# Petition for Writ of Certiorari — Dravo Basic Materials Co. v. Louisiana > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0832%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1986 - **Citation:** 475 U.S. 1044 ## Text 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 ey i 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). ii 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 iv 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. v 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 1 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. 2 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. 3 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 4 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 5 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. 6 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. 7 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). 8 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 9 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. 10 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). 1] 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 12 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 13 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 14 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, v. 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. I 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. II 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. A 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 A-4 ks 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. 2. [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 designed by Congress, its decision, not plaintiffs’ conten- 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 es 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. ee 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. B. 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. ia 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 v. 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. v. 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 } z 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. 4 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 (c) The Congress recognizes that each person should 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; A-43 (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; (C) include in every recommendation or report on 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 A-44 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 A-45 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. A-46 § 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). (c) Based on the environmental assessment 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. A-47 (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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0832%3A1. Public record. Not legal advice.