# Petition for Writ of Certiorari — Town of Huntington v. Stone

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1990
- **Citation:** 494 U.S. 1004

## Text

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

>

THE TOWN OF HUNTINGTON, THE COUNTY OF SUFFOLK, THE COUNTY OF
NASSAU, THE TOWN OF NORTH HEMPSTEAD, THE TOWN OF OYSTER
BAY, and ROBERT J. MRAZEK,

: Petitioners,

—against —

JOHN O. MARSH, JR., Secretary of the U.S. Army, LT. GENERAL JOSEPH
K. BRATTON, Chief of the Corps of Engineers, COLONEL C.E. EDGAR
IlI, District Engineer, Army Corps of Engineers, New England Divi-
sion, and DEPARTMENT OF THE ARMY CORPS OF ENGINEERS OF THE

UNITED STATES OF AMERICA,
Respondents.

PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

JOSEPH D. PIZZURRO
101 Park Avenue

ARLENE LINDSAY New York, New York 10178-0061
DANIEL MARTIN (212) 696-6000

Town Attorney Counsel for Petitioner

Town of Huntington Town of Huntington

100 Main Street
Huntington, New York 11743
(516) 351-3042

CURTIS, MALLET-PREVOST,
COLT & MOSLE
101 Park Avenue
New York, New York 10178-0061
(212) 696-6000
JOHN P. CAMPBELL
PETER SULLIVAN

Of Counsel

i
QUESTIONS PRESENTED FOR REVIEW

. Where a plaintiff has established a federal agency’s continu-
ing violation of the National Environmental Policy Act of
1969, may a district court, in the exercise of its discretion,
enjoin the agency’s violation of the law without also requir-
ing the plaintiff to establish that harm has occurred or will
occur to the environment?

. Is the ‘irreparable harm’’ which must be shown prior to the
issuance of injunctive relief for violations of the National
Environmental Policy Act of 1969 limited exclusively to
injury to the environment?

. Does a continuing agency violation of NEPA in itself estab-
lish ‘irreparable harm’’ upon which a district court may, in
the exercise of its discretion, base its determination to grant
or withhold injunctive relief?

. Was the decision below incorrect in rejecting the standards
for issuing injunctive relief for violations of the National
Environmental Policy Act of 1969 as applied by the First,
Sixth, Eighth, Tenth and District of Columbia Circuits?

. Did the decision below misconstrue and misapply this
Court’s rulings in Weinberger v. Romero-Barcelo, 456 U.S.
305 (1982), and Amoco Production Co. v. Village of Gam-
bell, 480 U.S. 531 (1987)?

ill

TABLE OF CONTENTS

PAGE
QUESTIONS PRESENTED FOR REVIEW .......... i
pr Fe PN iy) oc ) yo |. rere iv
SY OY oc cccccsaccccceseeseccccccceses 2
EEE SG oGecccesccccecscoccccsccscccesec 2
EE COUNTED s co asscccessccccccscocececs 3
RGM EOE GUE DEUS CARI conc ccccccnccccccccces 3
REASONS FOR GRANTING THE WRIT ........... 5

A. The Second Circuit's Decision is in Conflict with
NEPA’s Objectives as Pronounced by this Court 6

B. There is a Conflict Among the Circuits on a
Material Issue of Law. Contrary to the Second
Circuit in this Case, the Majority of Circuits Has
Construed ‘‘Irreparable Harm’’ in NEPA Cases
Consistently with the Statute ................ 7

C. This Court Should Address the Issue of Injunc-
tive Relief for NEPA Violations Left Open in
EES BS OSS 6 cecccecccecccecs 10

D. The Second Circuit Misconstrued and Mis-
applied Weinberger v. Romero-Barcelo and
Amoco Production Co. v. Village of Gambeil . 10

ee ac ace se ec baeceeetaeeeceeeeces 13

SUE, BGS cus crssencccccsccccessesvesescenses Al

le

iv

TABLE OF AUTHORITIES

Cases PAGE

Aetna Casualty & Sur. Co. v. Flowers, 330 U.S. 464
Di acukkindnesabied 6de60RSkekeeeaan a ekensaene 3 n.2

Amoco Production Co. v. Village of Gambell, 480 U.S.
Pe ED 604564600 0000000068460 bees a Kenan 4, 6, 10-12

Arlington Coalition on Transportation v. Volpe, 458
F.2d 1323 (4th Cir.), cert. denied, 409 U.S. 1000

chs akan che ocad ad sbad Cebus eke ehh entadeen 9 n.6
Association Concerned About Tomorrow, Inc. v. Dole,

610 F. Supp. 1101 (N.D. Tex. 1985) ............... 8
Canal Authority of the State of Florida v. Callaway, 489

Ne a nee eeeeee ne 9
- fe fF ffl Oe fl errr 3n.2
Environmental Defense Fund v. Marsh, 651 F.2d 983

i deka chan ct etal abiheeuaeeeae 7,9n.6
Environmental Defense Fund v. TVA, 468 F.2d 1164 (6th

Gs PRG aidokh &ccald bb RAseeUSSRREabeeENe ees 8
Environmental Defense Fund, Inc. v. Froehlke, 477 F.2d

Pe Sn, DD Cc cccicescsecbbbenteseseewcce 8

Foundation on Economic Trends v. Heckler, 756 F.2d
See Se EE cen cab cavdskeusideenkensciss 7,8

Jones v. District of Columbia Redevelopment Land
Agency, 499 F.2d 502 (D.C. Cir. 1974), cert. denied,
Se ee NS 0-605. 04000660605 5460000440508 7

Kleppe v. Sierra Club, 427 U.S. 390 (1976) ........... 5, 10

Marsh v. Oregon Natural Resources Council, 109 S. Ct.
PT hanks cbdeusdetudadsendeeenekaseanenne 5,6

el

PAGE
Massachusetts v. Watt, 716 F.2d 946 (Ist Cir. 1983) ..7, 8, 12

Robertson v. Methow Valley Citizens Council, 109 S. Ct.
Se EE Sk cincudccudgudccasddatevacsasanecs 5, 6-7, 12

Scherr v. Volpe, 466 F.2d 1027 (7th Cir. 1972) ........ 7
Sierra Club v. Hodeil, 848 F.2d 1068 (10th Cir. 1988) .. 7, 12
Sierra Club v. Marsh, 872 F.2d 497 (ist Cir.

Fs 00csdcccdedseésscebsaccescbeessensess 7,9n.5, 12
South Carolina Dep’t of Wildlife & Marine Resources v.
Marsh, 866 F.2d 97 (4th Cir. 1989) .............4.. 9

Vermont Yankee Nuclear Power Corp. v. Natural
Resources Defense Council, Inc., 435 U.S. 519 (1978) 6

Weinberger v. Romero-Barcelo, 456 U.S. 305
GP Auccndcneusdsktsenbeusseeaeasthewedune 4, 6, 10-12

Wisconsin v. Weinberger, 745 F.2d 412 (7th Cir. 1984). 12

Statutes And Regulations
Administrative Procedure Act, 5 U.S.C. §§ 551-706

S Us GF sc ce cs ncvcsiccccsccsaccctunsesscss 3
DS ULB. FB FUE c wrcteccccccncceccssesecucnen

Alaska National Interest Lands Conservation Act,

BD Goce Ce ee iin occ ccecndeccactcdccceds 1]
Judiciary and Judicial Procedure

Be Cs © GS 6K cs ceciccccecccccoccscccccece 3
Federal Water Pollution Control Act,

PR ee Bo Ff PIT TTT TTT TT Tee 11

Marine Protection, Research, and Sanctuaries Act of
Ce, Be Sees ee ED a wécdacoaneesststectce 2

te erent

vi

PAGE
SD Wels OH OGRE Secnvecetdcicecesuecuncedecedent 3
SD Wes OF EE 6 Kin. cencacacccctiusccasanesahiaes 3
BD Ween OF 6.00.6060006060be0eaneeeabesesse 3
National Environmental Policy Act of 1969,
Se ts Ge ED cebacacoccacsncaeseceasene passim
Sy es SE 66-000 0006000 66080060456500000580 3, 6
Ge Ws SE 4 650600 060c6cecseeusbesesobebuan 3, 6
GB es SE Saws cn ccdcccoccuaecssdeesesbasens 3
Se Cs Se an 6060ccceccbscecsbdebaeeéacrk 4
Code of Federal Regulations
Sp Gras Oe ED cb ccccccceccasecsececse eres 3
Sp Grates Uy nn66.000c060scesseckonesGanees 4

Other Authority

17 C. Wright, A. Miller & E. Cooper, Federal Practice
and Procedure § 4036 (1988) .. 2... oc ccc ccc ene 3n.2

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989
No.

>_>—

THE TOWN OF HUNTINGTON, THE COUNTY OF SUFFOLK, THE
COUNTY OF NASSAU, THE TOWN OF NORTH HEMPSTEAD,
THE TOWN OF OYSTER BAY, and ROBERT J. MRAZEK,

Petitioners,
—against—

JOHN O. MARSH, JrR., Secretary of the U.S. Army, LT. GEN-
ERAL JOSEPH K. BRATTON, Chief of the Corps of Engi-
neers, COLONEL C.E. EDGAR III, District Engineer, Army
Corps of Engineers, New England Division, and DEPART-
MENT OF THE ARMY CORPS OF ENGINEERS OF THE UNITED

STATES OF AMERICA,
Respondents.

>

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

Petitioners Town of Huntington, County of Suffolk, County
of Nassau, Town of North Hempstead, Town of Oyster Bay
and Robert J. Mrazek respectfully request that a writ of certio-
rari issue to review the judgment and opinion of the United
States Court of Appeals for the Second Circuit, dated August
14, 1989. That judgment and opinion vacated an injunction,
issued by the United States District Court for the Eastern Dis-
trict of New York, based on violations of the National Environ-
mental Policy Act of 1969, 42 U.S.C. §§ 4321-4375 (““NEPA”’),

reer till

2

and the Marine Protection, Research, and Sanctuaries Act of
1972, 33 U.S.C. §§ 1401-1445 (the ‘Ocean Dumping Act"’), by
the United States Army Corps of Engineers (the ‘‘Corps’’).
Petitioners seek review of that portion of the Second Circuit's
decision declaring that, as a matter of law, a district court may
not enjoin violations of NEPA unless the plaintiff first prove
that the contemplated action will cause irreparable injury to the
environment.

OPINIONS BELOW

The opinion issued by the district court on March 22, 1988,
finding that petitioners had succeeded on the merits is unre-
ported and reprinted in the Appendix at A20.' The opinion of
the Second Circuit affirming that finding is reported at 859
F.2d 1134 (2d Cir. 1988) (‘Huntington I’) and reprinted in the
Appendix at A37.

The district court opinion of January 3, 1989, issuing the
injunction is unreported and reprinted in the Appendix at ASS.
The opinion of the court of appeals reversing the district court
is reported at 884 F.2d 648 (2d Cir. 1989) (“‘Huntington II’)
and reprinted in the Appendix at Al. The district court's opin-
ion on remand, dated October 26, 1989, is unreported and
reprinted in the Appendix at A64.

Citations to all opinions are to the relevant pages in the
Appendix.

JURISDICTION

The relevant decision of the Second Circuit was entered on
August 14, 1989. Al. On September 8, 1989, the Second Circuit
denied petitioners’ motion to stay the issuance of its mandate

l References in the form “‘A"’ refer to pages of the Appendix to this
Petition.

EE

3

pending certiorari review. A17-19.* On October 26, 1989, hav-
ing conducted further proceedings in accordance with the man-
date of the Second Circuit, the district court set aside the agency
action but denied petitioners’ request for injunctive relief. A64-
69.

This Court's jurisdiction is invoked pursuant to 28 U.S.C.
§ 1254()).

STATUTES INVOLVED

The relevant sections of NEPA are 42 U.S.C. §f 432i, 4331
and 4332, the relevant portions of which are reprinted in the
Appendix at A71-73. The relevant section of the Administrative
Procedure Act, 5 U.S.C. § 706, is reprinted in the Appendix at
A70.

STATEMENT OF THE CASE

In 1982, petitioners commenced this suit for declaratory and
injunctive relief against the Corps for its unlawful designation
of a dredged spoils disposal site in western Long Island Sound
known as WLIS III.’ On March 22, 1988, the district court
granted Huntington's motion for summary judgment. The dis-
trict court held that the Corps violated the Ocean Dumping Act
because it designated the WLIS III site without considering the
nature, quantity and cumulative effects of the dredged spoils to
be dumped there. A24-28; see 33 U.S.C. §§ 1412, 1413, 1416(f;
40 C.F.R. § 228.6(a). The district court further held that the
Corps’ environmental impact statement (the ‘‘EIS’’) submitted
in conjunction with the proposed site did not comply with
NEPA because it failed to discuss the nature, quantities and

2 The Second Circuit's issuance of its mandate did not extinguish the
right to petition for certiorari review of the judgment. Aefna Casualty
& Sur. Co. v. Flowers, 330 U.S. 464, 467 (1947); Carr v. Zaja, 283
U.S. $2, $3 (193%); 17 C. Wright, A. Miller & E. Cooper, Federal
Practice and Procedure § 4036, at 19 & n.26 (1988) (citing cases).

3. ~=—s The history of the disputed designation of the WLIS III disposal! site
is summarized in Huntington 1. See A39-43.

4

cumulative effects of dredged spoils to be dumped at the pro-
posed site. A28-31; see 42 U.S.C. § 4332(2)(C); 40 C.F.R.
§ 228.6(b). The district court declared the EIS void and
enjoined the Corps from dumping and issuing permits for
dumping dredged spoils at the WLIS III site unless and until the
Corps should issue an EIS complying with NEPA. A35.

On October 19, 1988, the Second Circuit affirmed the district
court’s ruling that the Corps’ designation of the WLIS III site
violated both NEPA and the Ocean Dumping Act. A44-52.
Thus, the agency action was properly set aside as ‘‘not in
accordance with law.’’ A54; see 5 U.S.C. § 706(2)(A). How-
ever, the Second Circuit vacated the injunction and remanded
the case to the district court, because the district court had not
explicitly addressed the appropriateness of injunctive relief on
the facts of the case. A53.

On remand, the district court issued a second opinion and
order enjoining the Corps from dumping dredged spoils, or
granting permits to dump dredged spoils, at WLIS III pending
compliance with NEPA and the Ocean Dumping Act. A55-63.
In response to the mandate of the Second Circuit in Huntington
I, the district court specifically engaged in a traditional balanc-
ing of the equities. A58-59, 63. In short, the district court found
that the only adverse effect of the issuance of the injunction
would be ‘‘inconvenience and additional cost to owners of
docks and piers.’’ A59. On balance, the district court concluded
that the public interest in the Corps’ compliance with NEPA
and the Ocean Dumping Act prior to further dumping at the
unlawfully designated site outweighed the reasons for denying
the injunction. A58-59.

On August 14, 1989, a panel of the Second Circuit vacated
the district court’s injunction. Al. Although plaintiffs had
established that the challenged agency action violated federal
law, the Second Circuit, purportedly relying on Weinberger v.
Romero-Barcelo, 456 U.S. 305 (1982), and Amoco Production
Co. v. Village of Gambell, 480 U.S. 531 (1987), held that the
‘irreparable harm’’ prerequisite to the granting of injunctive
relief ‘‘may not be postulated eo ipso on the basis of procedural

_——

violations of NEPA.’ A9-12, 14. Specifically, the pane!
required petitioners to prove ‘‘substantial danger to the envi-
ronment, in addition to a violation of procedural requirements

. . .’ Al3. The Second Circuit remanded the case for an evi-
dentiary hearing in the district court regarding, inter alia, the
parties’ disputed contentions regarding injury to the environ-
ment.

REASONS FOR GRANTING THE WRIT

This Court should grant certiorari because this case provides
the ideal vehicle for the establishment of clear and unambigu-
ous guidelines applicable to the exercise of a federal district
court’s discretion to issue injunctive relief in response to ongo-
ing violations of NEPA. The question of the scope of a federal
court’s discretion to issue injunctive relief in NEPA litigation
was expressly left open by this Court in Kleppe v. Sierra Club,
427 U.S. 390 (1976). See infra Part C. With the decision of the
Second Circuit, there is clearly a conflict among the circuits
regarding the power of a district court to issue an injunction
without first making a determination that environmental injury
will result from the NEPA violation. See infra Part B. In spite
of this Court’s recent statements of the overriding procedural
purposes of NEPA in Robertson v. Methow Valley Citizens
Council, 109 S. Ct. 1835 (1989), and Marsh v. Oregon Natural
Resources Council, 102 S. Ct. 1851 (1989), it is now the law in
the Second Circuit and a minority of other lower federal courts
that a district court is without power to enjoin ongoing viola-
tions of the statute unless a plaintiff has proven environmental
harm as well. This confusion is due in part to a misconception

4 On September 8, 1989, the Second Circuit denied petitioners’ request
for a stay of further proceedings pending this Court’s review. A17-19.
Without the stay, the mandate issued, and district court calendared the
case for the mandated evidentiary hearing. On October 26, 1989, the
district court issued a judgment declaring the EIS regarding the desig-
nation of the WLIS III site ‘‘void and of no effect.’’ A68-69. The dis-
trict court, however, found that petitioners had not sustained their
burden of proving environmental harm and withheld injunctive relief.
A65S-66.

6

of the significance of this Court’s rulings in Weinberger v.
Romero-Barcelo, 456 U.S. 305 (1982), and Amoco Production
Co. v. Village of Gambell, 480 U.S. 531 (1987). See infra Part
D. This Court should grant certiorari to settle this conflict
among the circuits, define the permissible objectives of NEPA
litigation and rectify the misapplication of its rulings in Wein-
berger and Amoco Production Co.

A. The Second Circuit’s Decision is in Conflict with NEPA’s
Objectives as Pronounced by this Court

NEPA is a policymaking statute, and its mandate is ‘‘essen-
tially procedural.’’ Vermont Yankee Nuclear Power Corp. v.
Natural Resources Defense Council, Inc., 435 U.S. 519, 558
(1978); see 42 U.S.C. § 4331. The procedural objectives of the
statute were explained by this Court last Term as follows:

NEPA does not work by mandating that agencies achieve
particular substantive environmental results. Rather,
NEPA promotes its sweeping commitment to ‘‘prevent or
eliminate damage to the environment and biosphere’’ by
focusing government and public attention on the environ-
mental effects of the proposed agency action. 42 U.S.C.
§ 4321. By so focusing agency attention, NEPA ensures
that the agency will not act on incomplete information
only to regret its decision after it is too late to
correct. . . . Similarly, the broad dissemination of infor-
mation mandated by NEPA permits the public and other
government agencies to react to the effects of a proposed
action at a meaningful time.

Marsh v. Oregon Natural Resources Council, 109 S. Ct. 1851,
1857-58 (1989). In a companion case, this Court further
explained NEPA’s procedural mandate to federal agencies:

Although these procedures are almost certain to affect the
agency’s substantive decision, it is now well settled that
NEPA itself does not mandate particular results, but sim-
ply prescribes the necessary process. . . . Other statutes
may impose substantive environmental obligations on fed-

7

eral agencies, but NEPA merely prohibits uninformed—
rather than unwise—agency action.

Robertson v. Methow Valley Citizens Council, 109 S. Ct. 1835,
1846 (1989) (footnote omitted). Nothing in NEPA prevents an
agency from taking an action which causes environmental
injury. Jd. Thus, nothing in NEPA confers upon a district court
the authority to issue an injunction solely to prevent the agency
from causing such injury. Only the need to protect Congress’
procedural mandate confers upon a district court the power to
issue injunctive relief for NEPA violations. The rule set down
by the Second Circuit, which allows a federal agency to disre-
gard NEPA procedures absent an additional showing of some
environmental harm inflicted by the agency, flies in the face of
the statute and vitiates the NEPA process.

B. There is a Conflict Among the Circuits on a Material Issue
of Law. Contrary to the Second Circuit in this Case, the
Majority of Circuits Has Construed ‘‘Irreparable Harm’’ in
NEPA Cases Consistently with the Statute

Given the well-settled objectives of NEPA, it is the view of
most federal circuit courts of appeals that the ‘‘harm’’ contem-
plated by NEPA is harm to the process mandated by Congress.
Sierra Club v. Marsh, 872 F.2d 497, 499 (1st Cir. 1989); Foun-
dation on Economic Trends v.: Heckler, 756 F.2d 143, 157
(D.C. Cir. 1985); Massachusetts v. Watt, 716 F.2d 946, 951-52
(ist Cir. 1983); Scherr v. Volpe, 466 F.2d 1027, 1034 (7th Cir.
1972); see also Sierra Club v. Hodei, 848 F.2d 1068, 1097 (10th
Cir. 1988); Environmental Defense Fund v. Marsh, 651 F.2d
983, 1005-06 (Sth Cir. 1981); Jones v. District of Columbia
Redevelopment Land Agency, 499 F.2d 502, 512-13 (D.C. Cir.
1974), cert. denied, 423 U.S. 937 (1975).

Thus, when an agency proceeds with a proposed federal
action in violation of NEPA’s mandated procedures, the harm
sought to be remedied by the statute has already occurred.
Foundation on Economic Trends v. Heckler, 756 F.2d at 157;
Massachusetts v. Watt, 716 F.2d at 952; Jones v. District of
Columbia Redevelopment Land Agency, 499 F.2d at 512-13;

id

8

Environmental Defense Fund, Inc. v. Froehlke, 477 F.2d 1033,
1037 (8th Cir. 1973); Environmental Defense Fund v. TVA, 468
F.2d 1164, 1183-84 (6th Cir. 1972); Association Concerned
About Tomorrow, Inc. v. Dole, 610 F. Supp. 1101, 1119 (N.D.
Tex. 1985).

This definition of ‘‘harm’’ in the context of NEPA litigation _
is squarely based on the very purpose of the statute. This was
explained by the First Circuit in the following passage:

NEPA is not designed to prevent all possible harm to the
environment; it foresees that decisionmakers may choose
to inflict such harm, for perfectly good reasons. Rather,
NEPA is designed to influence the decisionmaking pro-
cess; its aim is to make government officials notice envi-
ronmental considerations and take them into account.
Thus, when a decision to which NEPA obligations attach
is made without the informed environmental consideration
that NEPA requires, the harm that NEPA intends to pre-
vent has been suffered.

Massachusetts v. Watt, 716 F.2d at 952. If there was any need
to further clarify the reasoning supporting the majority posi-
tion, that need was attended by a subsequent opinion of the
District of Columbia Circuit:

The NEPA duty is more than a technicality; it is an
extremely important statutory requirement to serve the
public and the agency before major federal actions
occur. . . . If plaintiffs succeed on the merits, then the
lack of an adequate environmental consideration looms as
a serious, immediate and irreparable injury. Although the
balancing of this harm against other factors is necessarily
par icularized, . . . the injury itself is clear.

Foundation on Economic Trends v. Heckler, 756 F.2d at 147
(emphases in original).

The Second Circuit, without any discussion of NEPA’s
requirements or its objectives, reached a result in direct conflict

9

with the cases cited above.’ Under the rule postulated by the
Second Circuit, a government agency can simply disregard
NEPA’s requirements and yet a district court is powerless to
enjoin that action unless a plaintiff can show irreparable envi-
ronmental injury.

A similar rule appears to be in effect in the Fourth and Fifth
Circuits. In South Carolina Dep’t of Wildlife & Marine
Resources v. Marsh, 866 F.2d 97, 100 (4th Cir. 1989), the
Fourth Circuit narrowed the scope of a district court’s injunc-
tion to that ‘‘reasonably required to protect the environment.’’
Similarly, in Canal Authority of the State of Florida v. Calla-
way, 489 F.2d 567, 574 (Sth Cir. 1974), the Fifth Circuit
reversed a district court’s injunction because it was made with-
out a finding of irreparable environmental harm.°

This Court should grant certiorari to settle this conflict
among the circuits.

S In Huntington II, the Second Circuit expressly recognized its depar-
ture from the analysis adopted by the First Circuit in Sierra Club v.
Marsh, 872 F.2d 497 (ist Cir. 1989). Al2 n.1. The Second Circuit,
however, sought to minimize the practical effect of this conflict by
stating that the application of the First Circuit’s NEPA analysis would
not change the result in this case because this case also involves a viola-
ticn of the Ocean Dumping Act. This petitioner fails to see how, hav-
ing established a violation of the Ocean Dumping Act, it is now
deprived of its rights under NEPA.

6 There appears to be some confusion as to the state of the law in both
the Fourth and the Fifth Circuits. In Arlington Coalition on Transpor-
tation v. Volpe, 458 F.2d 1323, 1333-34 (4th Cir.), cert. denied, 409
U.S. 1000 (1972), the Fourth Circuit did not require a showing of envi-
ronmental harm as a prerequisite to injunctive relief, stating that a dis-
trict court may enjoin an agency’s continuing violation of NEPA to
avoid rendering the mandated NEPA process a ‘‘meaningless formal-
ity.’’ Jd. at 1333. This case was neither overruled by nor addressed in
South Carolina Dep’t of Wildlife.

In a case subsequent to Canal Authority, the Fifth Circuit in Envi-
ronmental Defense Fund v. Marsh, 651 F.2d 983, 1005-06 (Sth Cir.
1981), set down the specific remedial aims to be achieved by enjoining
a NEPA violation and did not include the prevention of environmental
injury. Again, however, the circuit court did not specifically overrule
or even address its prior holding in Canal Authority.

aii

10

C. This Court Should Address the Issue of Injunctive Relief
for NEPA Violations Left Open in Kleppe v. Sierra Club

In Kleppe v. Sierra Club, 427 U.S. 390 (1976), this Court
reviewed the District of Columbia Circuit’s grant of an injunc-
tion based on an agency’s failure to file a broad regional envi-
ronmental impact statemeni before proceeding with a local
action for which an adequate individual environmental impact
statement had already been issued. Because this Court held
there was no NEPA violation in that case, it expressly withheld
passing judgment on the District of Columbia Circuit's state-
ment that ‘‘the ‘harm’ justifying an injunction ‘matured’ when-
ever an impact statement is due and not filed.’’ 427 U.S. at 407.
This Court, for the purposes of that case, accepted the circuit
court’s own statement of the law and resolved the issue by find-
ing that no regional impact statement was ever ‘‘due.’’ /d.

By contrast in this case, it is undisputed that the WLIS Ill
impact statement is deficient and thus void and of no effect. See
A3-4, 35, 63, 68-69. Here, the law as stated by the District of
Columbia Circuit and the majority of other circuits compels a
finding of irreparable harm justifying an injunction. The deci-
sion of the Second Circuit cannot be allowed to stand without
holding the District of Columbia Circuit, and the majority of
other circuits, wrong and radically altering the conduct of
NEPA litigation. This case provides this Court with an oppor-
tunity to address this question of national importance.

D. The Second Circuit Misconstrued and Misapplied Wein-
berger v. Romero-Barcelo and Amoco Production Co. v.
Village of Gambell

Despite holdings to the contrary in other circuits, the Second
Circuit now holds that the ‘‘teaching’’ of Weinberger v.
Romero-Barcelo, 456 U.S. 305 (1982), and Amoco Production
Co. v. Village of Gambell, 480 U.S. 531 (1987), is that a district
court may not issue injunctive relief in NEPA litigation until
‘*substantial danger to the environment, in addition to a viola-
tion of procedural requirements, is established.’’ Al2, 13. The

1]

Second Circuit is wrong. If applicable at all, those cases support
the opposite proposition.

First, in both of those cases, the courts of appeals errone-
ously foreclosed the district court’s traditionally broad discre-
tion to grant or withhold injunctive relief upon the finding of a
statutory violation. In both cases, this Court reversed the courts
of appeals and held that the relevant statutes did not foreclose
the district court’s traditional equitable discretion. Asnoco
Prod. Co., 480 U.S. at 541-46; Weinberger, 456 U.S. at 320. In
this case, the Second Circuit similarly erred in limiting the dis-
cretion of a district court to enjoin statutory violations by con-
ditioning the exercise of that discretion on a plaintiff's showing
of environmental harm.’ Thus a district court has no discretion
to issue injunctive relief for a violation of NEPA unless, in
addition, some environmental injury is established. This limita-
tion on the discretion of the district court is contrary to the
teaching of Weinberger and Amoco Production Co.

Second, in both cases, this Court held the exercise of the dis-
trict court’s discretion must be guided by the legislative pur-
poses of the violated statute. The violated statute in Weinberger
was the Federal Water Pollution Control Act, 33 U.S.C.
§§ 1251 ef seg., whose purpose is the ‘‘integrity of the Nation’s
waters, . . . not the permit process.’’ Weinberger, 456 U.S. at
314. The Court held that the district court is not required to
issue an injunction for every procedural violation of the statute
if there are countervailing equitable considerations and if less
drastic remedies would fulfill the statute’s substantive purpose.

The statute implicated in Amoco Production Co. was the
Alaska National Interest Lands Conservation Act, 16 U.S.C.
§§ 3101 ef seg., whose substantive purpose is ‘‘to protect Alas-
kan subsistence resources from unnecessary destruction.’’

7 The rule adopted in the First and District of Columbia Circuits, and
advocated by petitioners herein, does not require a district court to
grant injunctive relief for every NEPA violation. Such a ruie would
violate the principles underlying Weinberger and Amoco Production
Co. Rather, this rule permits the district court the discretion to grant
such relief after the NEPA violation has been established, if the court,
after balancing the equities, determines that such relief is appropriate.

il

12

Amoco Prod. Co., 480 U.S. at 544. Thus, the court of appeals
in that case was wrong, based on a procedural violation of that
statute alone, to restrict the district court’s exercise of its equi-
table powers in granting or withholding injunctive relief.

By contrast, in this case, as recently stated by this Court, the
violated statute is essentially procedural and does not impose
substantive environmental obligations. See Robertson v.
Methow Valley Citizens Council, 109 S. Ct. at 1846. Thus, a
violation of the mandated procedures is precisely the type of
injury which should justify injunctive relief in the appropriate
circumstances. See supra pp. 6-9. Certainly neither Weinberger
nor Amoco Production Co. requires that a district court disre-
gard NEPA violations and refuse to enjoin those violations
until it is established precisely what environmental injury will
result from the agency’s uninformed action. Sierra Club v.
Marsh, 872 F.2d 497; Massachusetts v. Watt, 716 F.2d at 951-
53; accord Sierra Club v. Hodel, 848 F.2d at 1097; see also Wis-
consin v. Weinberger, 745 F.2d 412, 432-33 (7th Cir. 1984)
(Cudahy, J., concurring in part, dissenting in part). The Second
Circuit was wrong to hold the contrary and condition the dis-
trict court’s exercise of its discretion not simply on the finding
of the statutory violations and a balancing of the equities as in
Huntington I, but also on a finding of environmental harm.

Weinberger and Amoco Production Co. are decisions of
potential consequence to every case seeking to enforce proce-
dural statutory obligations and should not be subject to con-
flicting interpretations. This alone is cause for this Court to
issue a writ of certiorari.

tlds aia

i I Se eB

3 PA A 6 ot 6

13

CONCLUSION

Certiorari should be granted.

Dated: New York, New York
November 13, 1989

Respectfully submitted,

JOSEPH D. PIZZURRO
101 Park Avenue
New York, New York 10178-0061
(212) 696-6000
Counsel for Petitioner
Town of Huntington

ARLENE LINDSAY

DANIEL MARTIN

Town Attorney

Town of Huntington

100 Main Street

Huntington, New York 11743

(516) 351-3042

CURTIS, MALLET-PREVOST,
COLT & MOSLE
101 Park Avenue
New York, New York 10178-0061
(212) 696-6000
JOHN P. CAMPBELL
PETER SULLIVAN

Of Counsel

APPENDIX @

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TABLE OF CONTENTS TO APPENDIX

Opinion of the United States Court of Appeals for the
Second Circuit, dated August 14, 1989 .............

Order of the United States Court of Appeals for the Sec-
ond Circuit, dated September 8, 1989, denying Town
of Huntington's request for a stay of the issuance of
the mandate pending certiorari review... ...........

Memorandum of Decision and Order, with Permanent
Injunction Judgment, of the United States District
Court for the Eastern District of New York, dated
ED ts I So SS Skccnceecoecéeecceeceececes

Opinion of the United States Court of Appeals for the
Second Circuit, dated October 19, 1988 ............

Memorandum of Decision and Order, with Permanent
Injunction Judgment, of the United States District
Court for the Eastern District of New York, dated Jan-
es GE SOUEESAds dc cecccceccedbicvescececess

Memorandum of Decision and Order and Judgment of
the United States District Court for the Eastern Dis-
trict of New York, dated October 26, 1989 .........

Administrative Procedure Act, 5 U.S.C. § 706

National Environmental Policy Act of 1969
Se es MEE ee oC he de Kh ecdesurceccccccccseves
7 § 8 fA TUETITT TTT TTT TTT TTT ree
Se Es EE SRS tccdsacdcececoereccccsiscuces

PAGE

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UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT.

a

No. 1196—August Term, 1988
(Argued: June 23, 1989 Decided: August 14, 1989)
Docket No. 89-6039

—

THE TOWN OF HUNTINGTON, THE COUNTY OF SUF-
FOLK, THE COUNTY OF NASSAU, THE TOWN OF
NORTH HEMPSTEAD, THE TOWN OF OYSTER BAY,
and ROBERT J. MRAZEK,

Plaintiffs-Appellees,

—against—

JOHN O. MARSH, JR., SECRETARY OF THE U.S. ARMY,
LT. GENERAL JOSEPH K. BRATTAN, CHIEF OF THE
CORPS OF ENGINEERS, COLONEL C.E. EDGAR III,
DISTRICT ENGINEER, ARMY CORPS OF ENGINEERS,
NEW ENGLAND DIVISION, AND DEPARTMENT OF THE
ARMY CORPS OF ENGINEERS OF THE UNITED STATES

OF AMERICA,
Defendants-Appellants.

Before:

MESKILL, PIERCE and MAHONEY,
Circuit Judges.

A2

Appeal from a judgment of the United States District
Court for the Eastern District of New York, Jacob
Mishler, Judge, enjoining defendants-appellants from
dumping dredged materials, or issuing permits to dump
dredged materials, at a site designated Western Long
Island Sound III.

Vacated and remanded.

we

ROBIN L. GREENWALD, Assistant United
States Attorney for the Eastern District of
New York, Brooklyn, New York (Andrew
J. Maloney, United States Attorney for
the Eastern District of New York, Robert
L. Begleiter, Assistant United States
Attorney for the Eastern District of New
York, Brooklyn, New York, of counsel),
Sor Defendants-Appellants.

JOSEPH D. PIZZURRO, New York, New York
(Arlene Lindsay, Town Attorney, Town
of Huntington, Huntington, New York,
Daniel Martin, John P. Campbell, Peter
K. Vigeland, Peter Sullivan, Curtis,
Mallet-Prevost, Colt & Mosle, New York,
New York, of counsel), for Plaintiffs-
Appellees.

Eric Lukingbeal, Hartford, Connecticut
(Dwight H. Merriam, Duncan Ross
Mackay, Robinson & Cole, Hartford,
Connecticut, of counsel), for Amici
Curiae The Connecticut Marine Trades

me sO es PIN

fa? ne ane Ny adda ae RE cece ey (AER te SLES Arabi ge

A3

Association and The New York Marine
Trades Association.

os

MAHONEY, Circuit Judge:

This is an appeal from a judgment of the United States
District Court for the Eastern District of New York, Jacob
Mishler, Judge, enjoining defendants-appellants, John O.
Marsh, Jr., Secretary of the U.S. Army, Lt. General
Joseph K. Bratton, Chief of the Corps of Engineers, Colo-
nel C.E. Edgar, III, District Engineer, Army Corps of
Engineers, New England Division, and the Department of
Army Corps of Engineers of the United States of America
(collectively the ‘‘Corps’’) from dumping dredged materi-
als, or issuing permits to dump dredged materials, at a dis-
posal site designated Western Long Island Sound III
(‘““WLIS III’’) located in the Long Island Sound (the
*‘Sound’’) off Huntington, New York. The Corps con-
tends that the permanent injunction was erroneously
entered by the district court in behalf of the plaintiffs-
appellees, the Town of Huntington, County of Suffolk,
County of Nassau, Town of North Hempstead, Town of
Oyster Bay and Robert J. Mrazek (collectively ‘‘Hun-
tington’’), because the district court failed to balance the
equities between the parties and conduct an evidentiary
hearing as required by our prior decision in Town of Hun-
tington v. Marsh, 859 F.2d 1134 (2d Cir. 1988) (‘‘Hun-
tington I’), familiarity with which is assumed.

In Huntington I, we affirmed the district court’s grant
of Huntington’s motion for summary judgment and
denial of the Corp’s cross-motion for summary judgment,
concluding that: (1) the Marine Protection, Research, and

A4

Sanctuaries Act of 1972, 33 U.S.C.A. §§ 1401-1445 (1986
& West Supp. 1989) (‘Ocean Dumping Act’’) applied to
the initial designation of WLIS-III as a disposal site; and
(2) the environmental impact statement (‘‘EIS’’) issued by
the Corps for its designation of WLIS III as a dumpsite
violated (a) the Ocean Dumping Act because it failed to
consider the Act’s criteria for the designation of such sites,
and (b) the National Environmental Protection Act of
1969 (‘S‘NEPA’’), 42 U.S.C. §§ 4321-4374 (1982 & Supp.
V 1987), because it failed to consider the types, quantities
and cumulative effects of the dredged material which
would be deposited at WLIS III.

In Huntington I, however, we vacated a permanent
injunction issued by the district court, identical to the per-
manent injunction before us on this appeal, because ‘‘nei-
ther the opinion [underlying the injunction] nor the order
[imposing it] addressed the appropriateness of an injunc-
tion on the facts of this case,’’ and remanded ‘‘for the pur-
pose of making such a determination, to be guided by
traditional equitable principles.’’ 859 F.2d at 1143.

On remand, the district court again imposed an injunc-
tion identical in terms to the previously vacated injunc-
tion, without holding an evidentiary hearing, finding that
**{t]he public has an interest in maintaining the physical,
chemical and biological balance at the dump site that out-
weighs the private interest,’’ described as ‘‘inconvenience
and additional cost to owners of docks and piers.’’ The
Corps again appeals the determination of the district
court.

We vacate and remand.

Se Grae. pe

Patina AMM ay Wits ab niet hed 7

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A5
Background

The facts underlying this litigation are comprehensively
stated in Huntington I, and that statement is incorporated
by reference here. Briefly, in the fall of 1980, certain own-
ers and operators of marinas in Mamaroneck Harbor,
New York (the ‘‘Applicants’’), located on the Sound,
requested permits to conduct dredging operations on their
properties and dispose of the dredged material at an ocean
dumpsite, seeking to avail themselves of the economies
arising from scheduled dredging of federal waterways in
the area by the Corps and the resulting presence of dredg-
ing contractors. On March 23, 1981, the Applicants modi-
fied their application to allow disposal of their waste at
‘“*the closest available site’’ in the Sound, which was the
Central Long Island Sound dumpsite (‘‘CLIS’’) located
off New Haven, Connecticut; that application was
granted. On September 1, 1981, they again requested a
modification to allow dumping further west in the Sound.
Since there were no operative dumpsites west of CLIS in
the Sound at the time, the Corps was required to designate
a new dumpsite, which turned out to be WLIS III.

This designation was a ‘‘major federal action’’ requir-
ing an EIS under NEPA. See 42 U.S.C. § 4332(2)(c)
(1982). A final EIS was issued on February 12, 1982, and
the Corps designated WLIS III on March 16, 1982. Hun-
tington promptly initiated this litigation. Pursuant to per-
mit applications granted by the Corps, dumping at WLIS
III was conducted from the designation of the site until the
entry of the initial injunction in this action on March 22,
1988, and thereafter until June 1, 1988, as authorized by a
stay of that injunction entered by the district court upon
application of the Corps. Under the original designation,
dumping has never been allowed at WLIS III from June 1

A6

to September 30 of any year, and no alteration of that
arrangement is apparently contemplated by any party to
this action.

No dumping has been conducted at WLIS III since June
1, 1988. The original injunction entered by the district
court precluded the resumption of dumping after Septem-
ber 30, 1988, and the injunction entered after the remand
in Huntington I (combined with a prior temporary
restraining order) precluded it thereafter. The Corps con-
tends that it has monitored the impact of the dumping that
occurred at WLIS III from March, 1982 to June, 1988 (1)
by reviewing applications for permits to dump at that site
for, inter alia, their cumulative effect on the site; and (2)
pursuant to an ongoing Disposal Area Monitoring System
(‘‘DAMOS’’) program established by the Corps in 1977,
under which it monitors open water disposal sites for
physical, chemical and biological effects of disposing of
dredged materials. A DAMOS survey of WLIS III con-
ducted in August and October, 1985 establishes, according
to the Corps, that the dumping conducted at WLIS III has
not had any adverse environmental impact.

As indicated earlier herein, upon remand in Huntington
I, the district court imposed a permanent injunction iden-
tical to the prior injunction vacated in Huntington I, after
oral argument but without any evidentiary hearing,
stating:

The Congress designated the WLIS III site as an
ocean dumping site to give assurance that the physical
chemical and biological balance in those waters would
be maintained. The requirement of FEIS under ODA,
NEPA and its regulations was for the purpose of giv-
ing the public adequate time and opportunity to
investigate and argue the effects of the dumping of

A7

dredged spoils. We do not accept the opinion of the
Corps as a substitute for Congressional mandate. We
believe that absent an injunction prohibiting the
dumping, the Corps will engage in the practice of
issuing permits for the illegal use of the site.

The resulting effect of the issuance of an injunction
is the inconvenience and additional cost to owners of
docks and piers. The public has an interest in main-
taining the physical, chemical and biological balance
at the dump site that outweighs the private interest.

. . *

In balancing the competing claims and the effect the
granting or withholding of the injunctive relief wouid
have on the parties, we find that the plaintiffs have
established irreparable damage and the right to the

injunctive relief as set forth in the Permanent Injunc-
tion Judgment dated March 22, 1988.

(Footnote and citations omitted.)

This appeal followed. At the oral argument of the
appeal, counsel for the Corps stated that the data compila-
tion and report review for the new EIS under preparation
by the Corps pursuant to court order would be completed
by August 15, 1989, and the proposed EIS would be
released for a forty-five day public comment period on
October 16, 1989. Final issuance of an EIS would follow
thereafter, the timing dependent upon the nature and com-
plexity of the public comments and resulting action by the
Corps. The outstanding injunction provides that ‘‘[t]he
court retains jurisdiction over this matter and grants
defendants the opportunity to comply with the pertinent
statutes and regulations and seek modification of this
judgment.’’

\ A8

Counsel for Huntington contended at oral argument
that the violation of NEPA resulting from issuance of a
defective EIS establishes irreparable injury, to be balanced
**on a particularized basis in each case against the compet-
ing equities.’’ He conceded, however, that Huntington did
**not contest’’ the Corps’ assertion that it had conducted
Ongoing studies of WLIS III which ‘‘indicate a lack of
environmental damage’’ from the dumping that has
occurred at that site.

Discussion

The issues concerning the Corps’ violation of the Ocean
Dumping Act and NEPA in connection with its initial des-
ignation of WLIS III were both resolved in favor of Hun-
tington in Huntington I. The only issue to be resolved on
this appeal is whether the injunction issued upon remand
was properly entered.

As we recognized in Huntington I, provision is made for
injunctive relief in the Ocean Dumping Act, 33 U.S.C.
§ 1415(g)(1) (1982). 859 F.2d at 1143. We further recog-
nized that injunctive relief has been used when appropriate
for violations of NEPA. Jd., Natural Resources Defense
Council v. Callaway, 524 F.2d 79, 94-95 (2d Cir. 1975).
We also noted, however, that injunctive relief does not
follow automatically upon a finding of statutory viola-
tions, including environmental violations. 859 F.2d at
1143. ‘*On the contrary, ‘[a]n injunction should issue only
where the intervention of a court of equity is essential in
order effectually to protect property rights against injuries
otherwise irremediable.’ ’’ Jd. (quoting Weinberger v.
Romero-Barcelo, 456 U.S. 305, 312 (1982) (quoting Cava-
naugh v. Looney, 248 U.S. 453, 456 (1919))); see also

A9

Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531,
542-45 (1987) (preliminary injunction).

The Supreme Court has repeatedly held that the basis
for injunctive relief is irreparable injury and the inade-
quacy of legal remedies. Aymoco Prod. Co., 480 U.S. at
542; Weinberger, 456 U.S. at 312; Rondeau v. Mosinee
Paper Corp., 422 U.S. 49, 61 (1975); Sampson v. Murray,
415 U.S. 61, 88 (1974); Beacon Theaters, Inc. v. Westover,
359 U.S. 500, 506-507 (1959); see also Hecht Co. v.
Bowles, 321 U.S. 321, 329 (1944) (essence of equity juris-
diction is power of chancellor to do equity and mould
decree to necessities of particular case).

In applying these general equitable standards for the
issuance of injunctions in the area of environmental stat-
utes, the Supreme Court has explicitly rejected the notion
that an injunction follows as a matter of course upon a
finding of statutory violation. In Weinberger, for exam-
ple, the United States Navy had conducted training activi-
ties in and around the Island of Vieques, a municipality of
the Commonwealth of Puerto Rico, in the course of which
it discharged ordnance into the adjacent waters. The Gov-
ernor of Puerto Rico and others sued, alleging violation,
inter alia, of (1) the Federal Water Pollution Control Act
(‘“FWPCA”’) by failing to obtain a permit from the Envi-
ronmental Protection Agency (‘‘EPA’’) with respect to the
discharge of ordnance; (2) an executive order relating to
listing of sites in the National Register of Historic Places;
and (2) NEPA by failing to file an EIS with respect to the
training activities at Vieques. The district court agreed that
these violations had occurred, and ordered that they be
cured ‘‘with all deliberate speed,’’ but refused to grant
broader injunctive relief upon finding that the training
activities were not causing any appreciable harm to the

Al0

Vieques ecology and were essential to the national defense.
Romero-Barcelo v. Brown, 478 F. Supp. 646, 705-08
(D.P.R. 1979), rev’d, 643 F.2d 835 (ist Cir. 1981), rev’d
sub, nom, Weinberger v. Romero-Barcelo, 456 U.S. 305
(1982).

On appeal, the First Circuit Court of Appeals deter-
mined that the injunction was properly limited with
respect to the historic places issue, and that the Navy had
filed the required EIS, mooting that issue. 643 F.2d at 862.
On the FWCPA issue, however, the circuit court vacated
and remanded with the direction that the Navy be enjoined
from discharging ordnance into the coastal waters of
Vieques until such time as a permit was obtained, id. at
862, stating: ‘‘Whether or not the Navy’s activities in fact
harm the coastal waters, it has an absolute statutory obli-
gation to stop any discharges of pollutants until the permit
procedure has been followed and the Administrator of the
Environmental Protection Agency, upon review of the evi-
dence, has granted a permit.’’ Jd. at 861.

In reversing, the Supreme Court registered its flat dis-
agreement with the First Circuit’s ruling. The Court said:

The integrity of the Nation’s waters, however, not the
permit process, is the purpose of the FWPCA. As
Congress explained, the objective of the FWCPA is to
**restore and maintain the chemical, physical, and
biological integrity of the Nation’s waters.’’ 33
U.S.C. § 1251(a).

This purpose is to be achieved by compliance with
the Act, including compliance with the permit
requirements. Here, however, the discharge of ord-
nance had not polluted the waters, and, although the
District Court declined to enjoin the discharges, it

ee ee ee Pee eS

:
:

All

neither ignored the statutory violation nor undercut
the purpose and function of the permit system. The
court ordered the Navy to apply for a permit. It tem-
porarily, not permanently, allowed the Navy to con-
tinue its activities without a permit.

456 U.S. at 314-15.

Similarly, in Amoco Prod. Co., the Ninth Circuit Court
of Appeals determined that the Secretary of the Interior
had failed to comply with provisions of the Alaska
National Interest Lands Conservation Act (‘‘ANILCA’’)
and directed the entry of a preliminary injunction enjoin-
ing certain oil and gas lease activity by the Secretary pend-
ing the outcome of the litigation. People of Village of
Gambell v. Hodel, 774 F.2d 1414 (9th Cir. 1985), rev’d
sub. nom. Amoco Prod. Co. v. Village of Gambell, 480
U.S. 531 (1987). In doing so, the circuit court held that
** *fijrreparable damage is presumed when an agency fails
to evaluate thoroughly the environmental impact of a pro-
posed action,’ ’’ and ‘‘ ‘[o]nly in a rare circumstance may
a court refuse to issue an injunction when it finds a NEPA
violation.’ ’’ 774 F.2d at 1423 (quoting Save our Ecosys-
tems v. Clark, 747 F.2d 1240, 1250 (9th Cir. 1984)).

The Supreme Court again reversed, specifically repu-
diating the quoted formulation as ‘‘contrary to traditional
equitable principles and [having] no basis in ANILCA.”’
480 U.S. at 545. The Court further stated:

[T]he environment can be fully protected without this
presumption. Environmental injury, by its nature,
can seldom be adequately remedied by money dam-
ages and is often permanent or at least of long dura-
tion, é.e., irreparable. If such injury is sufficiently
likely, therefore, the balance of harms will usually

Al2

favor the issuance of an injunction to protect the _
environment. Here, however, injury to subsistence
resources from exploration was not at all probable.

Id. (emphasis added).

The teaching of these cases seems clear, and is echoed by
rulings in this circuit.’ In New York v. Nuclear Regulatory
Comm’n, 550 F.2d 745 (2d Cir. 1977), for example, we
reviewed our rulings on the precise issue before this court,
as follows:

It is true . . . that appellant has pointed out cases
which do appear to support appellant’s position that
any NEPA violation constitutes, per se, irreparable
harm so as to require the issuance of preliminary
injunctive relief, . . . but, as appellees correctly
assert, the law in this circuit is clear on this issue and
directly contrary to the position appellant would have

1 The First Circuit, in Sierra Club v. Marsh, 872 F.2d 497 (ist Cir.
1989), expressed the view that because NEPA is a purely procedural
Statute, and because Weinberger, applying FWPCA, and Amoco
Prod. Co., applying ANILCA, dealt with statutes that embody sub-
stantive standards, Weinberger and Amoco Prod. Co. should not rou-
tinely govern decisions in NEPA cases. That is, irreparable harm is
more likely to occur if the regulated activity goes forward concurrently
with the NEPA process, because interests and expectations favoring
the activity will harden as the NEPA process continues, and there is no
statutory mandate other than to complete the process. In the case of
statutes like FWPCA and ANILCA, on the other hand, there is a sub-
stantive standard against which the regulated activity wil! ultimately be
subjected to meaningful measurement, even if it is allowed to continue
pendente lite. See Sierra Club, 872 F.2d at 502-03.

Whatever the merits of this analysis, its application would not lead
to a different result here. In addition to the process mandated by
NEPA, see 42 U.S.C. § 4322(2)(c) (1982), this case is governed, as
Huntington I held, by the substantive standards set by the Ocean
Dumping Act, see 33 U.S.C. § 1413(a) (1982). Weinberger and Amoco
Prod. Co. would accordingly control here under the Sierra Club analy-
sis.

Al3

us adopt. In Conservation Society of Southern Ver-
mont, Inc. v. Secretary of Transportation, 508 F.2d
927 (2d Cir. 1974), vacated on other grounds and
remanded, 423 U.S. 809, 96 S.Ct 19, 46 L.Ed. 2d 29
(1975), we were confronted with the precise argument
appellant advances here and we responded as follows:

Although the procedural requirements of
NEPA must be followed scrupulously and cost
or delay will not alone justify noncompliance
with the Act, where the equities require, it
remains within the sound discretion of a district
court to decline an injunction, even where devia-
tions from prescribed NEPA procedures have
occurred.

508 F.2d at 933-934 (footnotes omitted). This stance
has been reaffirmed in The East 63rd Street Associa-
tion v. Coleman, Docket No. 76-6083, at 3 (2d Cir.,
May 18, 1976) (order) [see 538 F.2d 309], in which we
explained: ‘‘We also note that even if there were vio-
lations of the National Environmental Policy Act,
which we by no means find, the district court has sub-
stantial discretion to determine whether an injunction
should issue.’’ See Greene County Planning Board v.
Federal Power Commission, 455 F.2d 412, 424-425
(2d Cir.), cert. denied, 409 U.S. 849, 93 S.Ct. 56, 34
L.Ed. 2d 90 (1972).

Id. at 753-54 (some citations omitted).

Broader injunctive relief is appropriate, of course,
where substantial danger to the environment, in addition
to a violation of procedural requirements, is established.
In Natural Resources Defense Council v. Callaway, 524
F.2d 79 (2d Cir. 1975), for example, we directed the entry

Al4

of a preliminary injunction prohibiting the Navy from
continued dumping at a dumpsite off New London, Con-
necticut in the Sound, id. at 94-95. We found a threat of
irreparable injury where substantial evidence was pre-
sented that contaminated material which the Navy pro-
posed to deposit at that site ‘‘would eventually break up
and disperse to the northwest where it would contaminate
and destroy the first nurseries and marine resources on the
coast,’’ id. at 82. But a threat of irreparable injury must be
proved, not assumed, and may not be postulated eo ipso
on the basis of procedural violations of NEPA.

This especially concerns us on the record presented in
this case. The Corps contends that it has monitored the
dumping that occurred at WLIS III for more than six
years, in connection with both the permits issued for
dumping at that site and its DAMOS program to monitor
such sites, and that no injury to the environment has
occurred or is threatened as a result of the operation of
WLIS III. At oral argument of this appeal, Huntington’s
counsel, upon specific inquiry, stated that Huntington did
‘*not contest’’ this assertion.

We do not regard this colloquy as binding upon Hun-
tington, and we note that Huntington introduced some
evidence below of actual damage at the site. That evi-
dence, however, was simply an assertion by a Huntington
consultant in an affidavit that samples of materials from
five Sound harbors, listed in the initial EIS as harbors that
would utilize WLIS III for dredged material disposal,
revealed sediments which, if dumped at WLIS ITI, would
degrade the environment. The Corps maintains, on the
other hand, that it does not allow dumping at WLIS III of
sediments of the type specified by Huntington as poten-
tially injurious to the environment.

a oa

Al5

The Corps also contends that interest other than
‘inconvenience and additional cost to owners of docks
and piers,’’ such as benefit to the State of Connecticut and
its coastal zone management plan and increased safety of
navigation for boats entering and exiting harbors in the
Sound, weigh in favor of the continued operation of
WLIS III pending the issuance of a valid EIS. It is not the
function of this court to resolve these factual contentions.
We review them only to indicate the nature of the consid-
erations which the district court should address upon
remand in determining whether any further injunction of
dumping at WLIS III should issue in this action.

We do not regard the proceedings in the district court
following the remand in Huntington I as consistent with
these standards. The Corps sought an evidentiary hearing
‘‘to determine the appropriateness of injunctive relief
here,’’ but no such hearing was held. More decisively, the
district court appears to have ruled that the establishment
of a statutory violation, without more, warranted an
injunction. The court determined that the public interest
‘*in maintaining the physical, chemical and biological bal-
ance at the dumpsite’’ outweighed the competing private
interest, defined as ‘‘inconvenience and additional cost to
owners of docks and piers,’’ resulting in a determination
that ‘‘plaintiffs have established irreparable damage.’’ No
consideration was given, however, to the question whether
plaintiff had met its burden to establish some actual or
threatened injury to ‘‘the physical, chemical and biologi-
cal balance at the dump site,’’ as distinguished from the
Corps’ conceded failure to generate a proper EIS before
its initial designation of WLIS III.

This is the inquiry to be pursued at an evidentiary hear-
ing upon remand. Plaintiffs, of course, will bear the bur-

Al6

den of establishing irreparable injury, see Corenco Corp.
v. Schiavone & Sons, Inc., 362 F. Supp. 939, 944
(S.D.N.Y.), aff'd, 488 F.2d 207 (2d Cir. 1973); United
States v. Gilman, 341 F. Supp. 891, 907 (S.D.N.Y. 1972),
and the court should consider and balance all the equities
and interests presénted for its determination. Weinberger,
456 U.S. at 311-13 (collecting cases).

Finally, we note the representations made by the Corps
at oral argument concerning the timetable for generating
an EIS, and trust that this effort will be pursued expedi-
tiously. We have no reason to doubt the Corps’ bona fides .
in this regard, but simply note that this factor has a bear-
ing on the overall equities which the district court must
consider. Cf. Weinberger, 456 U.S. at 320 (should it
become clear that compliance with environmental statute
not forthcoming, court should reconsider balance of equi-
ties it has struck).

Conclusion

The judgment of permanent injunction is vacated and
the case remanded for further proceedings consistent with
this opinion.-Fhe-mandate shall issue forthwith.

Al7

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

—

Docket Number 89-6039

-~>-— -

TOWN OF HUNTINGTON, ef ai.,
Plaintiffs-Appellees,
—against—
JOHN O. MARSH, ef al.,
Defendants-A ppellants.

—

NOTICE OF MOTION
FOR STAY OF MANDATE
PENDING CERTIORARI REVIEW

>

MOTION By: (Name and tel. no. of law firm and of attorney in
charge of case)
Joseph D. Pizzurro, Esq.
CURTIS, MALLET-PREVOST, COLT & MOSLE
101 Park Avenue
New York, New York 10178-0061
(212) 696-6000

OPPOSING COUNSEL: (Name and tel. no. of law firm and of
attorney in charge of case)
Andrew J. Maloney,
Robin L. Greenwald
UNITED STATES ATTORNEY,
Eastern District of New York
225 Cadman Plaza East
Brooklyn, New York 11201
(718) 330-7100

Als

Has consent of opposing counsel:

A. been sought? Yes L) No
B. been obtained? LJ Yes [4 No
Has service been effected? 4] Yes L] No
Is oral argument desired? L) Yes L] No

(Substantive motions only}

Requested return date:
(See Second Circuit Rule 27(b))

Has argument date of appeal been set:
A. by scheduling order? Ll) Yes [lANo
B. by firm date of argument notice? CL) Yes lINo
C. If Yes, enter date:

EMERGENCY MOTIONS, MOTIONS FOR STAYS & INJUNCTIONS
PENDING APPEAL
Has request for relief been made below? [J Yes Lj No

(See F.R.A.P. Rule 8) N/A
Would expedited appeal eliminate need
for this motion? LC) Yes LJ No

If No, explain why not:

Will the parties agree to maintain the
status quo until the motion is heard? (L] Yes L) No

Judge or agency whose order is being appealed:
Honorable Jacob Mishler, Eastern District of New York.

Brief statement of the relief requested:
A stay of this Court’s mandate, and further proceedings in the
District Court in Town of Huntington et al. v. Marsh, et al., 82

Civ. 0793 (JM), pending application for certiorari to the
Supreme Court of the United States.

Al9

By: (Signature of attorney) Appearing for: (Name of party)

/s/ JOSEPH D. PIZZURRO Town of Huntington

Signed name must be
printed beneath

Joseph D. Pizzurro August 16, 1989

Date
Appellant or Petitioner:
C) Plaintiff | ©) Defendant
Appellee or Respondent:
Plaintiff () Defendant

ORDER

UNITED STATES COURT OF APPEALS
SECOND CIRCUIT

Filed Sept. 8, 1989

Elaine B. Goldsmith, Clerk

IT IS HEREBY ORDERED that the motion be and it hereby is
denied.

/s/ THOMAS J. MESKILL (JDM) |

/s/ LAWRENCE W. PIERCE (JDM)

9-8-89 /s/ J. DANIEL MAHONEY
Date Circuit Judge

A20

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

>

CV 82-0793
March 22, 1988
>

THE TOWN OF HUNTINGTON, THE COUNTY OF SUFFOLK, THE
COUNTY OF NASSAU, THE TOWN OF NORTH HEMPSTEAD,
THE TOWN OF OYSTER BAY, and ROBERT J. MRAZEK,

Plaintiffs,
~—against—

JOHN O. MARSH, JR., Secretary of the U.S. Army, LT. GEN-
ERAL JOSEPH K. BRATTON, Chief of the Corps of Engi-
neers, COLONEL C.E. EDGAR, III, District Engineer, Army
Corps of Engineers, New England Division, and DEPART-
MENT OF THE ARMY CORPS OF ENGINEERS OF THE UNITED
STATES OF AMERICA,

Defendants.
a

MEMORANDUM OF DECISION AND ORDER

APPEARANCES:

HERBERT A. SMITH, JR., ESQ.
Town Attorney
Town of Huntington
100 Main Street
Huntington, New York 11743

CURTIS, MALLET-PREVOST, COLT & MOSLE, ESsQs.
Co-Counsel for Plaintiff
Town of Huntington
101 Park Avenue
New York, New York 10178
John P. Campbell, Esq., Of Counsel

A2l

Joyce D. LONG, Esq.
County Attorney
Office of the Suffolk County Attorney
159 North County Complex
Veterans Memorial Highway
Hauppauge, New York 11788

WILLIAM D1 CONZA, Esq.
Assistant Town Attorney
Town of Hempstead
220 Plandome Road
Manhasset, New York 11030

MICHAEL T. LANGAN, Esq.
Assistant County Attorney
Office of the Nassau County Attorney
County Executive Building
One West Street
Mineola, New York 11501

KENNETH A. DAVIS, Esq.
Assistant Deputy Town Attorney
Town of Oyster Bay
Audrey Avenue
Oyster Bay, New York 11711

D’AMATO, FORCHELLI, LIBERTI,
SCHWARTZ & MINEO, Esqs.
120 Mineola Boulevard
P.O. Box 31
Mineola, New York 11501
Anton J. Borovina, Esq., Of Counsel

HONORABLE ANDREW J. MALONEY

UNITED STATES ATTORNEY

EASTERN DISTRICT OF NEW YORK
225 Cadman Plaza East
Brooklyn, New York 11201
Robin L. Greenwald, Assistant
U.S. Attorney

>

A22

MISHLER, District Judge

In March 1982, the Army Corps of Engineers (‘‘Corps’’) des-
ignated an open water disposal site for dredged material in the
Western Long Island Sound (‘*WLIS III’’). On March 22, 1982,
plaintiffs filed this action challenging the Corps’ environmental
impact statement for WLIS III pursuant to the National Envi-
ronmental Policy Act of 1974 (“‘NEPA’”’), 42 U.S.C. § 4321 ef
seq. and the Marine Protection Research and Sanctuaries Act
of 1972 (‘‘Ocean Dumping Act’’), 33 U.S.C. § 1401 ef seq.
Under NEPA the Corps is required to issue an environmental
impact statement (‘‘EIS’’) assessing the environmental conse-
quences of designating WLIS III as a disposal site. Plaintiffs
claim that the EIS prepared by the Corps is inadequate and does
not provide a basis for designation of WLIS III in that the state-
ment fails to consider the type, quantity and cumulative effect
of the dredged material to be dumped at the proposed site.

Plaintiffs now move for summary judgment pursuant to Fed.
R. Civ. P. 56, seeking:

1) a declaration that the designation of WLIS III as an
open water dumping site is void and invalid;

2) a declaration that the EIS is invalid as it violates the
requirements of NEPA; and

3) an injunction prohibiting the Corps from permitting
dumping at WLIS III unless and until the Corps issues
an environmental impact statement in conformity with
NEPA and designates an open water site in conformity
with the Ocean Dumping Act.

Defendants cross move for summary judgment claiming: (1)
to the extent that the Ocean Dumping Act regulates the disposal
of dredged materials in the Long Island Sound, the Act applies
only to individual applications for permits to dispose of
dredged material at open water sites; (2) NEPA does not man-
date that criteria required under the Ocean Dumping Act for
site designation be considered by the Corps when issuing an
environmental impact statement; and (3) NEPA itself does not
require, in an EIS for the designation of a disposal site, that the

A23

Corps consider and discuss the type and quantities of materials
to be disposed of at the site. Defendants also assert that the des-
ignation of WLIS III as a disposal site was in full compliance
with NEPA and the applicable regulations.

DISCUSSION

Summary Judgment Standard of Review

We set out the general principles governing summary judg-
ment motions. Summary judgment is appropriate where it
appears from the pleadings, depositions, admissions, answers
to interrogatories and affidavits—considered in the light most
favorable to the opposing party—that there is no genuine issue
as to any material fact and the moving party is entitled to judg-
ment as a mater of law. Fed. R. Civ. P. 56(c). The moving party
has the heavy burden of establishing the absence of a genuine
issue of fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157,
90 S. Ct. 1598, 1608 (1970); Katz v. Goodyear Tire & Rubber
Co., 737 F.2d 238, 244 (2d Cir. 1984); United States v. One Tin-
toretto Painting, 691 F.2d 603, 606 (2d Cir. 1982). That burden
includes the presentation by the moving party of facts showing
that his adversary’s case is baseless or, in other words, such
** evidence on which, taken by itself [the movant] would be
entitled to a directed verdict.’ ’’ Donnelly v. Guion, 467 F.2d
290, 293 (2d Cir. 1972) (quoting Radio City Music Hail Corp. v.
United States, 135 F.2d 715, 718 (2d Cir. 1943)).

Summary judgment is an extreme remedy, not to be granted
unless the moving party has established his right to judgment
with such clarity as to leave no room for controversy. Beal v.
Lindsay, 468 F.2d 287, 291 (2d Cir. 1972). Summary judgment
is not appropriate where an inquiry into the facts is deemed
proper by the court to clarify the issues and application of law.
During oral argument counsel for both sides agreed that there
were no factual issues in dispute and that the court could decide
the issues as a matter of law.

A24

Application of the Ocean Dumping Act to the Designation of a
Disposal Site at WLIS Il

The Corps begins by arguing that the Ocean Dumping Act
applies only to the issuance of permits for ocean disposal of
wastes and not to the designation of open water dumping sites.
(Defendants’ Memorandum of Law at 15-18). The Corps is
plainly wrong.

The Ocean Dumping Act, 33 U.S.C. §§ 1401 ef seg., and the
regulations promulgated thereunder, set forth standards to be
used in designating disposal sites and in evaluating applications
for permits to dispose of material in ocean waters. 33 U.S.C.
§ 1412, 40 C.F.R. Part 228 (1987). The Act authorizes the
Corps to issue permits and designate sites for dredged waste
only, and the Environmental Protection Agency (‘‘EPA’’)
Administrator to issue permits and to designate sites for the dis-
posal of all other wastes, see 33 U.S.C. §§ 1412(a)(c), 1413
(1987); 40 C.F.R. 228.4(e)(2) (1987); National Wildlife Federa-
tion v. Costle, 629 F.2d 118, 121 (D.C. Cir. 1980).

When the EPA Administrator is designating an ocean water
dumping site the regulations set out criteria for site selection
which specifically require the agency to consider the type and
quantity of wastes proposed to be disposed of at the site. 40
C.F.R. § 228.6(a)(4) (1987). Similarly, the Corps cannot issue a
permit for dumping of dredged materials in ocean waters until
it has designated a site considering the same criteria and evalua-
tion process that the Administrator must utilize when the
agency designates an ocean dumping site for waste disposal. 40
C.F.R. § 228.4(2) (1987).' The Corps is required to have bio/
assay/bioaccumulation data prepared for the known permit
applications and an analysis of that data performed as to what
effect the dredged material would have on the water quality,

1 The Corps does not have to designate a site if it chooses to use a site
previously designated by the Administrator.

A25

aquatic life or wildlife at the proposed site.’ Furthermore, the
regulations specifically require the Corps to include the results
of the disposal site evaluation in preparing an environmental
impact statement where such a statement is required by EPA
policy. 40 C.F.R. § 228.6(b) (1987). In sum, no permit can be
issued for the dumping of dredged material unless a site has
been properly designated and no site can be properly designated
until the type and quantity of known dredged material to be
dumped there have been considered, evaluated and explained in
an environmental impact statement.

Originally, the Ocean Dumping Act applied only to ocean
waters. 33 U.S.C. § 1411(a), 40 C.F.R. § 20.2(c) (1987). In
1980, Congress amended the Act to apply to Long Island
Sound. 33 U.S.C. § 1416(f) states:

(f) Dumping of dredged material in Long Island Sound
from any Federal, etc., project. In addition to other provi-
sions of law and not withstanding the specific exclusion
relating to dredged material in the first sentence in section
102(a) of this Act [33 USCS § 1412(a)], the dumping of
dredged material in Long Island Sound from any Federal
project (or pursuant to Federal authorization) or from a
dredging project by a non-Federal applicant exceeding
25,000 cubic years shall comply with the criteria estab-
lished pursuant to the second sentence of section 102(a) of
the Act [33 USCS § 1412(a)) relating to the effects of
dumping. Subsection (d) of this section shall not apply to
this sub-section.

(Oct. 23, 1972, P.L. 92-532, Title 1, § 106, 86 Stat. 1058; Dec.
22, 1980, P.L. 96-572, § 4, 94 Stat. 3345).

Plaintiff contends that when Congress amended the Ocean
Dumping Act to apply to the Long Island Sound, the Act, as

2 According to the Affidavit of Dr. Terry C. Cosper, bio-assay tests
indicate the extent to which certain species would be killed from exposure to
the dredged materials. Bio-accumulation tests study the tissues of organisms
surviving the bio-assay tests to determine if specific pollutants are retained by
the species.

A26

amended, applies to site designations as well as to permit appli-
cations. (Plaintiff's Memorandum of Law at 14). Defendants
counter that the Act applies only to the Long Island Sound in
connection with the issuance of a permit to dump dredged
material and then only if the application is from a Federal
project, or if the application is a non-Federal one for the dis-
posal of greater than 25,000 cubic yards of dredged material.
(Defendants’ Memorandum of Law at 15).

When Congress amended the Ocean Dumping Act to apply to
the Long Island Sound, it intended that ‘‘the same biological
and testing procedures used to assess the suitability of dredged
spoils for ocean disposal would be used to assess the suitability
of dumping dredged spoils in Long Island Sound."’ H. Rep.
No. 894, Part 2 at 8, 96th Cong., 2d Sess. (1980). The Commit-
tee believed that the ‘‘safeguards of the Ocean Dumping Act
represent minimum safety standards acceptable to dredge soil
disposal in . . . Long Island Sound.’’ Jd. at 7. The House
Committee report stated that it was their intention to require
that the same bio-accumulation tests and bio-assay tests which
were already required before any permit could be issued for the
ocean disposal of any dredge spoil be undertaken before allow-
ing similar disposal in Long Island Sound. Jd.

Under the Corps’ interpretation of the amendment, these
tests are not required unless permit applications to dump at
WLIS III are made by Federal projects, non-Federal projects of
over 25,000 cubic yards, or for highly toxic, Class II] materials.
(James Crawford Decl. { 37). Accordingly, under the Corps’
reasoning they would never be required to consider the type and
quantity of dredged material when determining a site for dis-
posal in the Long Island Sound, and, so long as the permit
applicants are non-Federal, or less than 25,000 cubic yards, or
do not contain Class III materials, the Corps does not have to
consider the more exacting criteria set out in the Ocean Dump-
ing Act before issuing a permit to dump at WLIS III.

We find this interpretation of the amendment to be illogical
and not in keeping with the clear legislative intent of protecting
the Long Island Sound from pollution by extending the safe-
guards of the Ocean Dumping Act to the dumping of dredged
materials in the Sound.

A27

At the time that the Corps was in the process of designating
WLIS III as an open water disposal site there were at least 22
pending permit applications. Although none of these permit
applications were from Federal projects of from non-Federal
projects of over 25,000 cubic yards, the approximate volume of
material to be dredged and disposed of was 86,000 cubic yards.
(Crawford Decl. ¢ 8). According to the Affidavit of Herbert A.
Smith, Jr., submitted by plaintiff, at least 84 permit applica-
tions have been submitted and over 667,240 cubic yards of
dredged material have been disposed of at WLIS III.

If one follows the Corps’ reasoning, there is no requirement
that the Corps evaluate the cumulative impact that an extended
period of dumping particular dredged materials would have on
the aquatic iife at WLIS II]. There is no need to make a long
range forecast as to what would be a reasonable rate of dump-
ing or what the actual contaminant levels of dredged materials
would be over an extended period of time. Rather, the Corps
prefers to evaluate each permit application in isolation, consid-
ering only the immediate environmental impact that issuing a
permit for one particular project would have on the site. The
lack of long range planning for open water disposal was one of
the primary problems Congress meant to solve when it enacted
the Ocean Dumping Act. See U.S. Code Cong. & Admin.
News, 92nd Cong., 2d Sess., 1972, p. 4234 ef seq.

It simply does not make any sense that Congress meant that
the Corps should be allowed to designate a disposal site for this
magnitude of dredged material in the Long Island Sound with-
out being required to perform the same tests on and analysis of
the material to be disposed of as the Corps would be required to
if it were designating a disposal site in the ocean waters. The
risk of harm to the aquatic environment of the Long Island
Sound that could be caused by such dumping is at least as sub-
stantial as the risk of harm to ocean waters.

We believe that when Congress amended the Ocean Dumping
Act to apply to the Long Island Sound, the legislative intent was
to make the entire Act, including the site designation regula-
tions, applicable to the Long Island Sound. To allow over
667,240 cubic yards of dredged material to be dumped at an
open water site without having properly designated the site

A28

under the site selection criteria set forth in the regulations in 40
C.F.R. § 228 violates the spirit of the Ocean Dumping Act if
not the exact letter of the law.’

Compliance with the National Environmental Policy Act of -
[1969]

Plaintiffs assert that NEPA requires the defendants, prior to
designating a disposal site, to issue an environmental impact
statement which analyzes and considers the nature and quanti-
ties of dredged materials to be disposed of at WLIS III and the
cumulative effect of such dumping on the aquatic environment.
(Plaintiffs’ Memorandum of Law at 25). Plaintiffs’ basis for
this conclusion is two-fold. One, in order for the public to
understand the statement and comment meaningfully, and in
order to insure that the agency has fully considered the environ-
mental factors, plaintiffs contend that a detailed statement
regarding the environmental impact of the proposed action
must consider and analyze the types and quantities of material
to be disposed of at the proposed site. Second, plaintiffs state
that the Ocean Dumping Act is incorporated by NEPA and
therefore NEPA requires an agency to follow the more exacting
criteria specified in the Ocean Dumping Act regulations when
issuing an EIS in compliance with NEPA. (Plaintiffs’ Memo-
randum of Law at 12).

Whether the Corps had to comply with the criteria analysis
required under the Ocean Dumping Act for a site designation in
the Long Island Sound is discussed in the preceding section.
Therefore, we turn to the plaintiffs’ second argument—that
under NEPA itself the Corps’ designation of WLIS III was
insufficient absent a consideration of the nature, quantity, and
cumulative effect of materials to be disposed of at the site.

Although our decision that the Ocean Dumping Act applies
to site designation as well as permit applications for dumping of
dredged materials in the Long Island Sound is dispositive of this

3 Of course once the site has been properly designated the Corps
would not be required to analyze the dredged material in accordance with the
criteria established in the Ocean Dumping Act each time a permit application
is made unless the permit application is made by a Federal project, a Feder-
ally authorized project or a non-Federal project of over 25,000 cubic years.

A29

motion, we wish to address this second issue. We find that
under NEPA itself, regardless of the application of the Ocean
Dumping Act, the Corps’ EIS statement was inadequate for its
failure to address the type and quantity and cumulative effect
of dredged material to be disposed of at WLIS III.

The purpose of an environmental impact statement is to
enable others, who did not take part in the decision to designate
the site, to comprehend and consider meaningfully the factors
involved and to insure that the agency decision-maker has fully
considered all the environmental factors involved in making the
site selection. See County of Suffolk v. Secretary of Interior,
562 F.2d 1368 (2d Cir. 1977). The requirements in 42 U.S.C.
§ [4332] set a high standard for the agencies to meet when issu-
ing an environmental impact statement. Chelsea Neighborhood
Ass’n. v. United States Postal Service, 516 F.2d 378 (2d Cir.
1975). Yet, NEPA does not require an agency to make a ‘‘crys-
tal ball inquiry.’’ Rather, under the ‘‘rule of reason,’’ the EIS
must set out only such information as appears to be reasonably
necessary under the circumstances for evaluation of the project
rather than to be so all encompassing in scope that the task of
preparing the report would become almost impossible. National
[Resources] Defense Council, Inc. v. Callaway, 524 F.2d 79, 88
(2d Cir. 1975).

In reviewing an agency determination ‘‘[t]he only role for a
court is to insure that the agency has taken a ‘hard look’ at envi-
ronmental consequences.’’ Klepp[e] v. Sierra Club, 427 U.S.
390, 410 n.21, 96S. Ct. 2718, 2730 n.21 (1976). ‘‘Given the role
of the EIS and the narrow scope of permissible judicial review,
the court may not rule an EJS inadequate if the agency has
made an adequate compilation of relevant information, has
analyzed it reasonably, has not ignored pertinent data, and has
made disclosures to the public.’’ (citations omitted) County of
Suffolk, 562 F.2d at 1383.

‘*The district court cannot substitute its judgment for that of
the agency.’’ Scenic Hudson Preservation Conference v. Fed-
eral Power Commission, 453 F.2d 463, 468 (2d Cir. 1971), cert.
denied, 407 U.S. 926, 92 S. Ct. 2453 (1972). Yet if the court
finds that the agency did not make a reasonably adequate com-
pilation of relevant information, or ignored conflicting views of

A30

other agencies having pertinent expertise, the court may be
properly skeptical as to whether the EJS’s conclusions have a
substantial basis in fact and may properly find that the EIS does
not satisfy the requirements of NEPA. Sierra Club v. United
States Army Corps of Engineers, 701 F.2d 1011, 1030 (2d Cir.
1983).

Defendants contend that the final environmental statement
was a detailed statement which considered and described the
appropriate alternatives to the proposed site and that the agen-
cy’s conclusions in the EIS have a substantial basis in fact. Fur-
ther, the case law is clear that the statement does not have to
engage in pure speculation or hypothesis but simply requires the
EIS to consider all significant environmental consequences that
can reasonably be expected to flow from the agency determina-
tion. Ceunty of Suffolk, 562 F.2d at 1377.

Plaintiffs have presented evidence in support of their claim
that the EIS prepared by the Corps in designating WLIS III was
unsatisfactory. Plaintiffs point to the abbreviated scoping
period of five days* and the shortened review period and have
submitted copies of comment letters from the United States
Department of the Interior and the Office of Marine Pollution
Assessment which were critical of the initial draft environmen-
tal statement. (Plaintiff’s Exhibits B and C). The letters accused
the Corps of doing a ‘‘rush’’ job. Both agencies pointed out the
lack of site-specific data and the lack of physical and chemical
data regarding the dredged material to be dumped at the pro-
posed site. (Plaintiffs’ Exhibit D).

It is only logical that the agency could not be required to con-
sider in every instance the type and quantity of material to be
disposed of when issuing an environmental impact statement.
Obviously, in many cases, the agency will not have the neces-

4 Plaintiffs contend that the scoping period was five days, based on
the publication of a notice of intent published in the Federal Register on
December 9, 1981 and the issuance of a draft environmental statement by the
Corps on December 14, 1981. The Corps asserts that the scoping period
began in August 1981 when the Corps first determined the need for an envi-
ronmental impact statement. 40 C.F.R. § 501.7 (1987) requires that the scop-
ing period be preceded by the publication of a notice of intent in the Federal
Register.

A31

sary data to make sucii as: assessment. However, in the matter
of WLIS III, the agency certainly knew where some of the
dredged material would be coming from. Indeed, the Declara-
tion of James Crawford makes it clear that the Corps was well
aware of both Federal and private projects which had or would
apply for permits to dispose of dredged material at the WLIS
III site. (James Crawford Affidavit at ¢ 31). The Corps cannot
claim that consideration of the type of dredged material to be
disposed of would require the Corps to engage in pure specula-
tion nor would the data have been overly difficult to have
acquired. Reasonable forecasting and speculation are implicit
in NEPA, and an agency cannot simply label it all a crystal ball
inquiry. Scientists’ Institut{e] for Public Information, Inc. v.
Atomic Energy Commission, 481 F.2d 1079, 1092 (D.C. Cir.
1973). Furthermore, an EIS cannot ignore environmental con-
sequences of the decision at hand on the ground that another
report will be forthcoming later. County of Suffolk, 562 F.2d at
1377. In doing so, the Corps failed to permit intelligent and
meaningful discussion regarding the environmental conse-
quences of the disposal of dredged materials at WLIS III. Fur-
ther, for the Corps to excuse a failure to include relevant,
accessible information on the ground that it can consider such
information later on a piecemeal basis (that is, as each applicant
seeking a permit to dump is made) ignores the fact that the
Corps has failed to adequately consider the long range cumula-
tive effect that all these projects being dumped at WLIS III
would have and the risk of harm to the marine co ~munity. See
National Resource|s] Defense Council v. Callaway, 524 F.2d
79, 88-90 (2d Cir. 1975).

A32

CONCLUSION

Having found that the Army Corps of Engineers did not
comply with the Ocean Dumping Act and the applicable regula-
tions promulgated thereunder, and having found that the envi-
ronmental impact statement prepared for designating an open
water disposal site at WLIS III was inadequate because it vio-
lates the requirements of NEPA, the court grants summary
judgment in favor of the plaintiffs and denies defendants’
cross-motion for summary judgment, and it is

SO ORDERED.

The Clerk of the Court is directed to enter judgment in the
form approved by the court.

/s/ JACOB MISHLER
U.S.D.J.

A33

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

>

CV 82-0793
Filed March 22, 1988

>

THE TOWN OF HUNTINGTON, THE COUNTY OF SUFFOLK, THE
COUNTY OF NASSAU, THE TOWN OF NORTH HEMPSTEAD,
THE TOWN OF OYSTER BAY, and ROBERT J. MRAZEK,

Plaintiffs,
—against—

JOHN O. MARSH, JR., Secretary of the U.S. Army, LT. GEN-
ERAL JOSEPH K. BRATTON, Chief of the Corps of Engi-
neers, COLONEL C.E. EDGAR, III, District Engineer, Army
Corps of Engineers, New England Division, and DEPART-
MENT OF THE ARMY CORPS OF ENGINEERS OF THE UNITED

STATES OF AMERICA,
Defendants.

—

PERMANENT INJUNCTION JUDGMENT

APPEARANCES:

HERBERT A. SMITH, JR., ESQ.
Town Attorney
Town of Huntington
100 Main Street
Huntington, New York 11743

A34

CURTIS, MALLET-PREVOST, COLT & MOSLE, ESaQs.
Co-Counsel for Plaintiff
Town of Huntington
101 Park Avenue
New York, New York 10178
John P. Campbell, Esq., Of Counsel

JOYCE D. LONG, Esq.
County Attorney
Office of the Suffolk County Attorney
159 North County Complex
Veterans Memorial Highway
Hauppauge, New York 11788

WILLIAM DI CONZA, Esq.
Assistant Town Attorney
Town of Hempstead
220 Plandome Road
Manhasset, New York 11030

MICHAEL T. LANGAN, ESQ.
Assistant County Attorney
Office of the Nassau County Attorney
County Executive Building
One West Street
Mineola, New York 11501

KENNETH A. DAVIS, Esq.
Assistant Deputy Town Attorney
Town of Oyster Bay
Audrey Avenue
Oyster Bay, New York 11711

D’ AMATO, FORCHELLI, LIBERTI,
SCHWARTZ & MINEO, ESQs.
120 Mineola Boulevard
P.O. Box 31
Mineola, New York 11501
Anton J. Borovina, Esq., Of Counsel

A35

HONORABLE ANDREW J. MALONEY
UNITED STATES ATTORNEY
EASTERN DISTRICT OF NEW YORK
225 Cadman Plaza East
Brooklyn, New York 11201
Robin L. Greenwald,
Assistant U.S. Attorney

=

MISHLER, District Judge

The court having granted the plaintiffs’ motion for summary
judgment in a memorandum of decision and order dated March
22, 1988, now therefore, it is ;

ORDERED and ADJUDGED that defendants, their agents, ser-
vants, employees and anyone acting in concert with them are
hereby enjoined from dumping any dredged materials removed
from any harbor, waterway, or marina into the Long Island
Sound site known and designated as WLIS III; and it is further

ORDERED and ADJUDGED that defendants, their agents, ser-
vants and employees, and anyone acting in concert with them
are hereby enjoined and prohibited from issuing any permits or
licenses or otherwise permitting any third parties from dumping
dredged materials into the Long Island Sound site known and
designated as WLIS III; and it is further

DECLARED that the Final Environmental Impact Statement
made the basis for the decision to designate WLIS III as a site
for the disposal of dredged material fails to comply with the
National Environmental Policy Act of 1974 (‘‘NEPA’’), 42
U.S.C. § 4321 et seq. and is void and of no effect.

The court retains jurisdiction over this matter and grants
defendants the opportunity to comply with the pertinent stat-
utes and regulations and seek modification of this judgment.

Dated: Uniondale, New York
March 22, 1988

A36

/s/ ROBERT C. HEINEMANN
Clerk

by: /s/ KEITH A. JONES

Keith A. Jones
Deputy Cierk

Approved as to form

/s/ JACOB MISHLER
U.S.D.J.

A37

UNITED STATES COURT OF APPEALS
SECOND CIRCUIT

—

No. 1383, Docket 88-6095
Argued July 18, 1988 Decided Oct. 19, 1988

>

The TOWN OF HUNTINGTON, The County of Suffolk, The
County of Nassau, The Town of North Hempstead, The
Town of Oyster Bay, and Robert J. Mrazek,

Plaintiffs-Apellees.
—V.—

John O. MARSH, Jr., Secretary of the U.S. Army, Lt. Gen.
Joseph K. Bratton, Chief of the Corps of Engineers, Colo-
nel C.E. Edgar III, District Engineer, Army Corps of Engi-
neers, New England Division, and Department of the Army
Corps of Engineers of the United States of America,

Defendants-Appellants.
>

Robin L. Greenwald, Asst. U.S. Atty., Brooklyn, N.Y.
(Andrew J. Maloney, U.S. Atty., E.D.N.Y., Robert L. Beglei-
ter, Asst. U.S. Atty., of counsel), for defendants-appellants.

Joseph D. Pizzurro, New York City (John P. Campbell,
Peter K. Vigeland, Peter Sullivan, Curtis, Mallet-Provost, Colt
& Mosle, New York City, Arlene Lindsay, Daniel Martin,
Town Attys., Huntington, N.Y., of counsel), for plaintiffs-
appellees.

>

A38

Before

ALTIMARI and MAHONEY, Circuit Judges,
and CEDARBAUM, District Judge.*

*

ALTIMARI, Circuit Judge:

The Long Island Sound (the ‘*Sound’’) is host to a myriad of
recreational and industrial uses, including swimming, boating
and fishing. Recreational users, commercial fisheries and envi-
ronmentalists share a sometimes uneasy co-existence with use of
the Sound as a waste dumping ground. Marinas and harbors
which line the Sound must be dredged periodically to provide
safe berthing for pleasure craft, commercial fishing boats, and
military ships. The spoil from these dredging operations has for
decades been dumped into the Sound. This litigation arises out
of the ongoing effort of citizens and the federal government to
balance the use of the Sound as a waste dumpsite with the need
to protect its increasingly fragile waters.

The United States Army Corps of Engineers, ef a/. (the
**Corps’’) appeal from a judgment entered in the United States
District Court for the Eastern District of New York (Jacob
Mishler, Judge), denying their cross-motion for summary judg-
ment, and granting plaintiffs’ motions for summary judgment
and a permanent injunction. The district court held that a 1980
amendment to the Marine Protection, Research and Sanctu-
aries Act of 1972, 33 U.S.C. §§ 1401 ef seg. (1982) (‘‘Ocean
Dumping Act’’ or ‘‘Act’’) applies to initial designation of an
open water waste dumpsite in the Sound. The district court also
held that an environmental impact statement (‘‘EIS’’) submit-
ted by the Corps was inadequate under both the Ocean Dump-
ing Act and the National Environmental Policy Act of 1969
(NEPA), 42 U.S.C. §§ 4321 et seg. (1982 & Supp. III 1985) for
its failure to discuss fully the types, quantities and cumulative
effects of waste disposal at a new dumpsite. The district court

* The Honorable Miriam Goldman Cedarbaum, United States District
Court for the Southern District of New York, sitting by designation.

A39

enjoined the Corps from issuing dumping permits for dredged
waste disposal in the Sound until the Corps issues a supplemen-
tal EIS which fully complies with NEPA and the Ocean Dump-
ing Act.

On this appeal, the Corps contends that the Act does not
apply to designation of a new dumpsite in the Sound because
the Sound is inland not ‘‘ocean waters,’’ and because permit
applicants who were to utilize the new site were exempt from
regulation under the Act. Specifically, the Corps argues that the
Ocean Dumping Act as it relates to the Sound is triggered only
when the Corps is presented with an application concerning a
federal project or a nonfederal project of more than 25,000
cubic yards (‘‘cys’’). In all other situations, according to the
Corps, the Sound is governed by the Clean Water Act and not
by the Ocean Dumping Act. The Corps also contends that its
EIS was adequate because the Corps was required to consider
the types, quantities and cumulative effects of waste dumping
at the new site only on a case-by-case basis and not at the time
the site was chosen. Finally, the Corps asserts that the district
court erred as a matter of law when it issued an injunction pro-
hibiting the Corps from violating NEPA.

For the reasons that follow, the judgment of the district court
granting plaintiffs’ motion and denying defendants’ cross-
motion for summary judgment is affirmed. The permanent
injunction is vacated, and the case is remanded for further pro-

ceedings.

BACKGROUND

In the fall of 1980, the Corps received applications from 23
parties (the ‘‘Applicants’’) requesting permits to conduct dredg-
ing Operations on their properties in Mamaroneck, New York
and to dispose of the dredged material in an ocean dumpsite.
The Applicants were mainly owners and operators of marinas
in Mamaroneck Harbor located on the Sound. The Corps had
previously announced its intention to dredge federal waterways
in the area, and the Applicants wished to take advantage of the
presence of dredging contractors who were to perform the fed-

A40

eral maintenance operation. They hoped to reduce the expense
of their dredging operations since dredging equipment would
already be in place in the harbor. Consequently, the Applicants
initially requested to dispose of their waste material in an area
called the ‘‘Mud Dump Site’’ where the Corps was also to dis-
pose of its spoils. The Mud Dump Site, located in the Atlantic
Ocean off the New Jersey coast, has been in use as a dredge
waste dumpsite for more than seventy years and since 1960 has
received over 9.5 million cys of waste. The Corps planned to
add some 60,000-145,000 cys of waste from its Mamaroneck
Harbor project; the Applicants collectively planned to add
approximately 86,000 cys of waste, though no individual
project was to exceed 25,000 cys.

Regulations promulgated under the Ocean Dumping Act
require analysis of the types of sediments to be dredged before
permits may be issued. To satisfy this requirement, the Appli-
cants requested that the Corps accept the results of the Corps’
own federal sampling of Mamaroneck Harbor. The Corps
agreed to accept its data as representative of the Applicants’
sediments and found that sediments from Mamaroneck Harbor
would have no significant impact if disposed at the heavily used
Mud Dump Site. On March 23, 1981, the Corps issued permits
to the Applicants for the Mud Dump Site. However, because of
fiscal and time constraints, the Applicants were not able to
accomplish their dredging. As a result, on the same day that
they were issued Mud Dump Site permits, the Applicants asked
the Corps to modify the permits to allow disposal of their waste
at ‘‘the closest available site’ in the Sound.

In their modification request, the Applicants asked to be con-
sidered as a single entity in order to demonstrate the need fora ~
dumpsite in the Sound, stating that they would ‘‘ultimately
enter into a collective contract which would insure that the total
yardage to be assembled and dumped would exceed 25,000
cubic yards.’’ At the same time, they asked to be considered
individually in order to avoid the environmental testing require-
ments of the Ocean Dumping Act. The Corps issued a public
notice of the modification request and indicated that test results
from the previous Mamaroneck Harbor study would be used to
evaluate the request. The Corps granted the Applicants’

A4l

request, permitting them to dump at the Central Long Island
Sound (‘‘CLIS’’) dumpsite located off the shores of New
Haven, Connecticut.

On September 1, 1981, the Applicants again requested that
their permits be modified, :his time to allow dumping further
west in the Sound. The purpose of the modification was to gain
access to a site which would entail lower transportation costs
than the CLIS site. The Applicants, still acting collectively,
stated that the new modification might be ‘‘the difference
between the entire project going forward, being severely cut
back, or indefinitely postponed.’’ However, of the 19 histori-
cally used sites scattered throughout the Long Island Sound, 16
had been closed for environmental reasons, leaving the western
Sound without a dumpsite. In order to fulfill the modification
request, the Corps was required to designate a new dumpsite.
The Applicants suggested that there were several potential sites
which could be used, including ‘‘the triangle site bordered by
the old [closed] Stamford, Norwalk and Eatons Neck Dump
Sites.’’ The Corps adopted this suggestion, proposing to desig-
nate this site located off the shores of Huntington, New York as
Western Long Island Sound III (‘‘WLIS III’’). The Corps also
proposed to utilize the newly designated site as the repository
for spoils from additicaal federal dredging projects. In its pub-
lic notice anuouncing the proposal to designate WLIS III, the
Corps listed two ‘‘[p]lanned Federal projects which could be
served’’ by the new site. The Corps intended to dredge 530,000
cys of waste from Flushing Bay, New York and 30,000 cys from
Mianus River, Connecticut. With the addition of the 86,000 cys
from Mamaroneck Harbor, the new site from its inception was
intended to be the repository of at least 646,000 cys of dredged
waste material—well in excess of the 560,000 cys projected for
WLIS III by the Corps in its public notice.

The designation of a new dumping ground in the western
Sound is a ‘‘major Federal action’’ requiring an EIS under
NEPA. See 42 U.S.C. § 4332(2)(C). Accordingly, public hear-
ings were held in late October 1981 to discuss designation of the
new site. Predictably, those in attendance at the hearings held in
Mamaroneck and Norwalk generally were in favor of the pro-
posal, while those at the Huntington meeting generally were

A42

opposed to the site designation. On December 9, 1981, the
Corps published its intention to submit an EIS for the WLIS III
site, and issued its draft EIS (‘‘DEIS’’) nine days later.

The DEIS was written to ‘‘describe[ ] the impacts’’ of desig-
nating an open water disposal site in the western Sound. In its
discussion of the needs and objectives for the new site, the
Corps stated that the proposed site would ‘‘service the ports
and harbors within the Western Long Island Sound area’’ and
cited the 23 Mamaroneck Applicants as potential users of the
newly designated location. In its discussion of alternatives to
the proposed action, the Corps specifically considered 13 poten-
tial sites, including WLIS III. The Corps immediately elimi-
nated 11 of these sites, stating that eight sites had already been
closed for environmental reasons, two were being used as lob-
ster fisheries, and one was not viable because it was located in a
cable area used by electric utility companies. The DEIS pur-
ported to analyze the remaining open water site. WLIS III, and
the possibility of taking ‘‘no action.”’

Much of the data used in the DEIS was extrapolated from the
draft of a programmatic EIS for Long Island Sound (the
‘‘DPEIS’’). The DPEIS, undertaken several years earlier, was a
generic impact study of dredged waste disposal in the entire
Long Island Sound and was not intended to focus specifically
on any single site. The Corps incorporated the DPEIS into the
impact statement for the purpose of providing general environ-
mental data about the area surrounding WLIS III.

Citing the fact that ‘‘[t]here presently exists no chemical data
on the sediments at the [proposed] site,’’ the Corps omitted
chemical analysis of WLIS III sediments in its EIS. Evaluation
of water quality at the proposed site was also omitted, in favor
of a generalized discussion of western Sound waters taken from
the DPEIS. Analysis of specific environmental impacts of dis-
posal at WLIS III were ‘‘to be addressed on a dredging project
specific basis’’ at a later stage, when individual permit applica-
tions were evaluated. Although the DEIS indicated that there
would be a ‘‘short term release of sediment contaminants into
the water column’’ at WLIS III, the precise nature of the con-
tamination ‘would depend on the nature of the sediments’”’
which would not be known until after designation of the site.

A43

Similarly, analysis of toxicity to living organisms at the site was
deferred to the permit evaluation stage as was analysis of chem-
ical contamination to the floor of the WLIS III site.

The Corps solicited comments regarding the DEIS from rele-
vant federal, state and local environmental agencies, and inter-
ested private citizens. Comments critical of the DEIJS included
letters from the Department of Commerce Office of Marine
Pollution Assessment, the Fish and Wildlife Service, the Town
of Huntington and numerous others. The Department of the
Interior Office of Environmental Project Review complained of
the lack of ‘‘critical analysis of alternatives’’ in the DEIS, stat-
ing that the majority of alternatives presented ‘‘appear[ed] to
be ‘straw men’ ’”’ since most had either been closed or were
committed to other uses. The Suffolk County Executive and the
Long Island Sound Taskforce complained that the DEIS failed
adequately to detail likely users of the new site. Most of the
additional criticism received by the Corps was directed at the
apparent haste with which the draft was prepared, lack of data
on the types and quantities of material to be disposed of, lack
of analysis of the cumulative effects of disposal at WLIS III,
and lack of data specific to the WLIS III site.

A final EIS (‘‘FEIS’’) was issued on February 12, 1982 sub-
stantially unchanged from the DEIS. In response to the critical
comments received, the FEIS listed 24 federally authorized
channels in the western Long Island Sound which ‘‘could
potentially utilize the WLIS III disposal site.’’ These channels
included Mamaroneck Harbor, and were in addition to the
Applicants’ dredging projects. The Corps reiterated that the
types, quantities and cumulative effects of disposal would be
analyzed on a case-by-case basis during review of permit appli-
cations. Thus, sediments from the 23 harbors other than
Mamaroneck were not evaluated for their effects on WLIS III.

DISCUSSION

The Corps principally contends on this appeal that NEPA
requires only that an agency follow certain specified procedures
in reaching its decision. The Corps maintains that the statute’s

A44

requirements are fulfilled when an agency’s conclusions in the
EIS have a substantial basis in fact and the EIS considers rea-
sonable opposing views. The Corps also contends that the dis-
trict court’s issuance of a permanent injunction was erroneous
as a matter of law.

A. Applicability of the Ocean Dumping Act

The opposing parties in the instant case rely heavily on regu-
lations promulgated under the Ocean Dumping Act in arriving
at their positions. We review the question of whether the Act
applies to designation of a new disposal site in the Sound by
~ bearing in mind that an agency is entitled to deference regarding
interpretation of regulations it participated in formulating and
is charged with administering. Bersani v. Robichaud, 850 F.2d
36, 45 (2d Cir. 1988) and cases cited therein; National Wildlife
Federation v. Benn, 491 F.Supp. 1234, 1245 (S.D.N. Y.1980).
This Court, however, will affirm the decision of the district
court if we concur in its finding that the Corps’ action was
‘arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.’’ 5 U.S.C. § 706(2)(A); see Bersani,
850 F.2d at 46.

1. Legislative history

Recognizing the dangers of unregulated dumping of waste
materials into ocean waters, Congress in 1972 enacted the
Ocean Dumping Act, 33 U.S.C. §§ 1401 et seq. (1982). Under
the Ocean Dumping Act, the Secretary of the Army, through
the United States Army-Corps-of Engineers, shares responsibil-
ity with the Administrator of the Environmental Protection
Agency (‘‘EPA’’) for implementing federal environmental poli- -
cies and goals with regard to ocean dumping. The Corps is
given responsibility, with oversight from the EPA, for issuing
permits for transportation and disposal of dredged wastes into
the ocean. 33 U.S.C. § 1413.

Congress amended the Ocean Dumping Act in 1980 to
require that dumping of dredged material in Long Island Sound
by federal agencies, or by private parties whose projects exceed
25,000 cys of waste, be subject to the environmental testing cri-

A45

teria of the Act. 33 U.S.C. § 1416(f). These criteria establish
strict standards for determining whether and where dredged
wastes may be disposed in the ocean and are more stringent
than those promulgated under the Federal Water Pollution
Control Act, 33 U.S.C. §§ 1251 et seq. (1982 & Supp. III 1985)
(the ‘‘Clean Water Act’’), which regulates the Corps’ dredged
waste permit program for inland waters. Thus, the 1980 amend-
ment subjects the Sound to two qualitatively different regula-
tory schemes.

The 1980 amendment to the Ocean Dumping Act reads in
pertinent part:

the dumping of dredged material in Long Island Sound
from any Federal project (or pursuant to Federal authori-
zation) or from a dredging project by a non-Federal appli-
cant exceeding 25,000 cubic yards shall comply with the
criteria established pursuant to the second sentence of sec-
tion 1412(a) of this title relating to the effects of dumping.

33 U.S.C. § 1416(f). The bill was proposed in order to ‘‘amend
existing law to consider the Long Island Sound as ocean waters
for the purpose of ocean dumping regulation.’’ H.R.Rep. No.
894, Part 1, 96th Cong., 2d Sess. 2 (1980) U.S.Code Cong. &
Admin. News p. 2572 (emphasis added). Congress declined to
recharacterize the Sound as ‘‘ocean waters’’ in the definitional
sense, choosing instead to focus on the permit evaluation pro-
cess as a means of applying Ocean Dumping criteria.

An interim proposal provided that ‘‘any permit issued under
section 404 of the Clean Water Act’’ for dredged waste disposal
in the Sound be subject to the testing criteria of the Ocean
Dumping Act. 126 Cong. Rec. H31919 (Dec. 3, 1980). How-
ever, this version led to concerns that marina owners ‘‘engaged
in small dredging projects’? would be unduly burdened by ‘‘an
unrealistically costly set of testing standards.’’ 126 Cong.Rec.
H34063 (Dec. 13, 1980) (remarks of Rep. Studds). The final
version of the bill thus provided that ‘‘small marine owners
dumping less than [25,000] cubic yards would be exempt”’ from
the testing requirements of the Ocean Dumping Act. 126 Cong.
Rec. $33788 (Dec. 12, 1980) (remarks of Sen. Moynihan).

A46

The exemption notwithstanding. Congress intended that ‘‘the
bulk’’ of dredged waste dumping be subject to the ocean dump-
ing criteria. In enacting the bill, Congress noted that federal
projects and private operations exceeding 25,000 cys comprised
**94 percent of all dredged material dumped in the sound.’’ 126
Cong. Rec. H34063 (Dec. 13, 1980) (remarks of Rep. Ambro).
Private dredging operations consisting of less than 25,000 cys
would ‘‘still be subject to the Clean Water Act criteria.’’ Jd.
The amendment obviously was intended to strengthen permit
evaluation procedures regarding dredged waste disposal in the
Sound. However, an ambiguity exists whether designation of a
new site is encompassed by the amendment. We think the
answer lies in the regulatory scheme for permit evaluations.

2. Permit evaluation procedures

Under both the Clean Water Act and the Ocean Dumping
Act, site designation is part of the permit evaluation process.
See National Wildlife Federation v. Costle, 629 F.2d 118, 127
(D.C.Cir. 1980) (Corps’ designation of dumpsite is exercise of
its permit licensing authority). The Clean Water Act’s permit
review regulations, 33 C.F.R. § 323.6(a), require the Corps to
‘review applications for permits for the discharge of dredged
or fill material. . . in accordance with guidelines promulgated
by the Administrator [of the] EPA,’’ and refer the Corps to
EPA site designation regulations, 40 C.F.R. Part 230. Simi-
larly, the Ocean Dumping Act regulations, 33 C.F.R. § 324.1,
set forth procedures to be followed by the Corps ‘‘in connection
with the review of applications for ocean dumping permits’’ at
dumping sites designated under 40 C.F.R. Part 228.

The Corps contends that 40 C.F.R. Part 228 applies only to
the evaluation of permits and not to designation of a new site.
We think the Corp reads the regulations too narrowly. Section
228.4(e)(2), titled ‘‘Dredged Material Permits’’, clearly envi-
sions situations ‘‘where a recommended disposal site has not
been designated by the Administrator, or where it is not feasible
to utilize a recommended disposal site that has been designated
by the Administrator.’’ In those situations, Section 228.4(e)(2)
provides that the Corps ‘‘shall, in consultation with EPA, select

A47

a site’’ in accordance with specific criteria for site selection
promulgated by the EPA. (emphasis added). When the Appli-
cants requested permits for a site in the western Sound, the
Corps was presented with a situation in which it was ‘‘not feasi-
ble to utilize a recommended disposal site.’” As the Corps indi-
cated in its public notice on the newly proposed site,
designation of WLIS III was undertaken in order to provide the
Applicants with a less costly disposal site as well as to provide
for the Flushing Bay and Mianus River federal projects.

Congress was emphatic that the Ocean Dumping Act was not
intended to permit large private dredgers ‘‘to evade additional
testing requirements by breaking an integral project involving
more than 25,000 cubic yards into smaller pieces.’’ 126 Cong.
Rec. 34063 (Dec. 13, 1980) (remarks of Rep. Ambro).
Although the Applicants clearly considered themselves to be a
unit for purposes of obtaining permission to dump in the
Sound, they wanted to be treated separately in order to avoid
‘‘costly sampling and testing such as bio-assay sampling’’
required by the ocean dumping criteria. By entering into a ‘‘col-
lective contract,’’ the Applicants sought to gain the economic
benefits of a large dredging project while evading the testing
requirements of the Act.

We have serious doubts as to whether the Corps should have
considered the Applicants separately given that the total yard-
age of waste collected among them would exceed 25,000 cys.
The Corps has simply done for the Applicants what the Appli-
cants are not permitted to do for themselves, i.e., evade the
ocean dumping criteria for projects in excess of 25,000 cys.

Even assuming that the Applicants were entitled to be treated
separately and thus were exempt under the Act, the Corps’ own
plans to dredge 560,000 cys of waste from Flushing Bay and
Mianus River were not exempt, nor were the remaining feder-
ally authorized harbor projects listed in the FEIS. There is no
question that federal projects are covered by the 1980 amend-
ment and not by the standards of the Clean Water Act. We
therefore agree with Judge Mishler that the Ocean Dumping
Act applies to the designation of WLIS III.

A48

B. Sufficiency of the EIS

We turn now to the question of whether the EIS submitted by
the Corps satisfied the rigorous requirements of the Act.

The sufficiency of an EIS is determined according to the
‘‘rule of reason,’’ under which the EIS will be upheld as ade-
quate if it has been

compiled in good faith and sets forth sufficient informa-
tion to enable the decision-maker to consider fully the
environmental factors involved and to make a reasoned
decision after balancing the risks of harm. . . against the
benefits to be derived from the proposed action, as well as
to make a reasoned choice between alternatives.

County of Suffolk v. Secretary of Interior, 562 F.2d 1368, 1375
(2d Cir.1977), cert. denied, 434 U.S. 1064, 98 S.Ct. 1238, 55
L.Ed.2d 764 (1978). This Court of course is ‘‘in as good a posi-
tion as the district court to determine on the undisputed facts
what could reasonably be required of the EIS in issue.’’ Jd.
(citations omitted).

After reviewing the voluminous submissions, including the
FEIS, DEIS, DPEIS and their various appendices, we conclude
that the EIS submitted by the Corps did not adequately analyze
the types, quantities and cumulative effects of spoil to be
dumped at WLIS III. Although data from an earlier federal
survey of the Mamaroneck Harbor was included in the EIS,
that data was insufficient to permit an informed site designa-
tion decision by the Corps. The vast bulk of material, 560,000
cys of waste from Flushing Bay and Mianus River, was not ana-
lyzed in the study. While we agree with the Corps that it was not
required to engage in a ‘‘crystal ball inquiry”’ into all possible
future permit applications for purposes of a site designation
study, see Vermont Yankee Nuclear Power Corp. v. Natural
Resources Defense Council, Inc., 435 U.S. 519, 551, 98 S.Ct.
1197, 1215, 55 L.Ed.2d 460 (1978) (EIS is not defective simply
because agency fails to ‘‘ferret out every possible alternative’’);
County of Suffolk, 562 F.2d at 1378 (EIS need not include mere
speculation as to future events), the possibility that the WLIS
III site would be utilized by two federal projects involving

A49

560,000 cys of waste was certainly foreseeable. The Corps’ pub-
lic notice announcing hearings on the designation of WLIS III
listed the Flushing Bay and Mianus River projects as ‘‘Planned
Corps of Engineer Maintenance Dredging’’ projects. Neverthe-
less, there was no mention at all of the Flushing Bay project in
the final EIS. Morever, 23 of the 24 harbor projects that were
mentioned did not include any data on the types or quantities of
their sediments. The sole exception was Mamaroneck Habor,
for which data was available from an earlier survey.

The Ocean Dumping Act by its terms contemplates that pro-
jects of the magnitude of the Flushing Bay dredging operation
be carefully analyzed when making site designation decisions.
The dumping permit program for dredged material, 33 U.S.C.
§§ 1413(a) and (b), requires the Corps to determine appropriate
locations for dumping in accordance with the criteria set forth
in 33 U.S.C. § 1412(a), including the effect of dumping ‘‘par-
ticular volumes and concentrations’’ of material, and the ‘‘per-
sistence and permanence’”’ of the effects of dumping. 33 U.S.C.
§ 1412(a)(E) and (F). While Section 1412 of the Ocean Dump-
ing Act outlines the broad parameters of the necessary environ-
mental factors to be considered, it is Section 228.6 of the EPA’s
site designation guidelines which indicates the requisite specific-
ity of the environmental analysis to be undertaken. Those regu-
lations, captioned ‘‘Specific criteria for site selection,’’ require
consideration of ‘‘[t]ypes and quantities of wastes proposed to
be disposed of’’ and ‘‘[e]xistence and effects of current and pre-
vious discharges and dumping in the area (including cumulative
effects).”’ 40 C.F.R. § 228.6(a)(4) and (7). Finally, Section
228.6(b) of the EPA site designation guidelines states that this
detailed analysis ‘‘will be used in the preparation of an environ-
mental impact statement for each site where such a statement is
required by EPA policy.’’ Thus, the Corps’ decision to prepare
an EIS for designation of WLIS III triggered applicability of
the full panoply of Ocean Dumping Act criteria, and these crite-
ria should have been considered in formulating the EIS.

AS5S0

C. NEPA

An EIS required under NEPA must assess any adverse effects
of a proposed action, alternatives to the proposal, the relation-
ship between short-term use and long-term productivity of the
affected environment, and any irreversible and irretrievable
commitments of resources which would be involved in the
implementation of the proposal. 42 U.S.C. § 4332(2)(C) (1982).
The purpose of an EIS is to ‘‘compel the decision-maker to give
serious weight to environmental factors’’ in making choices,
and to enable the public to ‘‘understand and consider meaning-
fully the factors involved.’’ County of Suffolk, 562 F.2d at
1375 (citing Sierra Club v. Morton, 510 F.2d 813, 819 (Sth
Cir.1975)). See City of New York v. U.S. Dep’t of Transp., 715
F.2d 732, 747-48 (2d Cir.1983), cert. denied, 465 U.S. 1055, 104
S.Ct. 1403, 79 L.Ed.2d 730 (1984) (NEPA is designed to infuse
environmental considerations into government decisionmak-
ing).

The Council on Environmental Quality (‘“CEQ’’) guidelines
promulgated under NEPA, 40 C.F.R. Part 1502 (1987), state
that the primary purpose of an EIS is to serve as an ‘‘action.
forcing device to insure that the policies and goals’’ of NEPA
are ‘‘infused into the ongoing programs and actions of the Fed-
eral Government.’’ Jd. § 1502.1. The objective criteria by
which this Court will evaluate the Corps’ EIS are discussed
extensively in Natural Resources Defense Council, Inc. v. Cal-

____—__——faway, 524 F.24-79,88-89 (2d -Cir.197-5). That case is strikingly
similar to the instant case in that the Cal/away decision involved
a challenge to an EIS allegedly deficient in its discussion of the
types, quantities and cumulative effects of dredged waste dis-
posal projects in the Long Island Sound. There the plaintiff
claimed that several projects were pending while the EIS was
being prepared by the U.S. Navy and that those projects were
sufficiently foreseeable to have been included in the statement.
This Court held in Callaway that the EIS failed to meet NEPA’s
standard of comprehensive evaluation, citing the CEQ guide-
lines for preparation of an EIS. Jd. at 89. We so hold here.

The fundamental flaw in the Corps’ EIS is its too-
circumscribed view of the ‘‘project’’ which is the subject of its

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impact analysis. The Corps conceives of its ‘‘project’’ as the
designation of a disposal site. It has rigidly adhered to the posi-
tion that site designation and permit issuance are two distinct
and unrelated actions. It has steadfastly maintained that partic-
ularized discussion of types, quantities and cumulative effects
of dredged wastes to be deposited at WLIS III is outside the
scope of the EIS and must await analysis on a case-by-case
basis. We disagree. This is merely a variant of ‘‘segmentation’”’
which has been uniformly rejected by courts. ‘‘Segmentation”’
or ‘‘piecemealing’’ occurs when an action is divided into com-
ponent parts, each involving action with less significant envi-
ronmental effects. See City of West Chicago v. United States
Nuclear Regulatory Comm’n, 701 F.2d 632, 650 (7th Cir.
1983). Segmentation is to be avoided in order to ‘‘insure that
interrelated projects[,] the overall effect of which is environ-
mentally significant, not be fractionalized into smaller, less sig-
nificant actions.’’ Taxpayers Watchdog, Inc. v. Stanley, 819
F.2d 294, 298 (D.C. Cir. 1987).

CEQ guidelines provide that proposals should be included in
the same EIS if they are ‘‘connected,”’ that is, if they are
‘*closely related’’ such that they are ‘‘interdependent parts of a
larger action and depend on the larger action for their justifica-
tion.’” 40 C.F.R. § 1508.25(a)(1)(iili). See Save the YAAK
Comm. v. Block, 840 F.2d 714, 719 (9th Cir. 1988) (analyzing
CEQ guidelines on ‘‘connected’’ projects); Hudson River Sloop
Clearwater, Inc. v. Dep’t of Navy, 836 F.2d 760, 763 (2d Cir.
1988) (per curiam) (same). The proper test to determine related-
ness under 40 C.F.R. § 1508.25(a)(1)(iii) is whether the project
has independent utility. Sloop Clearwater, 836 F.2d at 764 (cit-
ing Fritiofson v. Alexander, 772 F.2d 1225, 1242 (Sth Cir.
1985)). The designation of WLIS III clearly has no utility apart
from its planned usage as a disposal site. Designation of a site
to contain a contemplated load of 646,000 cys of waste material
surely was related to the then-pending applications to dump the
remaining 86,000 cys and the Corps’ own plans to dump the
remaining 560,000 cys. It is simply untenable to view site desig-
nation as distinct from issuing permits to use the site. We there-
fore agree with the district court that the Corps violated NEPA

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by not including a particularized discussion of the types and
quantities of sediments to be dumped at WLIS III.

Moreover, it is well settled that the cumulative effects of a
proposed federal action must be analyzed in an EIS. The
Supreme Court in Kleppe v. Sierra Club has stated:

when several proposals for . . . actions that will have a
cumulative or synergistic environmental impact upon a
region are pending concurrently before an agency, their
environmental consequences must be considered together.

427 U.S. 390, 410, 96 S.Ct. 2718, 2730, 49 L.Ed.2d 576 (1976).
The genesis of

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0610%3A1. Public record. Not legal advice.