedents ‘‘[t]he standard of

judicial review is whether the agency decision not to

develop an impact statement is reasonable and made objec-

tively and made in good faith »n a reviewable environmen-

tal record. If the decision is reasonable, the determinations

must be upheld.”’ Jd., citing Save Our Wetlands, Inc. v.

Sands, 711 F.2d 634, 644, reh. den., 718 F.2d 1096 (5th Cir.

1983). Based on the record before it, the district court con-

cluded that the environmental assessments issued by the

Corps in 1982, and supplemented, modified and re-issued

by the Corps in 1984 in conjunction with the litigation,

were reasonable and should be upheld. State of Louisiana

uv. Lee, 596 F. Supp. at 657.

The Fifth Circuit vacated and remanded. It noted

that the district court had properly stated the law of the

Circuit that a plaintiff must show the agency decision to be

unreasonable, but it disagreed with the district court’s

statement that an EIS is required if the environmental

assessment reveals that the quality of the human environ-

ment would be significantly degraded. It held that the pro-

per test requires a mere showing that the quality of the

human environment may be significantly degraded by the

proposed activity. State of Louisiana v. Lee, 758 F.2d at

1084. The Fifth Circuit decision has thus engrafted an addi-

tional element onto its reasonableness standard, and has ef-

fectively increased the split among the circuits by devising

what amounts to a third standard that may aptly be dub-

bed ‘‘reasonableness pius.”’ The lack of uniformity and the

increasingly stringent test imposed by the Fifth Circuit

will make it all the more difficult for a federal agency to

authorize any major federal action without preparation of

a full-blown EIS.

ARGUMENT

This case presents one straightforward issue that

has heen the subject of extensive litigation and inconsis-

tent result at the circuit court level, and which has not yet

been resolved by this Court: must a plaintiff challenging a

federal agency decision to permit a major federal action to

proceed without preparation of an EIS show that the agen-

cy was arbitrary and capricious in its decision, as required

generally when courts review administrative decisions, or

merely that it is reasonable to believe that the proposed

activity may have a signficant effect on the environment,

as held by the Fifth Circuit?

In this case, the courts below applied the Fifth Cir-

cuit’s reasonableness standard, which was first enunciated

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

1973). In that case, plaintiff sought to enjoin construction

of a federal office building, alleging that it would

significantly affect the environment. The GSA had selected

the site and commenced construction without preparing an

EIS. The district court refused any relief, holding that

GSA'’s determination that the project did not significantly

affect the environment could not be disturbed unless the

court concluded that the decision was arbitrary, capricious

or an abuse of discretion. The Fifth Circuit reversed and

remanded, invoking the reasonableness standard.

The Fifth Circuit reasoned in Save Our Ten Acres

that ‘‘the spiri* of the Act [NEPA] 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.’’? Accordingly, the court

found that the threshold determination must be subject to

a more ‘‘searching standard” under which a court must

determine whether the plaintiff has alleged facts which, if

true, would demonstrate that the project would not meet

NEPA criteria. If so, a reviewing court should examine and

weigh the evidence of both plaintiff and the agency to

determine whether the decision was reasonable.® The court

further held that this inquiry is not limited to consideration

of the administrative record but must also encompass

2Save Our Ten Acres,472 F.2d at 466.

3]d. at 466-67.

other evidence, including supplemental affidavits and

depositions, if it can be shown there was an inadequate

evidentiary development before the agency.

The Fifth Circuit based its decision in Save Our Ten

Acres on two factors: the Congressional intent underlying

NEPA, and ‘“‘the solid support’’ of this Court’s landmark

decision in Citizens to Preserve Overton Park, Inc. v.

Volpe.° It cited the language of Section 4332 of NEPA as

evincing a Congressional intent favoring the preparation of

an EIS in all close cases. That section directs that the en-

vironmental factors and effects of an agency action are to

be considered to the fullest extent possible. Thus, it was

suggested that an agency’s threshold decision not to

prepare an EIS precludes such consideration.

The court noted that while the Supreme Court ‘“‘made

it clear that the ultimate merit decision based upon a

weighing of these environmental considerations should be

reviewed under the arbitrary, capricious, or abuse of discre-

tion standard, a thorough study of Overton Park teaches

that a more penetrating inquiry is appropriate for court-

testing .. . of whether ail relevant factors should ever be

considered by the agency.’’® This conclusion is based on

Overton Park’s formulation of a two-step test for review of

a threshold decision. The initial determination is what

range of choices are available to the secretary and whether

the ‘‘decision can reasonably be said to be within that

range.’ Then, the reviewing court must find that ‘‘the

secretary could have reasonably believed’”’ that there were

no feasible alternatives. After this inquiry, the court stated

47d. at 467.

5401 U.S. 402, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971). on remand.

335 F. Supp. 873, supp. op., 357 F. Supp. 846 (W.D. Tenn. 1973).

6Save Our Ten Acres, 472 F. 2d at 466.

that the facts must be scrutinized to determine that the ac-

tual decision reached was not ‘arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with

law.’’?

The Save Our Ten Acres court further declared that

the threshold decision whether a proposed project is major

and significantly affects the environment is a ‘‘basic

jurisdiction-type conclusion’’® to which the traditional role

of review of administrative fact determination should not

apply.9

The original reasonableness test of the Fifth Circuit

has generally been followed by the Fighth,!° Ninth,!! and

Tenth!2 Circuits. The ‘‘reasonableness plus’’ standard first

enuciated by the Fifth Circuit in this action has apparently

not yet been considered by any other circuit, although it

has very recently been reiterated with approval by the

Fifth Circuit.!%

7Qverton Park, 91 S. Ct. at 823-24.

8Save Our Ten Acres, 472 F.2d at 466.

9In a later decision, the Fifth Circuit stated that its adoption of

the reasonableness standard was made necessary by its concern for the

spirit of NEPA, without reference to Overton Park. Hiram Clarke Civic

Club, Inc. v. Lynn, 476 F.2d 421 (5th Cir. 1973).

10Minnesota Public Interest Research Group v. Butz, 498 F.2d

1314 (8th Cir. 1974).

11 City of Davis v. Coleman, 521 F.2d 661 (9th Cir. 1975).

12 Wyoming Outdoor Coordinating Council v. Butz, 484 F.2d 1244

(10th Cir. 1973).

13 Citizen Advocates for Responsible Expansion, Inc. v. Dole, 770

F.2d 423 (5th Cir. 1985).

By contrast, other circuits have held plaintiffs to the

more rigorous requirement that they demonstrate that the

agency decision on the EIS threshold determination was

arbitrary and capricious before it will be upset. The leading

case in this regard came out of the Second Circuit: Hanly

v. Kleindienst, 471 F.2d 823 (2nd Cir. 1972), cert. den., 412

U.S. 908, 36 L. Ed. 2d 974, 93 S. Ct. 2290 (1973) and later

app. 484 F.2d 448 (2nd Cir. 1973), cert. den., Hanly v. Sax-

be, 416 U.S. 936, 40 L. Ed. 2d 286, 94 S. Ct. 1934 (1974)

(hereinafter Hanly IJ).

In Hanly IJ, the Second Circuit noted that the stan-

dard of review employed in evaluating such threshold

determinations by an agency is a consequence of the

characterization of the issues. Under the Administrative

Procedure Act, factual and policy determinations by an

agency are to be given considerable deference by the

reviewing court, while constitutional and statutory ques-

tions are subject to de novo review. Thus, 5 U.S.C. §706

provides:

To the extent necessary to decision and when

presented, the reviewing court shall decide all

relevant questions of law, interpret constitutional

and statutory provisions, and determine the

meaning or applicability of the terms of an agen-

cy action. The reviewing court shall. . . (2) hold

unlawful and set aside agency action, findings,

and conclusions found to be. . . (a) arbitrary,

capricious, an abuse of discretion, or otherwise

not in accordance with law.

Accordingly, Hanly II considered whether an EIS

threshold determination is a question of law or fact. The

decision pointed out that ‘‘where the court’s interpretation

of statutory language requires some appraisal of facts, a

neat delineation of the legal issues for the purpose of

substituted judicial analysis has sometimes proven to be

impossible or, at least, inadvisable.’"!4 The court added

that in this situation ‘‘the Supreme Court has authorized a

simpler, more practical standard, the ‘rational basis’ test,

whereby the agency’s decision will be accepted where it has

‘warrant in the record’ and ‘a reasonable basis in law.’ '’!5

Notwithstanding the availability of the rational

basis standard, the Second Circuit held that the arbitrary

and capricious standard of the Administrative Procedure

Act was clearly the appropriate one to apply in this situa-

tion. Since ‘“‘the meaning of the term ‘significantly’ as used

in §102(2)(c) of NEPA can be isolated as a question of law”’

appropriate for statutory interpretation by the court, the

appraisal of the adverse environmental consequences of the

project was viewed as a fact-sensitive inquiry by the agen-

cy which should not be overturned unless manifestly ar-

bitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law.!6

Unlike the Fifth Circuit, the Second Circuit found

the arbitrary and capricious standard to be in accordance

with this Court’s decision in Overton Park, and saw ‘“‘no

reason for application of a different approach here since the

APA standard permits effective judicial scrutiny of agency

action and concommitantly [sic] permits the agencies to

have some leeway in applying the law to factual contexts

in which they possess expertise."’!?

14 77anly IJ, 471 F.2d at 829.

157q., citing NLRB v. Hearst Publications, 322 U.S. 111, 131, 88

L. Ed. 1170, 64 S. Ct. 851 (1944) (emphasis added).

167d, at 828-30, citing 5 U.S.C. §706 (2"AN1976).

177d. at 829-30.

The Second Circuit in Hanly IJ noted that Congress

could have mandated that every major federal action re-

quires an EIS, but declined to do so. Instead, Congress

prefaced its declaration with the word “‘significant.’’ Accor-

dingly, the court espoused two relevant factors that an

agency must apply to each factual context:

1) [T]he extent to which the action will cause

adverse environmental effects in excess of those

created by existing uses in the area affected by it,

and 2) the absolute quantitative adverse en-

vironmental effects of the action itself, including

the cumulative harm that results from its con-

tribution to existing adverse conditions or uses in

the affected area.!8

The arbitrary and capricious standard of the Second

Circuit has also been adopted by the Fourth!9 and

Seventh29 Circuits.

187q at 830-31.

19City of Alexandria, Virginia v. Federal Highway Administra-

tion, 756 F.2d 1014 (4th Cir. 1985). The issue was most recently before

this Court on a petition for certiorari to review a Fourth Circuit decision

upholding once again the arbitrary and capricious standard. Gee v.

Boyd. __. U.S. ___ . 1€5 S. Ct. 2123, 85 L. Ed. 2d 487 (1985).

20First National Bank of Chicago v. Richardson, 484 F.2d 1369

(7th Cir. 1973). The Seventh Circuit has very recently reaffirmed its

adherence to the arbitrary and capricious standard. River Road

Alliance, Inc. v. Corps of Engineers, 764 F.2d 445 (7th Cir. 1985), reh.

den.. F.2d ____ (7th Cir. 8/8/85).

The other circuit courts of appeal have either not addressed the

question clearly, or have not resolved it definitively. The District of Col-

umbia Circuit has adopted a hybird test which attemp(s to incorporate

elements of both the reasonableness standard and the arbitrary and

capricious standard. See Maryland- National Capital Park & Planning

Commission v. United States Postal Service, 487 F.2d 1029 (D.C. Cir.

1973). A result-oriented hybrid test may also be the direction in which

the First Circuit is moving, as indicated by its very recent decision in

Sierra Club v. Marsh. 769 F.2d 868 (1st Cir. 1985).

One can certainly agree with the Fifth Circuit's view

that NEPA represents a clear expression of Congressional

concern for the environment, without accepting its cor-

ollary that settled principles of administrative law should

therefore be set aside, that NEPA should be made to say

what in fact it does not say, and that a certain and clear

standard of judicial review should be replaced by an uncer-

tain and ambiguous standard. The conflicting standards of

judicial review of the critical threshold determination

reduce the discretion and the deference accorded to the ad-

ministrative agency (a result for which there is no indica-

tion of any Congressional intent in NEPA) and make the

work of federal agencies in those circuits which have

adopted the reasonableness standard that much more

onerous and burdensome.

The confusion created by the decision below is

magnified by the Fifth Circuit’s holding that the plaintiff

does not need to show that the quality of the human en-

vironment would be significantly degraded by the propos-

ed activity, but merely that it may be significantly degrad-

ed. State of Louisiana v. Lee, 758 F.2d at 1084. It is hard

to imagine any decision by any federal agency, or any type

of commercial activity such as that engaged in by the Com-

panies, which is not threatened by such a sweeping and at

the same time ill-defined standard. As a result of the

vagueness and uncertainty of the standard being applied

by the Fifth Circuit, the Companies are facing the possible

shutdown of their entire industry in the State of Louisiana,

despite a finding of no significant impact on the environ-

ment by the Corps and the decision by the reviewing court

that the Corps’ determination was reasonable.

The issues framed by this petition are of substantial

public significance and interest, as demonstrated by the

large number of very recent circuit court decisions address-

ing the issue.*! Unfortunately, the recent decisions have

worked greater mischief than merely perpetuating the con-

flict that has existed among the circuits for more than a

decade; they have also deepened the conflict and made the

applicable standard of judicial review even more am-

biguous and uncertain. A prime example of this regrettable

trend is the Fifth Circuit's opinion in this case, which has

established an ill-defined and difficult ‘reasonableness

plus’’ standard that has no justification in NEPA or in

settled principles of administrative law. These are issues of

great importance and concern not only to private entities

such as the petitioners, but also to the Corps and other

federal agencies, and they are issues ripe for resolution by

this Court.

4. , ‘ ‘

2lSee notes 13. 19 and 20 above. and accompanying text.

i i Dei eee

CONCLUSION

For the foregoing reasons, petitioners respectively

submit that a writ of certiorari should issue, and that the

judgment of the Fifth Circuit should be reviewed and, after

due proceedings, reversed.

Joseph E. LeBlanc, Jr. Frank J. Peragine

Andrew Podolnick James A. Burton

MILLING, BENSON, Susan F. Clade

WOODWARD, HILLYER, SIMON, PERAGINE,

PIERSON & MILLER SMITH & REDFEARN

1100 Whitney Building 30th Floor-The Energy

New Orleans, LA 70130 Centre

(504)581-3333 1100 Poydras Street

Attorneys for Louisiana New Orleans, LA 70163

Materials Company, Inc., (504)569-2030

Petitioner Attorneys for Dravo Basic

Materials Company,

Petitioner

John R. Peters, Jr.

JONES, WALKER,

WAECHTER, POITEVENY.

CARRERE & DENEGRE

50th Floor-Place St. Charles

201 St. Charles Ave.

New Orleans, LA 70170

(504) 581-66-11

Attorneys for Pontchartrain

Materials Corporation,

Petitioner

October . 1985

CERTIFICATE OF SERVICE

I certify that copies of the foregoing petition for writ

of certiorari have been served by hand or United States

Mail, postage prepaid, on counsel of record for respondents

and all other parties.

New Orleans, Louisiana, October . 1985.

James A. Burton

A-l

APPENDIX A

STATE OF LOUISIANA, et al.,

Plaintiffs-Appellants,

Colonel Robert C. LEE, et al.,

Defendants-Appellees.

No. 84-3699

United States Court of Appeals,

Fifth Circuit.

April 29, 1985.

Before CLARK, Chief Judge, GOLDBERG, and

TATE, Circuit Judges.

CLARK, Chief Judge:

Plaintiffs appeal the district court's summary judg-

ment dismissing their claim that the National Environmen-

tal Policy Act (NEPA) required the U.S. Army Corps of

Engineers (Corps) to complete an environmental impact

statement before renewing six permits for shell dredging in

Louisiana waters. We vacate and remand.

In 1982 the Corps, pursuant to the Rivers and Har-

bors Act, 33 U.S.C. § 403, and the Clean Water Act, 33

U.S.C. § 1344, renewed six five-year permits allowing the

holders to dredge for shells in the Louisiana Gulf Coast

area, which consists of the Gulf of Mexico, East and West

Cote Blanche, Four League Bay, and Vermilion Bay, as

well as in Lake Pontchartrain and Lake Maurepas. Before

issuing the renewals, the Corps performed the environ-

A-2

mental assessment mandated by the Council on En-

vironmental Quality NEPA Regulations, 40 C.F.R. §

1508.9. After reviewing this assessment the Corps conclud-

ed that NEPA did not require preparation of an impact

statement and instead issued a finding of no significant im-

pact under 40 C.F.R. § 1508.13.

Plaintiffs, five private environmental groups! and

the state of Louisiana, then filed this suit seeking (1) a

declaratory judgment that the renewal of the permits

without preparation of an impact statement violated

NEPA and (2) an injunction requiring the Corps to rescind

the permit extensions and to prohibit further dredging un-

til an adequate impact statement is prepared. Four of the

companies who had received the extensions, Radcliff

Materials, Inc., Louisiana Materials Company, Inc., Pont-

chartrain Materials Corp., and Pontchartrain Dredging

Corp., intervened as defendants pursuant to Fed.R.Civ.P.

24.

After plaintiffs moved for summary judgment, the

Corps responded with a motion to suspend the court pro-

ceedings and remand the record for further consideration

by the Corps. The court granted the Corps’s motion, but

allowed only about nine weeks for the reconsideration. At

the end of this period the Corps filed a revised environmen-

tal assessment and findings of fact and again entered a

finding of no significant impact. The Corps’s simultaneous

motion to remove the 1982 environmental documents from

the record was denied.

1 Save Our Coast, Inc., The Orleans Audubon Society, Sierra Club,

Manchac Fisherman's Association, and the Environmental Defense

Fund.

A-3

Both parties then moved for summary judgment.

The district court granted defendants’ motion and dismiss-

ed plaintiffs’ actions.

On appeal plaintiffs maintain that the district

court’s order was erroneous because defendants failed to

establish that there was no material dispute as to whether

| the Corps was reasonable in concluding that no significant

environmental impact would result from continuing the

dredging. They also assert that the judge should not have

considered the restrictive conditions imposed on the per-

mits in reviewing the Corps'’s decision. Finally they ask us

to order the district court to enter summary judgment in

their favor and for an injunction against further dredging

until the impact statement is completed.

NEPA requires the preparation of an impact state-

ment whenever a major federal action significantly affec-

ting the quality of the human environment is propo:ed. 42

U.S.C. § 4332(C). The district judge stated that the NEPA

regulations prepared by the Council on Environmental

Quality indicated that the Corps’s decision on extending

these permits constituted ‘‘major federal action.’’ 596

F.Supp. 645, 651 n. 7 (E.D. La. 1984). At oral argument

before the district court, the attorney representing the

Corps stated that he was not asserting the decision did not

represent major federal action Therefore, the only question

presented is whether continuation of the dredging will have

a significant impact on the human environment.

A-4

All parties agree that unrestricted dredging would

have a significant environmental effect. 596 F.Supp. at

655. The defendants contend, however, that the restrictive

conditions imposed on the dredging permits reduce the ef-

fect below the level of significance. Plaintiffs assert that

these restrictions should not be considered in assessing the

impact of the dredging and, in the alternative, even if they

are considered the dredging will still have a significant ef-

fect on the human environment. For their first point they

rely on an interpretive document issued by the Council on

Environmental Quality, ‘‘Forty Most Asked Questions

Concerning CEQ’s National Environmental Policy Act

Regulations.’ 46 Fed.Reg. 18,026 (1981). In this document

the Council stated: ‘‘[m]itigation measures may be relied

upon to make a finding of no significant impact only if they

are imposed by statute or regulation or submitted by an ap-

plicant or agency as pari of the original proposal.:’ Id. at

18,038.

[1,2] The district court correctly concluded that

plaintiffs’ reliance on this document is_ misplaced.

Although the NEPA regulations issued by the Council are

binding on all federal agencies, this publication is not a

regulation but merely an informal statement. Therefore, it

is not a controlling authority. Cabinet Mountains

Wilderness v. Peterson, 685 F.2d 678, 682 (D.C.Cir.1982).

Second, despite the Council's statement that this docu-

ment did not impose any additional requirements beyond

those contained in the NEPA regulations, 46 Fed.Reg. at

18,026, the underlying regulations cited by the Council, 40

C.F.R. §§ 1508.8 and 1508.27, do not discuss the propriety

of considering mitigating conditions. 685 F.2d at 682-83.

Finally, NEPA was intended to address reality, not

a hypothetical situation. The conditions at issue are

a i i

A-5

embodied in the permits themselves. This is not an in-

stance where the proposed mitigating conditions consist of

vague statements of good intentions by third parties not

within the control of the agency. In Preservation Coalition,

Inc. v. Pierce, 667 F.2d 851, 860 (9th Cir.1981), the court

properly concluded that such tenuous assurances could not

be considered as mitigating the significance of the en-

vironmental effects. Rather, here the conditions are legally

enforceable by the Corps. The dredging must be conducted

in accordance with these restrictions. Therefore, the only

realistic course of action is to consider the conditions in

reviewing the Corps’s decision not to file the impact

statement.

[3] Judicial review of an agency’s decision not to file an

environmental impact statement is governed by the rule of

reasonableness. ‘““The standard of judicial review is

whether the agency decision not to develop an impact

statement is reasonable and made objectively and made in

good faith on a reviewable environmental record. ‘If the

decision is reasonable, the determination must be upheld.’”’

Save Our Wetlands, Inc. v. Sands, 711 F.2d 634, 644 (5th

Cir. 1983) (quoting Save the Bay, Inc. v. U.S. Corps of

Engineers, 610 F.2d 322, 325 (5th Cir.), cert. denied, 449

U.S. 900, 101 S. Ct. 269, 66 L. Ed. 2d 130 (1980); e.g. Vieux

Carre Property Owners, Residents & Associates v. Pierce,

719 F.2d 1272, 1279 (5th Cir. 1983). Under this standard

the court must determine whether the plaintiff has

alleged facts which, if true, show that the receommend-

ed project would materially degrade any aspect of en-

vironmental quality.

7” e * ” * e

If the court concludes that no environmental factor

A-6

would be significantly degraded by the project, [defen-

dants’] determination not to file the impact statement

should be upheld. On the other hand, if the court finds

that the project may cause a significant degradation

of some human environmental 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 [plaintiffs] such other

equitable relief as it deems appropriate.

Save Our Ten Acres v. Kreger, 472 F.2d 463, 466-67 (5th

Cir.1973) (emphasis added).

To facilitate NEPA’s basic purpose, we utilize this

more rigorous standard rather than the rule of arbitrary

and capricious review that ordinarily governs agency ac-

tions. This ensures that the environmental effects of a pro-

posal are considered ‘‘to the fullest extent possible.’ Jd. at

466. An environmental impact statement is intended to

_ detail the environmental and economic effects of any pro-

posed federal action so that those not directly involved can

understand and give meaningful consideration to and make

appropriate comment on the factors involved. It also en-

sures that the decisionmaker gives serious weight to en-

vironmental factors in making discretionary choices. Sierra

Club v. Morton, 510 F.2d 813, 819 (5th Cir. 1975). See

Sierra Club v. Sigler, 695 F.2d 957, 964-65 (5th Cir. 1983).

The private defendants argue that the environmental

assessments prepared in this case were so exhaustive as to

be the ‘‘functional equivalent’’ of an impact statement.

This argument overlooks the fact that the procedural re-

quirements of NEPA governing the filing of impact

statements were not met. Any decision based on an en-

vironmental assessment alone is_ necessarily more

speculative than one made after the preparation and full

<<<

A-7

consideration required by an impact statement. Therefore,

when such a decision places a given proposal beyond the

purview of NEPA, it must be inspected under the search-

ing standard described above. Save Our Ten Acres, 472

F.2d at 465-66.

[4] In the case before us, the district court correctly

required the plaintiffs to demonstrate the necessity of an

impact statement. Save Our Wetlands, 711 F.2d at 644.

However, the district court also stated that an impact

statement was to be required “‘if the [environmental assess-

ment] reveals that the quality of human environment

would be significantly degraded by the proposed action...."’

596 F.Supp. at 651 (emphasis added). This language in-

dicates that the district judge subjected plaintiffs to an im-

proper evidentiary burden. The court appears to have re-

quired plaintiffs to prove a significant degradation of the

environment actually would result before the Corps’ con-

clusion could be deemed unreasonable. Such a standard

would be unrealistic. Plaintiffs would have to prove an ab-

solute without the benefit of the factual basis Congress in-

tended to provide by an impact statement.

In defining its standard, the district court relied on

the following statement from Save Our Wetlands: ‘‘The

burden is on the plaintiff attacking the ‘no impact state-

ment’ decision to show that the quality of the human en-

vironment would be significantly degraded by the project.

711 F.2d at 644 (citing Save Our Ten Acres, 472 F.2d at

466-67). The purpose of this sentence was to reflect the

holding in Save Our Ten Acres. |t would have been more ac-

curate had it read ‘the quality of the human environment

may be significantly degraded."’ Wetlands was not

A-8

intended as a change of the standard of review set forth in

Ten Acres, which remains the controlling precedent on this

question in our circuit. Under Save Our Ten Acres, plain-

tiffs must establish only that the Corps was unreasonable

in concluding there was no reasonable possibility that the

proposed action would significantly degrade any en-

vironmental factor.

Because the agency’s decision that an impact state-

ment is not required pretermits the fact-gathering process

tions, must be reviewed to determine if it reasonably sup-

ports an absolute. Such a procedure is consistent with the

regulation defining an agency's finding of no significant

impact: ‘‘‘Finding of no significant impact’ means a docu-

ment by a Federal agency briefly presenting the reasons

why an action, not otherwise excluded (§ 1508.4), will not

have a significant effect on the human environment and for

which an environmental impact statement therefore will

not be prepared.’ 40 C.F.R. § 1508.13 (emphasis added).

Based on the record before us, we cannot say that the

district court would have granted summary judgment to

defendants under the correct standard. The following are

some examples of the environmental effects discussed in

the record. The dredging will affect over two million acres

of ecologically fragile water and wetland. By its very

nature the dredging process is environmentally disruptive.

A barge equipped with an excavating cutter-head digs

through the shell deposits in reefs typically buried under

four to eight feet of sediment. The shells are recovered

through hydraulic suction. Other matter collected with the

shells is diluted with wash water and then discharged. As

ihe ceneteemninanaaeaebemanaaaiaaia intial eae ee wee

A-9

the discharge settles, it creates an inorganic gel which

spreads across the bottom and can suffocate benthic or

bottom-dwelling life, such as vegetation or oysters.

Nektonic life, (fish, crabs, or shrimp) can be affected if, as

alleged, the water quality is lowered by the dredging or if

it disrupts their food supply. The process also increases the

turbidity of the water, thereby reducing the light available

for photosynthesis. Furthermore, it can also interfere with

the process of delta-building in the Atchafalaya River and

with the health of living reefs and the formation of new

reefs. The Corps has deemed the process sufficiently

disruptive to prepare impact statements for dredging in

Texas, Florida, and Alabama--each of which produces less

shell than Louisiana.

The administrative record shows that plaintiffs in-

troduced evidence that the restrictions in the permits are

insufficient to render the environmental effects insignifi-

cant and the Corps introduced evidence to the contrary.

The Corps correctly asserts that the mere existence of dif-

fering opinions does not make its decision erroneous.

Nevertheless, the district court must review the evidence

carefully to ensure that the Corp» was reasonable in con-

cluding that there is no possibility that the dredging may

cause a significant degradation of some environmental

factor.

The many differences between the 1982 and 1984 en-

vironmental assessments also raise questions. The 1984

document reaches conclusions opposite to many of those

reached in the 1982 report. Every change tends to minimize

the environmental significance of the continuation of the

dredging. The record leaves the reasons for these changes

unclear. Plaintiffs maintain that the conditions imposed by

the 1984 permits are similar in many respects to those in

A-10

place in 1982 and even in the 1977 permits. The defendants

did not respond to plaintiffs’ assertion that the changes in

the conditions were insufficient to warrant the changes

made in the environmental assessment. We reach no con-

clusion as to the validity of the 1984 assessment, but re-

mind the district court that, to some extent, the 1984

assessment is a ‘‘post hoc rationalization and thus must be

viewed critically.’’ Citizens to Preserve Overton Park, Inc.

v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 826, 28 L.Ed.2d 136

(1971).

Defendants maintain that the only question is

whether the continued dredging will affect the status quo

as it exists after fifty years of dredging. Particularly with

respect to the benthic life in Lake Pontchartrain, they

assert that the damage to benthic life was completed in the

1950’s and so the effects of further dredging cannot be con-

sidered significant.

The district court, relying on Sierra Club v.Hassell,

636 F.2d 1095, 1099 (5th Cir.1981), accepted this argu-

ment, at least for the purpose of determining that the

Corps wa» reasonable in concluding that the effect of

dredging on Lake Ponchartrain’s benthic life was insignifi-

cant. 596 F.Supp. at 657. However, Hassell is inapposite.

It presented the question of whether the environmental im-

pact of rebuilding a bridge destroyed by a hurricane should

be assessed by analyzing its impact in comparison with the

environmental status when the old bridge was in place or

with the status during the brief interim after the bridge

was destroyed. Our decision that the comparison should be

with the conditions existent when the old bridge was in

place was premised on the conclusion that the reconstruc-

tion would only restore an environmental status quo that

had existed for twenty-four years prior to the hurricane.

636 F.2d at 1099.

A-11

This logic is not applicable to the present case. The

renewal of these permits will not maintain a status quo, but

rather will continue a course of environmental disruption

begun years ago. The fact that much damage to the benthic

life occurred years ago does not automatically render the

effect of the continued dredging insignificant. Such a con-

clusion would ignore the realities that even a badly damag-

ed body of water may restore itself to ecological health if

a disruptive activity is halted and that continued dredging

may expand the areas of damage. In deciding this case on

remand, the trial court should compare the projected

ecological status of the affected areas if the dredging is con-

tinued for another five years with their projected zondition

if the dredging is halted now.

The order granting summary judgment is vacated.

The case is remanded for consideration under the standard

of Save Our Ten Acres.

This decision makes it unnecessary to reach plain-

tiffs’ arguments for the entry of summary judgment in

their favor and for an injunction against further dredging

until the impact statement is prepared. The first of these

matters must await the district court's reconsideration of

its original decision and the second must be addressed to

that court at an appropriate time.

IT]

Nothing said in this opinion is intended to intimate

what decision the district court should reach as a result of

applying the proper standard to the proof or whether that

court may decide that further proof may be necessary. The

A-12

order of the district court is vacated and the cause is

remanded for proceedings consistent with this opinion.

VACATED and REMANDED.

A-13

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 84-3699

STATE OF LOUISIANA, ET AL.,

Plaintiffs-Appellants,

versus

COLONEL ROBERT C. LEE, ET AL..,

Defendants-Appellees.

Appeal from the United States Court for the

Eastern District of Louisiana

ON PETITION FOR REHEARING

( June 5, 1985 )

Before CLARK, Chief Judge, GOLDBERG and TATE,

A-14

Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing fil-

ed in the above entitled and numbered cause be and the

same is hereby Denied.

ENTERED FOR THE COURT:

si C. Clark

CHIEF JUDGE

A-15

APPENDIX C

SUPREME COURT OF THE UNITED STATES

No. A-175

DRAVO BASIC MATERIALS COMPANY, ET AL.,

Applicant

LOUISIANA, ET AL.

ORDER EXTENDING TIME TO FILE PETITION FOR

WRIT OF CERTIORARI

UPON CONSIDERATION of the application of

counsel for petitioner(s),

IT IS ORDERED that the time for filing a petition

for writ of certiorari in the above-entitled cause be, and the

same is hereby, extended to and including October 3, 1985.

/s/ Byron R. White

Associate Justice of the Supreme

Court of the United States

Dated this 3rd

day of September, 1985.

A-16

APPENDIX D

STATE OF LOUISIANA, et al.

COLONEL ROBERT C. LEE, et al.

Civ. A. No. 83-6126.

United States District Court,

E.D. Louisiana.

Sept. 14, 1984.

OPINION AND ORDER

McNAMARA, District Judge.

This litigation arises out of the five-year extension of

six shell dredging permits issued by the U.S. Army Corps

of Engineers (Corps) pursuant to the Rivers and Harbors

Act of 1899, 33 U.S.C. § 403, and the Clean Water Act, 33

U.S.C. § 1344. The permits allow four shell dredging com-

panies to dredge in two areas of southern Louisiana. The

‘Gulf Coast Area’, consists of the Gulf of Mexico, East

and West Cote Blanche, Four League and Vermilion Bays.

The ‘Lake Area’, consists of Lakes Pontchartrain and

Maurepas.

The Plaintiffs comprised of the State of Louisiana

and several private environmentalist groups!, allege that

l'The “private” Plaintiffs are Save Our Coast. Inc. The Orleans

Audobon Society. Sierra Club. Manchac Fisherman's Association and

the Environmental Defense Fund.

Bb At :

A-17

the Corps violated the National Environmental Policy Act

(NEPA), 42 U.S.C. § 4321 et seg., and the Administrative

Procedure Act, 5 U.S.C. §§ 701-706. Three of the shell

dredging companies subject to the permits—Louisiana

Materials Co., Inc., Radcliff Materials, Inc. and Pontchar-

train Materials Corp.—have intervened as defendants. The

Complaint seeks: (1) a declaratory judgment that the

Corps’ extension of the permits without first having

prepared an environmental impact statement (EIS) con-

stitutes a violation of the NEPA and (2) an injunction re-

quiring the Defendants to rescind the permit extensions

and to prohibit any shell dredging in the affected areas un-

til an adequate EIS is prepared.

Presently before the court are the following Motions:

(1) The Motion of Federal Defendants to Limit Review

to Evidence Contained within the Administrative

Record;

(2) The Motion of Defendants Col. Robert C. Lee, Lt

Gen.Joseph K. Bratton, William R. Gianelli and John

QO. Marshal, Jr. (collectively referred to as the Federal

Defendants) to Dismiss the State of Louisiana as a

Plaintiff;

(3) The Motion of Defendants-In-Intervention, Radcliff

Materials, Inc., Pontchartrain Materials Corp. and

Louisiana Materials Co., Inc. to Dismiss the State of

Louisiana as a Plaintiff and to Dismiss the Complaint

for Failure to Join an Indispensable Party Under

Federal Rule of Civil Procedure 19; and

(4) Cross Motions of all parties for Summary

Judgment.

On August 29, 1984, the parties presented oral argu-

ment in support of the above Motions and were advised

that the matter would be taken under advisement. Having

A-18

considered the applicable law and arguments of counsel,

the court enters its findings below.

I. MOTION TO LIMIT REVIEW TO _- AD-

MINISTRATIVE RECORD

In this Motion, the Federal Defendants seek to

restrict the court's review to the documents that were

before the Corps when the decision not to prepare an EIS

was made.

[1] All parties agree that the administrative record is

indeed the ‘focal point’’ for determining’ the

reasonableness of the Corps’ action. Citizens to Preserve

Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28

L.Ed.2d 136 (1971). The court will consider evidence

beyond the administrative record only when it is alleged

that the administrative record is in some manner deficient

or inadequate. Save Our Ten Acres v. Kreger, 472 F.2d 463,

467 (5th Cir.1973).

In oral argument, all parties agreed that the ad-

ministrative record is in all manners complete and ade-

quate. Although conceding the adequacy of the present ad-

ministrative record, the Plaintiffs suggest that this case is

not procedurally in the posture to dispose of on the sum-

mary judgment motion brought by Defendants. According

to the Plaintiffs, discovery is necessary to determine the

weight given by the Corps to a 1977 report authored by the

2The only documents presented to the court in regard to en-

vironmental impact that are not in the administrative record are the af-

fidavits of Stephen Steimle and Maureen Mulino attached to the Brief

in Support of the Defendants-In-Intervention Motion for Summary

Judgment.

A-19

Gulf South Research Institute at the direction of the shell

dredging companies. This report was a condition precedent

to a time extension permit in 1974.

[2] The court finds that further discovery is un-

necessary because the administrative record does not in-

dicate that the Corps merely “‘rubber-stamped”’ the GSRI

report. Save Our Wetlands, Inc. v. Sands, 711 F.2d 634, 643

(5th Cir. 1983); Cf. Sierra Club v. Sigler, 695 F.2d 957, 962

n. 3 (5th Cir. 1983). To the contrary,the administrative

record reflects that the Corps made an objective indepen-

dent assessment of the studies it accumulated, of which the

GSRI report was one of many.’ Thus, there is no pro-

cedural bar to a final adjudication. Accordingly, the Mo-

tion to Limit Review to the Administrative Record is

GRANTED.

II. MOTION TO DISMISS THE STATE OF LOUI-

SIANA AS PARTY PLAINTIFF.

This Motion, brought by both the Federal Defen-

dants and the Defendants-In-Intervention, is based on

several alternative premises. Due to a miscenception by

the Defendants of the nature of this action, all of the

premises lack merit.

Parens Patriae Standing of Louisiana

3The 1984 GCA EA references 14 independent reports, studies

and articles dealing with the subject matter, 6 reports drafted by the

Corps concerning dredging in other tidal bay areas, and a Final En-

vironmental Impact Statement prepared by the Louisiana Department

of Natural Resources. The 1984 ILA EA references over 70 independent

reports and studies. Public hearings were conducted in regard to the

continuation of dredging in both areas.

A-20

[3.4] Both the Federal Defendants and _ the

Defendants-In-Intervention assert that the State of Loui-

siana is without parens patriae standing. Generally, it is

true that a state cannot sue the Federal Government in a

parens patriae capacity. Massachusetts v. Mellon, 262 U.S.

447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923). The rule of Mellon

is limited, however, to the factual circumstance of a state

challenging the constitutionality of a federal statute. When

the state relies upon the validity of a federal statute to

assert a violation of it by an administrative agency charged

with its enforcement, a state has parens patriae standing.

State of Alabama v. Tennessee Valley Authority, 467 F.

Supp. 791, 794 (N.D.Ala.1979), aff'd. in pertinent part, 636

F.2d 1061 (5th Cir.) cert. denied, 454 U.S. 837, 102 S.Ct.

142, 70 L.Ed.2d 118 (1981); Washington Utilities &

Transportation Commission v. F.C.C., 513 F.2d 1142, 1153

& n. 16 (9th Cir.1975), cert. denied, 423 U.S. 836, 96 S.Ct.

62, 46 L.Ed.2d 54 (1975).

[5] The exception to the rule of Mellon applies to this

case; the State of Louisiana in fact relies on the NEPA in

an effort to avail itself of the NEPA’s protection. Further-

more, it is apparent that the requisite quasi-sovereign

interests? of Louisiana are implicated in this litigation.

Louisiana v. Texas, 176 U.S. 1, 19, 20 S.Ct. 251, 257, 44

L.Ed. 347 (1900); State of Alabama, 467 F.Supp. at 794. Ac-

cordingly, the court finds that the State of Louisiana has

parens patriae standing.

Equitable Estoppel

In advancing this argument, the Defendants-In-

Intervention contend that it is inconsistent for the State of

4In this litigation. the State of Louisiana seeks to vindicate the

rights of its citizens at large as well as the state's proprietary interests.

A-21

Louisiana to appear as a plaintiff in this litigation when

state agencies have already, pursuant to state law, let

water-bottoms and issued coastal use permits to the shell

dredging companies.° The State of Louisiana counters

with an argument that the compliance of the shell dredging

companies with state law is irrelevant to an alleged viola-

tion of the NEPA.

[6] The court finds the rejoinder persuasive. The fact

that the dredging companies complied with state law by at-

taining the approval of various state agencies in acquiring

leases and permits, and, assuming that the Attorney

General did not comment upon the effects of dredging prior

to the issuance of the ‘‘state’’ permits, is of no moment to

the alleged violation of the procedural requirements of the

NEPA, that is, the failure to file an EIS. The course of con-

duct presently pursued by the State of Louisiana—

requiring the Corps to prepare an EIS—is not necessarily

inconsistent with the approval of leases and permits pur-

suant to state law. Therefore the actions of the Department

of Natural Resources (DNR) and the Wildlife and Fisheries

Commission (WFC) cannot be construed to be an implied

waiver by the State of Louisiana of any benefits it may.

have under the NEPA. As such the initial element of

equitable estoppel—a representation by the plaintiff—is

lacking. See Zimeri v. Citizens & Southern International

Bank of New Orleans, 664 F.2d 952, 955 (5th Cir.1981). Nor

can it be said that the State of Louisiana has engaged in a

prolonged course of conduct that would induce a

©The Wildlife and Fisheries Commission is authorized to let state

water-bottoms for the purpose of dredging shell deposits. La.R.S.

56:441(A). The Louisiana Coastal Commission, a branch of the Depart-

ment of Natural Resources. has authority over the extension of coastal

use permits. La.R.S. 49:213.11. It is undisputed that the dredging com-

panies attained the leases and permits required by state law.

A-22

‘justifiable reliance’’ by the dredging companies that the

State of Louisiana would not c’»,.0se the Corps’ actions in

this case. Cf. Michigan Wisconsin Pipeline Co. v. Williams-

McWilliams Co., 551 F.2d 945, 951 (5th Cir.1977).

Authority of State of Louisiana and Attorney General to

Bring Action

[7] The Defendants-In-Intervention also contend that

the State of Louisiana and its Attorney General lack the

authority to bring this action because it conflicts with the

true public policy of Louisiana.

The Attorney General of Louisiana is empowered

with broad authority to prosecute actions in the interest of

the state. La. Const. Art. 4, § 8 (1974); State v. Texas Co.,

199 La. 846, 7 So.2d 161, 162 (1942); Moity v. Louisiana

State Bar Association, 414 F.Supp. 180, 181 n. 3 (E.D.La.),

aff'd., 537 F.2d 1141 (1976).

The shell dredging companies contend that the

public policy of Louisiana is expressed .n La.R.S. 56:441.

This statute merely provides that the Wildlife and

Fisheries Commission ‘‘may sell and grant to any person

the right and privilege of taking shell deposits from any of

the shell reefs’’ located in Louisiana and delineates the

prerequisites to attaining such a right. Jd.

On the other hand, Louisiana made positive expres-

sions in regard to protecting the state’s natural resources

and environment. In particular, Article 9, § 1 of Louisiana's

Constitution (1974) provides:

‘The natural resources of the state, including air and

water, and the healthful, scenic, historic, and esthetic

A-23

quality of the environment shall be protected, conserv-

ed, and replenished insofar as possible and consistent

with the health, safety, and welfare of the people. The

legislature shall enact laws to implement this policy.

In any event, the policy of permitting the shell dredg-

ing of state owned water-bottoms, whether or not it is in

the public interest, is not being challenged. Again, it is the

failure of the Corps to file an EIS to which the State of

Louisiana objects. Thus, the court finds that neither the

State of Louisiana, nor its Attorney General, are prohibited

from bringing this action for want of authority.

III. MOTION TO DISMISS FOR FAILURE TO JOIN

UNDER RULE 19

The argument made herein is closely related to one

addressed immediately above. In this Motion, which is urg-

ed by the Defendants-In-Intervention, it is contended that

the WFC and DNR must be joined as defendants because

these agencies have an interest in the ability of the dredg-

ing companies to operate under the leases and coastal use

permits issued by these agencies and a judgment adverse

to the Defendants would prejudice this interest. The

movers further contend that since the joinder of the WFC

and DNR would result in the anomalous situation of the

State of Louisiana, through the Attorney General, appear-.

ing as plaintiff and the state agencies appearing as defen-

dants, the appropriate action would be to dismiss the State

of Louisiana as a party plaintiff. The court declines to do

A-24

so.6

[8-10] Due to the nature of this action, the effect

that a judgment may have on third parties is irrele-

vant. The rights embodied in the NEPA are ‘‘public’”’,

rather than “‘private’’. Natural Resources Defense

Council v. Berklund, 458 F.Supp. 925, 933 (D.D.C.1978),

aff'd. 609 F.2d 553 (D.C.Cir.1979). The constraints of

Rule 19 apply only to adjudications of ‘“‘private

rights’’. Id., citing National Licorice Co. v.NLRB, 309

U.S. 350, 366-67, 60 S.Ct. 569, 578, 84 L.Ed. 799

(1940); Kirkland v. New York State Dept. of Correc-

tional Services, 520 F.2d 420, 424 (2d Cir.1975), cert.

denied, 429 U.S. 823, 97 S.Ct. 73, 50 L.Ed.2d 84 (1976).

Thus, under the rule of National Licorice, the DWF

and DNR are not considered necessary parties. See

also State of Delaware v. Bender, 370 F.Supp. 1193,

1197 (D.Del.1974).

IV. MOTION FOR SUMMARY JUDGMENT

[11] The procedural scheme contemplated by the

NEPA and the Council on Environmental Quality NEPA

Regulations (CEQ NEPA) is a relatively simple one.

Paraphrasing § 4332(2)(C) of the NEPA, all agencies of the

Federal Government are required to include in every

6Central to the mover's argument is the question of where exactly

the interests of Louisiana lie. Although. as movers emphasize, the WFC

derives revenues from the issuance of leases, the enabling legislation of

both DNR and WFC proclaims, as a matter of public policy, that the

natural resources and environment are primary considerations. See

La.R.S. 49:213.2(5); La.R.S. 56:1. The court need not resolve whether the

State of Louisiana's posture in this litigation is aligned with that of the

true public interest, and indeed should refrain from doing so. That deci-

sion is primarily a political one and is within the discretion of the At-

torney General.

A-25

recommendation or report on proposals for major Federal

actions significantly affecting the quality of the human en-

vironment, a detailed statement on the environmental im-

pact, or EIS, of the proposed action. Stated another way,

an EIS is mandated only if the major Federal action ‘

significantly affects the quality of human environment.

Save Our Ten Acres, 472 F.2d at 465.

[12] The threshold determination of whether the ef-

fect of the proposed action is sufficiently ‘‘significant’’ is

made by the preparation of an Environmental Assessment

(EA). 40 CFR § 1508.9. If the agency determines upon ex-

amination of the EA that the proposed action would not

have a significant effect on the human environment, a ‘‘fin-

ding of no significant impact™’ or FNSI, must be prepared.

40 CFR § 1508.13. Conversely, if the EA reveals that the

quality of human environment would be significantly

degraded by the proposed action, an EIS is required. Save

Our Wetlands, 711 F.2d at 644. Factors to be considered in

making the ‘“‘significance’’ determination include both the

context and the intensity of the proposed action. 40 CFR

§ 1508.27.8 See also Hanly v. Kleindienst, 471 F.2d 823,

‘The CEQ NEPA regulations indicate that the Corps’ action

qualifies as ‘major’. 40 CFR § 1508.18(4). The parties do not contend

otherwise.

‘That regulation provides:

“Significantly” as used in NEPA requires considerations of both con-

text and intensity:

(a) Context. This means that the significance of an action mu:3t be

analyzed in several contexts such as society as a whole (human. na-

tional), the affected region. the affected interests, and the locality.

Significance varies with the setting of the proposed action. For instance.

in the case of a site-specific action. significance would usually depend

upon the effects in the locale rather than in the world as a whole. Both

short- and long-term effects are relevant.

(b) Intensity. This refers to the severity of impact. Responsible

A-26

830-31 (2nd Cir. 1972), cert. denied, 412 U.S. 908, 93 S.Ct.

2290, 36 L.Ed.2d 974 (1973).

The Plaintiff's Motion for Summary Judgment is

premised on a contention that the undisputed facts—the

EA(s)—do not support the FNSI, or the decision not to

prepare an EIS. Stated simply, the Plaintiffs assert that

each EA does in fact reveal significant environmental

(footnote 8 continued)

officials must bear in mind that more than one agency may make deci-

sions about partial aspects of a major action. The following should be

considered in evaluating intensity:

(1) Impacts that may be both beneficial and adverse. A significant ef-

fect may exist even if the Federal agency believes that on balance the

effect will be beneficial.

(2) The degree to which the proposed action affects public health or

safety.

(3) Unique characteristics of the geographic area such as proximity to

historic or cultural resources, park lands, prime farmlands, wetlands,

wild and scenic rivers, or ecologically critical areas.

(4) The degree to which the effects on the quality of the human en-

vironment are likely to be highly controversial.

(5) The degree to which the possible effects on the human environment

are highly uncertain or involve unique or unknown risks.

(6) The degree to which the action may establish a precedent for future

actions with significant effects or represents a decision in principle

about a future consideration.

(7) Whether the action is related to other actions with individually in-

significant but cumulatively significant impacts. Significance exists if it

is reasonable to anticipate a cumulatively significant impact on the en-

vironment. Significance cannot be avoided by terming an action tem-

porary or by breaking it down into small component parts.

(8) The degree to which the action may adversely affect districts. sites,

highways, structures, or objects listed in or eligible for listing in the Na-

tional Register of Historic Places or may cause loss or destruction of

significant scientific, cultural, or historical resources.

(9) The degree to which the action may adversely affect an endangered

or threatened species or its habitat that has been determined to be

critical under the Endangered Species Act of 1973.

(10) Whether the action threatens a violation of Federal. State or local

law or requirements imposed for the protection of the environment.

nN eT

A-27

impact and, as a matter of law, the relief sought is proper.

Conversely, the Defendants assert that given the un-

disputed facts, the Corps’ decision is a reasonable one.

[13] The burden is upon the Plaintiffs to demonstrate

the necessity for an EIS. Save Our Wetlands, 711 F.2d at

644. ‘‘The standard of judicial review is whether the agency

decision not to develop an impact statement is reasonable

and made objectively and made in good faith on a

reviewable environmental record. If the decision is

reasonable, the determinations must be upheld.”’ /d.; Vieux

Carre Property Owners, Residents & Associates v. Pierce,

719 F.2d 1272, 1279 (5th Cir.1983).

EFFECTS OF DREDGING AS REFLECTED IN EN-

VIRONMENTAL ASSESSMENTS9

Gulf Coast Area

The shells dredged in the Gulf Coast Area (GCA) are

primarily oyster shells. Oyster shell deposits are found in

reefs formed of millions of cubic yards of shell more or less

cemented together. The shells are dredged by means of a

barge with an excavating cutter-head that digs through the

shell deposits. The shells are recovered by hydraulic suc-

tion. Reefs are typically buried under four to eight feet of

9 After a May 23, 1984 Status Conference, the court granted the

Corps additional time within which to reconsider its decision not to

prepare an EIS. The Corps’ decision was originally based on EAs

prepared in 1982. As a result of the reconsideration, a revised 1984 EA

and Findings of Fact were generated for both areas. The court has

previously denied a Motion brought by the Federal Defendants “To

Remove the 1982 Environmental Documents from the Record and to Re-

quire Plaintiff to File an Amended Complaint."’ Thus, both the 1982 and

1984 EAs are relevant to the court's inquiry particularly in light of the

Corps’ continued adherence to its original decision.

A-28

sediment, and vary in thickness from one te eight feet. In

a twenty-four hour period, the dredge barge covers about

one hundred and forty linear feet. The physical result of the

dredging on the sea bed is a series of shallow troughs and

mounds.

The geography of the GCA includes ope bays, mar-

shes ranging from fresh water to brackish to saline and

cypress-tupelogum swamps. Mosi notably, the GCA en-

compasses the Lower Atchafalaya Basin Floodway,

described as a ‘‘regionally unique faunal habitat’’. Twenty-

two different types of vegetation and marsh grasses are in-

digenous to the coastal area. Cypress-tupelogum swamps

comprise large areas in the southeastern part of the Lower

Atchafalaya Basin Floodway. Due to periodic flooding,

these swamps are also an important part of the aquatic

ecosystem, serving as a nursery area for sport and commer-

cial fish. The swamps are home to nutria, mink, raccoon

and are a breeding ground for wood ducks, heron and

egrets.

Six different ‘‘impacts"’ associated with dredging are

addressed in the GCA EAs: water quality (turbidity, con-

taminants, etc.), benthic organisms (oysters), nektonic

organisms (fish, crabs and shrimp), the formation of the At-

chafalaya Delta, the relationship between the trenches left

by dredging and storm waters, and the impact caused by

the dredging of exposed reefs.

Undoubtably, the mest adverse impact attributable

to dredging on the environment in the GCA would be the

interruption of the delta-building process where the At-

chafalaya River empties into the Gulf of Mexico:

Dredging in the developing Atchafalaya Bay Delta

" Asante) dilekei ita

A-29

may seriously impact the formation of the delta main-

ly through loss of shallow water bottom and ac-

celerated erosion. The Atchafalaya Bay Delta is pro-

jected to develop into more than 80 square miles of

tidal wetlands. This new land development is a rare oc-

currence in coastal Louisiana, where marshas have

been deteriorating at an average rate of 39 square

miles a year. The delta is composed of approximately

16 square miles of vegetated islands, extensive

shallow flats, and numerous interconnecting natural

channels. Preliminary assessments from studies on

Atchafalaya delta building indicate that dredging, and

in particular shell dredging, apparently interferes with

processes associated with the distribution of sediment

within the delta complex.

1984 GCA EA at 11.

In light of the definite adverse impact on the At-

chafalava Delta, the 1984 GCA EA recommends that all

shell dredging activities should be kept outside of the delta

building area.

The Corps also found that dredging of exposed reefs

affects the ecosystem of the tidal bays. Dredging these ex-

posed reefs alters the natural water circulation patterns of

the estuaries that are a nursery ground for ‘almost all of

the economically important fish and shell fish."’ Besides

providing an important habitat for both marine life and

birds such as gulls and terns, the reefs act as barriers which

protect adjacent shorelines and marshes from wave ero-

sion. Furthermore, sports fishing would be significantly

impacted if dredging were allowed in areas near exposed

reefs and other areas heavily fished. namely in certain

parts of Vermilion and Weeks Bay. As with the At-

chafalaya Delta, it is concluded that restricting dredging

A-30

from the areas surrounding the exposed reefs and areas

heavily utilized for sports fisning will greatly reduce the

degree of impact.

The impact on water quality is generally considered

minimal and of a temporary and short-lived nature. This

same assessment holds true for nektonic organisms which,

due to their mobility, can easily avoid dredging activities

and feed elsewhere.

The Corps deemed the physical removal and/or burial

of benthic erganisms by dredging a significant impact on

these organisms but that such impact would be limited to

a small area in comparison to the vastness of the water bot-

toms involved. Any possibility of harm to live oyster beds

can be alleviated by use of proper dredging techniques to

assure that the turbidity plumes are carried away from the

beds by currents, wind and gravity.

The Corps determined that the trenches left by

dredging have no effect on directing storm surges toward

the mainland.

Lakes Area }

The shells dredged in the Lakes Area (LA) are primari-

ly clam, or rangia cuneata. These fossil clam shells, unlike

oyster shells, are not attached to one another in reef forma-

tions. The nature of the operation and equipment used in

dredging this area is somewhat different than that used in

the GCA, but the effect on the water-bottom is similar: a

shallow trench about two feet deep and four to five feet

wide. Lakes Pontchartrain and Maurepas are low salinity

estuaries which together cover an area of approximately

723 square miles. The lakes are connected to one another

A-31

through Pass Manchac and North Pass; Lake Pontchar-

train connects with the Gulf of Mexico through the

Rigolets, Chef Menteur Pass, Lake Borgne, the Mississippi

Sound and several manmade waterways.

The iakes are highly turbid and the beds are

predominantly silty clay. Marsh ranging from freshwater

to brackish, with cypress-tupelogum swamp and urban

areas surrounded Lake Pontchartrain; freshwater marsh

and cypress-tupelogum swamp surround Lake Maurepas.

Thirty-six types of vegetation, including various

marsh grasses, bald cypress and dr'ummond red maple are

indigenous to the area. A 1976 study relied on by the Corps

lists 82 types of vertebrate and invertebrate collected in

the LA. Among these are various types of mussels, clams

and oysters, five types of shrimp, and numerous types of

both saltwater and freshwater fish. A 1962 study noted by

the Corps states that only four organisms maintain large

resident populations in the Lake Area: anchovy, brackish

water clams, mud crab and calanoid copepod. Of the clams,

rangia cuneata is the most abundant.

Migratory waterfowl, such as scaup, mallards and

coots as well as other birds reside in the LA. The marsh and

swamp areas are inhabiced by racoon, oppossums, rabbit,

nutria, muskrat, mink, white-tailed deer and squirrels.

The 1984 LA EA specifically addressed the impacts

of shell dredging on benthic and nektonic organisms,

vegetation, and water quality.

As in the coastal waters, the Corps found that the

impact on nektonic organisms in the LA is not significant

due to the ability of these organisms to avoid dredging ac-

tivity. Since dredging is prohibited in Lake Pontchartrain

A-32

in areas shallow enough to support growth and Lake

Maurepas is devoid of rooted submerged vegetation, the

Corps found no impact on vegetation.

However, as in the GCA, the Corps discerned an

adverse impact on the benthos of the LA attributable to

dredging. The benthic organisms which are in the direct

path of the dredge will be smothered by the discharge. In

some instances, mud also flows outside the dredged cut.

Nevertheless, the impact on the benthic community is not

considered to be significant because the effects are tem-

porary and short term. To a great extent, the finding of a

_ less than significant effect on the benthos of the LA is

grounded on the premise that the major adverse impact oc-

curred 25-30 years ago.!°

The impacts to the water quality of Lake Pontchar-

train associated with turbidity created by dredging is also

considered minimal. This conclusion is based on the size,

depth, volume and tidal action of the water body. Due to

the smaller dimensions, a naturally occurring imbalance of

the carbon-nitrogen-phosphorous ratio, seasonally high

temperatures, low flushing rate and fresher water, that

above proposition does not hold true for Lake Maurepas.

Due to a combination of these factors, there is a ‘‘potential

for the occurrence of a stressful system-wide event’ in

Lake Maurepas.

101t is appropriate to consider the status quo of the environment

in the area affected. Sierra Club v. Hassell, 636 F.2d 1095, 1099 (5th Cir.

1981). The 1984 LA EA in the instant case summarizes various reports

as concluding that the diversity of the benthic community that existed

in Lake Pontchartrain in the 1930's (when dredging initially started)

was lowered decades ago. A study noted by the Corps hypothesizes that

the remaining benthos of Lake Pontchartrain is composed of only the

“hardiest organisms of the original community.”

A-33

For this reason, it is recommended in the LA EA that

dredging in Lake Maurepas be discontinued until a

monitoring program designed to detect the onset of poten-

tially unacceptable situations and a method of greatly

minimizing the turbidity plumes can be implemented.

The Corps concluded that the so-called ‘‘dead zones’

discovered in Lake Pontchartrain and the contaminants

found in them are unrelated to shell dredging.

The 1984 LA EA poses the question: ‘‘What would

happen if shell dredging were discontinued’’? It is deduced

that ‘considering the influences attributed to shell dredg-

ing over the last 50 years, the discontinuation of shell

dredging would surely lead to the establishment of some

other benthic community.” Jd. at 20. The long-term im-

pacts are summarized in this fashion:

Due to modifications of sediments caused by the

direct-ever [sic] passage of a shell dredge, it is unlikely

that a total recovery was ever possible. Nonetheless. if

shell dredging were discontinued altogether and

enough time were allowed to elapse, a self-sustaining

benthic community would arise and stable sediment

profile could become established. Persuasive evidence

exists to show that recurrent shell dredging in Lake

Pontchartrain precludes that possibility. Instead,

recurrent shell dredging has induced the establish-

ment of and does perpetuate the existence of a benthic

community that exhibits attributes that are in syn-

chrony with shell dredging. The induced community

(that exists today) evidences many of the attributes

ascribed to communities that: 1) have been subjected

to prolonged periods of stress; and 2) arise during ear-

ly stages of succession.

Id. at 20-21.

A-34

SIGNIFICANCE OF THE EFFECTS

Col. Lee, the District Engineer and ranking officer

for the New Orleans District of the Corps, concludes that

for both areas, the effects of dredging are not significant,

given the conditions which are imposed on the dredging

permits. For instance, he finds in regard to the GCA:

Although there are adverse impacts associated with

shell dredging, the special conditions and other restric-

tions placed on the operations have reduced them to

such extent that an environment [sic] impact state-

ment is not required. No Federal resource agency in-

dicated that the expected impacts are of enough

significance to require preparation of an environmen-

tal impact statement.

GCA Revised Findings of Fact, p.7.

Similarly, in regard to the LA, Col. Lee concludes:

While it is recognized that shell dredging does cause

impacts, my finding, based in part on my staff's

review of all available studies and literature, does not

indicate the impacts are of enough significance to re-

quire preparation of an environmental impact state-

ment. I find the impacts of the shell dredging opera-

tions under the conditions of the permits to be not

significant.

LA Revised findings of Fact, pp. 7-8.

Both the Federal Defendants and the Defendants-In-

Intervention reiterated in argument to the court that the

effects of dredging, sans the conditions imposed in the per-

mits, are significant. Nevertheless, the Defendants contend

A-35

that the conditions are such that the need for an EIS is

obviated.

[14] The nature of judicial review is a limited one; the

court cannot interject its opinion for that of the agency’s.

Stryci..’s Bay Neighborhood Council, Inc. v. Karlen, 444

U.S. 223, 227, 100 S.Ct. 497, 499-500. 62 L.Ed.2d 433

(1980). It is undisputed that the effects of dredging are en-

vironmentally significant, when not tempered by the

restrictions set out in the permits. As such, the legal issue

presented by the determinations made by the Corps in the

case at bar is wheticr the Corps can consider the condi-

tions in making a “‘significance’’ determination.

The majority of courts facing the issue have allowed

agencies to avoid the EIS requirement by modifying pro-

jects to bring them below the significance threshold.

Glitzenstein, Project Modification: Illegitimate Circumven-

tion of the EIS Requirement or Desirable Means to Reduce

Adverse Environmental Impacts? 10 Ecology Law

Quarterly 253, 256 (1982). See also Cabinet Mountains

Wilderness v. Peterson, 685 F.2d 678, 682 (D.C.Cir.1982);

Preservation Coalition, Inc. v. Pierce, 667 F.2d 851, 860

(9th Cir.1982); Simmans v. Grant, 370 F.Supp. 5, 21

(S.D.Tex.1974). C «tra: Citizens for Responsible Area

Growth v. Adams, 477 F.Supp. 994 (D.N.H.1979).!! To

date, the Fifth Circuit has yet to addiess the issue.

In disregarding the conditions imposed on the

1lIn Preservation Coalition, the court held that “when [the

mitigating modifications are] to be undertaken by third parties, their

commitments, while they need not be contractual, must be more than

mere vague statements of good intentions." 667 F.2d at 860 (citations

omitted).

A-36

permits, the Plaintiffs rely on a statement published by the

CEQ at 46 Fed. Reg. 18026 (1981) entitled ‘‘Forty Most

Asked Questions Concerning CEQ’s National Environmen-

tal Policy Act Regulations.’’ The response to Question 40

suggests that “‘[m]itigation measures may be relied upon to

make a finding of no significant impact only if they are im-

posed by statute or regulation, or submitted by an appli-

cant or agency as part of the original proposal.’’ Jd. at

18038.

In Cabinet Mountains Wilderness v. Peterson, 685

F.2d 678 (D.C.Cir.1982), the appellants also relied on the

above cited publication. The court deemed such reliance

misplaced for several reasons. Firstly, the publication is

not a regulation but is merely an informal statement, and

thus is not entitled to the deference usually afforded ad-

ministrative regulations. Jd. at 682. Secondly, the underly-

ing regulations do not reflect that consideration of mitiga-

tion measures is inappropriate, although the publication

states that it imposes no additional requirements beyond

those in the NEPA regulations. Id. at 683.12

[15] Regardless of the weight to which the aforemen-

tioned publication is entitled to, this court is convinced

that consideration of mitigating conditions is not inconsis-

tent with the policies of the NEPA. ‘The policies of the

NEPA partly rest on informing Congress and the public

about potential environmental effects, as well as exploring

alternatives to the action which might lead to less en-

vironmental impact.'’ Maryland-National Capital Park and

12The court in Cabinet Mountains Wilderness also noted that the

publication could not be afforded retroactive effect to the facts of that

case. 685 F.2d at 683. The instant case presents no retroactivity bar to

consideration of the publication.

A-37

Planning Commission v. U.S. Postal Service, 487 F.2d

1029, 1041 (D.C.Cir.1973). The requirement of an EIS is

designed to implement this policy by acting as a full

disclosure of the environmental consequences of a proposed

action, and by ensuring that an agency will integrate en-

vironmental concerns into its decision-making process at

the earliest possible stages. Glitzenstein, supra at 264 (cita-

tions omitted).

The policy of disclosure and responsible environmen-

tal decision-making were given proper deference by the

Corps in the case sub judice. The EAs reflect an objective

and independent assessment of a comprehensive cornpila-

tion of studies and articles dealing with the overall short-

term and long-term environmental impacts of shell

dredging.!3 There exists no valid reason to disregard the

conditions imposed by the Corps. as well as those imposed

by various state agencies.!4 To do so is to ignore the

realities of the proposed actions and require an EIS

because of the effects posed by a ‘“‘hypothetical’’ project,

rather than the effects of the actual proposal. See also Sim-

mans, 370 F.Supp. at 18 (just as mitigation measures are

required in an EIS, such measures should likewise be iden-

tified in an environmental impact appraisal). The pro-

cedural scheme of NEPA is not so inflexible that the actual

effect of the proposal must take a back seat to the effects

of an action to which in fact, the environment will not be

subjected. Cf Committee for Auto Responsibility v

Solomon, 603 F.2d 992,1003 (D.C.Cir.1979).

Having decided that the Corps can properly consider

the conditions imposed on the permits, the question of the

13See note 3, supra.

14The Louisiana Department of Natural Resources and Wildlife

and Fisheries Commission have imposed conditions on the permits and

leases required by state law.

A-38

reasonableness vel non of the ‘‘no significant effect’’ deci-

sion remains.

As for the GCA, the conditions address, inter alia,

the primary concern of the effect on the emerging At-

chafalaya Delta. Dredging is prohibited in a well-defined

area near the Atchafalaya River Delta and the Wax Lake

Outlet Delta. Likewise, dredging is prohibited within 1,000

feet of exposed oyster reefs and within 1,500 feet of any

shoreline, and in specific areas heavily fished by

sportsmen.

The Corps found that benthic organisms near or in

the path of the dredge will be adversely impacted. But con-

sidering, as the Corps did, the limited number of benthic

organisms so affected in comparison to the vastness of the

area involved, the court finds the Corps’ ultimate conclu-

sion a reasonable one. The CEQ NEPA guidelines indicate

that in making the significance determination, it is proper,

under certain circumstances, to consider a broad context in

which the effect takes place. 40 C.F.R. § 1508.27(a). Many

areas inhabited by benthos will be untouched by dredging.

Moreover, there are no threatened or endangered species

impacted by dredging activity.

The conditions imposed in the LA permits include, as

mentioned infra, a complete prohibition of dredging in Lake

Maurepas until a monitoring system program approved by

the New Orleans District of the Corps is implemented to

detect the onset of potentially unacceptable situations

relative to turbidity. Dredging is also prohibited in certain

areas of Lake Pontchartrain, including the eastern part

which contains live oysters.

In regard to the impacts associated with turbidity on

the benthos of Lake Pontchartrain, it is noted that the

Corps’ conclusion that the effects are short-term and of a

temporary nature, standing alone, are not enough to reduce

the effects below the significance threshold. See 40 C.F.R.

A-39

§ 1508.27(b)(7). However, the court nevertheless finds

reasonable the Corps’ conclusion that given the en-

vironmental status of Lake Pontchartrain, the effect on the

present benthic community is insignificant. Sierra Club v.

Hassell, 636 F.2d at 1099.

[16] Furthermore, the state agencies have placed

onerous conditions on the dredging activities for both areas

as well. The manner of dredging and the number of shell

dredging barges are restricted, not to mention specific

areas which are off-limits. The requirement of the installa-

tion of a tamper-proof Loran C continuous location record-

ing system on the dredge barges also assures that dredging

is only done in those areas not restricted in the permits.

Since the possible significant effects of dredging are

mitigated by the conditions imposed by the Corps and

state agencies, the court tinds that the Corps was not

unreasonable in determining that preparation of an EIS is

unnecessary.

CONCLUSION

IT IS ORDERED that:

(1) The Motion of Federal Defendants to Limit

Review to Evidence Contained within the Administrative

Record be and it is hereby GRANTED;

(2) The Motion of Federal Defendants and

Defendants-In-Intervention to Dismiss the State of Loui-

siana and the Complaint (on all grounds) be and it is hereby

DENIED;

(3) The Motion of Plaintiffs for Summary Judgment

be and it is hereby DENIED; and

(4) The Motion of Federal Defendants and

Defendants-In-Intervention for Summary Judgment be

and it is hereby GRANTED.

A-40

APPENDIX E

§ 4321. Congressional decaration of purpose

The purposes of this chapter are: To declare a na-

tional policy which will encourage productive and en-

joyable harmony between man and his environment; to pro-

mote efforts which will prevent or eliminate damage to the

environment and biosphere and stimulate the health and

welfare of man; to enrich the understanding of the

ecological systems and natural resources important to the

Nation; and to establish a Council on Environmental

Quality.

Pub. L. 91-190, § 2, Jan. 1, 1970, 83 Stat. 852.

§ 4331. Congressional declaration of national en-

vironmental policy

Creation and maintenance of conditions under which

man and nature can exist in productive harmony

(a) The Congress, recognizing the profound impact of

man’s activity on the interrelations of all components of

the natural environment, particularly the profound in-

fluences of population growth, righ-density urbanization,

industrial expansion, resource exploitation, and new and

expanding technological advances and recognizing further

the critical importance of restoring and maintaining en-

vironmental quality to the overall welfare and development

of man, declares that it is the continuing policy of the

Federal Government, in cooperation with State and local

governments, and other concerned public and private

A-41

organizations, to use all practicable means and measures,

including financial and technical assistance, in a manner

calculated to foster and promote the general welfare, to

create and maintain conditions under which man and

nature can exist in productive harmony, and fulfill the

social, economic, and other requirements of present and

future generations of Americans.

Continuing responsibility of Federal Government to

use all practicable means to improve and coordinate

Federal plans, functions, programs, and resources

(b) In order to carry out the policy set forth in this

chapter, it is the continuing responsibility of the Federal

Government to use all practicable means, consistent with

other essential considerations of national policy, to im-

prove and coordinate Federal plans, functions, programs,

and resources to the end that the Nation may—

(1) fulfill the responsibilities of each generation as

trustee of the environment for succeeding generations;

(2) assure for all Americans safe, healthful, pro-

ductive, and esthetically and culturally pleasing

surroundings;

(3) attain the widest range of beneficial uses of the

environment without degradation, risk to health or

safety, or other undesirable and unintended con-

sequences;

(4) preserve important historic. cultural, and

natural aspects of our national heritage, and maintain,

wherever possible, an environment which supports

diversity and variety of individual choice:

A-42

(5) achieve a balance between population and

resource use which will permit high standards of living

and a wide sharing of life's amenities; and

(6) enhance the quality of renewable resources

and approach the maximum attainable recycling of

depletable resources.

Responsibility of each person to contribute to preser-

vation and enhancement of environment

enjoy a healthful environment and that each person has a

responsibility to contribute to the preservation and

enhancement of the environment.

Pub.L.91-190, Title I, § 101, Jan. 1, ‘970, 83 Stat. 852.

§ 4332. Cooperation of agencies; reports; availability of

information; recommendations; international

and national coordination of efforts

The Congress authorizes and directs that, to the

fullest extent possible: (1) the policies, regulations, and

public laws of the United States shall be interpreted and

administered in accordance with the policies set forth in

this chapter, and ‘2) all agencies of the Federal Government

shall—

(A) utilize a systematic, interdisciplinary ap-

proach which will insure the integrated use of the

natural and social sciences and the environmental

design arts in planning and in decisionmaking which

may have an impact on man’s environment;

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(B) identify and develop methods and procedures,

in consultation with the Council on Environmental

Quality established by subchapter II of this chapter.

which will insure that presently unquantified en-

vironmental amenities and values may be given ap-

propriate consideration in decisionmaking along with

economic and technical considerations;

proposals for legislation and other major Federal ac-

tions significantly affecting the quality of the human

environment, a detailed statement by the responsible

official on—

(i) the environmental impact of the proposed

action,

(ii) any adverse environmental effects which

cannot be avoided should the proposal be

implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term

uses of man’s environment and the maintenance

and enhancement of long-term productivity, and

(v) any irreversible and irretrievable com-

mitments of resources which would be involved in

the proposed action should it be implemented.

Prior to making any detailed statement, the responsi-

ble Federal official shall consult with and obtain the

comments of any Federal agency which has jurisdic-

tion by law or special expertise with respect to any

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environmental impact involved. Copies of such state-

ment and the comments and views of the appropriate

Federal, State, and local agencies, which are authoriz-

ed to develop and enforce environmental standards,

shall be made available to the President, the Council

on Environmental Quality and to the public as provid-

ed by section 552 of Title 5, and shall accompany the

proposal through the existing agency review

processes;

(D) Any detailed statement required under sub-

paragraph (C) after January 1, 1970, for any major

Federal action funded under a program of grants to

States shall not be deemed to be legally insufficient

solely by reason of having been prepared by a State

agency or official, if:

(i) the State agency or official has statewide

jurisdiction and has the responsibility for such

action,

(ii) the responsible Federal official furnishes

guidance and participates in such preparation,

(iii) the responsible Federal official in-

dependently evaluates such statement prior to its

approval and adoption, and

(iv) after January 1, 1976, the responsible

Federal official provides early notification to, and

solicits the views of, any other State or any

Federal land management entity of any action or

any alternative thereto which may have signifi-

cant impacts upon such State or affected Federal

land management entity and, if there is any

disagreement on such impacts, prepares a written

assessment of such impacts and views for incor-

poration into such detailed statement.

The procedures in this subparagraph shall not relieve

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the Federal official of his responsibilities for the scope,

objectivity, and content of the entire statement or of

any other responsibility under this chapter; and fur-

ther, this subparagraph does not affect the legal suffi-

ciency of statements prepared by State agencies with

less than statewide jurisdiction. !

(E} study, develop, and describe appropriate

alternatives to recommended courses of action in any

proposal which involves unresolved conflicts concern-

ing alternative uses of available resources:

(F) recognize the worldwide and long-range

character of environmental problems and, where con-

sistent with the foreign policy of the United States.

lend appropriate support to initiatives, resolutions.

and programs designed to maximize international

cooperation in anticipating and preventing a decline in

the quality of mankind's world environment:

(G) make available to States. counties.

municipalities, institutions, and individuals. advice

and information useful in restoring, maintaining, and

enhancing the quality of the environment:

(H) initiate and utilize ecological information in

the planning and development of resource-oriented

projects; and

(I) assist the Council on Environmental Quality

established by subchapter II of this chapter.

Pub.L.. 91-190. Title I, § 102. Jan. i, 1970. 83 Stat. 853:

Pub.L. 94-83, Aug. 9. 1975. 89 Stat. 424.

ISo in original.

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§ 1501.4 Whether to prepare an environmental impact

statement.

In determining whether to prepare an environ-

ment impact statement the Federal agency shall:

(a) Determine under its procedures supplementing

these regulations (described in § 1507.3) whether the

proposal is one which:

(1) Normally requires an environmental im-

pact statement, or

(2) Normally does not require either an en-

vironmental impact statement or an environmen-

tal assessment (categorical exclusion).

(b) If the proposed action is not covered by

paragraph (a) of this section, prepare an en-

vironmental assessment (§ 1508.9). The agency

shall involve environmental agencies, applicants,

and the public, to the extent practicable, in

preparing assessments required by § 1508.9(a)(1).

make its determination whether to prepare an en-

vironmental impact statement.

(d) Commence the scoping process (§ 1501.7),

if the agency will prepare an environmental im-

pact statement.

(e) Prepare a finding of no significant impact

(§ 1508.13), if the agency determines on the basis

of the evironmental assessment not to prepare a

statement.

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(1) The agency shall make the finding of no

significant impact available to the affected public

as specified in § 1506.6.

(2) In certain limited circumstances, which

the agency may cover in its procedures under §

1507.3, the agency shall make the finding of no

significant impact available for public review (in-

cluding State and areawide clearinghouse) for 30

days before the agency makes its final determina-

tion whether to prepare an environmental impact

statement and before the action may begin. The

circumstances are:

(i) The proposed action is, or is closely similar

to, one which normally requires the preparation of

an environmental impact statement under the

procedures adopted by the agency pursuant to §

1507.3, or

(ii) The nature of the proposed action is one

without precedent.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.