Simmons v. U.S. Army Corps of Engineers, 97-1131

• Decision Date: 14 July 1997
• Docket Number: No. 97-1131,97-1131
• Citation: 120 F.3d 664
• Parties: , 27 Envtl. L. Rep. 21,204 Bill Edward SIMMONS, Maxine Dorothy Simmons, Steven J. Shaffner, Kathleen R. Shaffner, Laurel P. Touissant, Thomas Bik and Martha Crothers, Plaintiffs-Appellants, v. UNITED STATES ARMY CORPS OF ENGINEERS, Togo West, Secretary of the Army, Maj. Gen. Patrick Stevens, Chief of Engineers, U.S. Army Corps of Engineers, Ralph Greico, Commander and District Engineer, U.S. Army Corps of Engineers, and The City of Marion, Illinois, Robert Butler, Mayor, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 664

120 F.3d 664

45 ERC 1306, 27 Envtl. L. Rep. 21,204

Bill Edward SIMMONS, Maxine Dorothy Simmons, Steven J Shaffner, Kathleen R. Shaffner, Laurel P Touissant, Thomas Bik and Martha Crothers, Plaintiffs-Appellants, v. UNITED STATES ARMY CORPS OF ENGINEERS, Togo West, Secretary of the Army, Maj. Gen. Patrick Stevens, Chief of Engineers U.S. Army Corps of Engineers, Ralph Greico, Commander and District Engineer, U.S. Army Corps of Engineers, and The City of Marion, Illinois, Robert Butler, Mayor, Defendants-Appellees.

No. 97-1131.

United States Court of Appeals, Seventh Circuit.

Argued June 2, 1997.

Decided July 14, 1997.

Mark A. Brittingham (argued), Patrick K. Ryan, Casserly, Jones & Brittingham, St. Louis, MO, for Plaintiffs-Appellants.

William E. Coonan (argued), Office of the United States Attorney, Civil Division, Fairview Heights, IL, for United States Army Corps of Engineers, Togo West, Patrick Stevens, Ralph Grieco, Defendants-Appellees.

Thomas W. Alvey, Jr., Stephen G. Jeffery (argued), Ann C. Barron, Thompson Coburn, Belleville, IL, for City of Marion, Il, Defendant-Appellee.

Albert F. Ettinger, Freeman, Freeman & Salzman, Chicago, Il, for Amicus Curiae.

Before BAUER, CUDAHY and KANNE, Circuit Judges.

CUDAHY, Circuit Judge.

Eight years have elapsed since the City of Marion, Illinois, first proposed building a new water reservoir in the southernmost tip of Illinois. In those eight years a tale has unfolded that is all too familiar. Lawsuits have stopped the project short; the case has visited the district court twice; and Marion still is no closer to a new water supply. As is routine in American administrative law, the litigation has little to do with what anybody really cares about. One side wants a dam built and a new lake created, and the other does not. Instead, the dispute, now in and out of federal court for five years, has centered on procedures--whether the U.S. Army Corps of Engineers fulfilled its procedural obligations under federal environmental law. All this is true. But the case provides a textbook vindication of the wisdom of Congress in insisting that agencies follow those procedures in the first place.

I.

With passage of the National Environmental Policy Act, Pub.L. 91-190, Jan. 1, 1970, 83 Stat. 852, codified at 42 U.S.C. § 4321 et seq., Congress established the nation's central and unique environmental policy for (self-)regulating the federal government. Although policymakers and courts have cooked up enough acronyms under NEPA for a feast of officialese, the thrust of NEPA is simply expressed. For all "major Federal actions significantly affecting the quality of the human environment," 42 U.S.C. § 4332(2)(C), federal agencies must articulate why they have settled upon a particular plan and what environmental harms (or benefits) their choice entails.

NEPA mandates a searching inquiry into alternatives, but says nothing about which to choose. It binds federal officials to justify their plans in public, after a full airing of alternatives. It thus blends a faith in technocratic expertise with a trust in democracy. Officials must think through the consequences of-and alternatives to--their contemplated acts; and citizens get a chance to hear and consider the rationales the officials offer. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 1845, 104 L.Ed.2d 351 (1989). But, if a federal agency has heard all the objections to a plan and considered all the sensible options before it, the agency has fulfilled its duty. Robertson, 490 U.S. at 350, 109 S.Ct. at 1846.

When a federal agency prepares an Environmental Impact Statement (EIS), it must consider "all reasonable alternatives" in depth. 40 C.F.R. § 1502.14. No decision is more important than delimiting what these "reasonable alternatives" are. That choice, and the ensuing analysis, forms "the heart of the environmental impact statement." 40 C.F.R. § 1502.14. To make that decision, the first thing an agency must define is the project's purpose. See Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 195-96 (D.C.Cir.1991). The broader the purpose, the wider the range of alternatives; and vice versa. The "purpose" of a project is a slippery concept, susceptible of no hard-and-fast definition. One obvious way for an agency to slip past the strictures of NEPA is to contrive a purpose so slender as to define competing "reasonable alternatives" out of consideration (and even out of existence). The federal courts cannot condone an agency's frustration of Congressional will. If the agency constricts the definition of the project's purpose and thereby excludes what truly are reasonable alternatives, the EIS cannot fulfill its role. Nor can the agency satisfy the Act. 42 U.S.C. § 4332(2)(E).

We are confronted here with an example of this defining-away of alternatives. In 1989, the City of Marion applied to the U.S. Army Corps of Engineers (the Corps) for permission to build a dam and reservoir, as required by § 404 of the Clean Water Act, 33 U.S.C. § 1344. The dam would block up Sugar Creek, a free-flowing stream in southern Illinois running seven miles southeast of Marion. Marion envisioned that the resulting Sugar Creek Lake would supply water not just to Marion, but to the Lake of Egypt Water District, which encompasses six counties and 15,000 rural customers. Sugar Creek Lake would drown a substantial area, with the usual environmental effects of drowning, including the transformation or obliteration of the riverine habitats of several species.

We discuss the details of the project's history below, but the case boils down to no more than those bare facts. From the beginning, Marion and the Corps have defined the project's purpose as supplying two users (Marion and the Water District) from a single source--namely, a new lake. Accordingly, when the Corps prepared an environmental impact statement, it confined the analysis to single-source alternatives. And therein lies the difficulty. At no time has the Corps studied whether this single-source idea is the best one--or even a good one. Marion and the Lake of Egypt Water District share a common problem, a thirst for water. From this fact the Corps adduces the imperative for a common solution. We disagree. A single source may well be the best solution to the putative water shortages of Marion and the Lake of Egypt Water District. The Corps' error is in accepting this parameter as a given. To conclude that a common problem necessarily demands a common solution defies common sense. We conclude that the U.S. Army Corps of Engineers defined an impermissibly narrow purpose for the contemplated project. The Corps therefore failed to examine the full range of reasonable alternatives and vitiated the EIS. We reverse.

II.

The City of Marion and the Lake of Egypt Water District both want more water. Since the 1920s, the City of Marion has drawn the bulk of its water from the man-made Marion City Lake. Marion's thirst for water has long since outstripped Marion City Lake's capacity of 1.1 million gallons per day, and Marion has had to go elsewhere for an additional 600,000 gallons per day. (The parties have not told us how or where.) Marion City Lake is a poor reservoir, to boot; its raw water requires costly chemical treatment to render it potable. Marion contends that a new reservoir--in particular, the proposed Sugar Creek Lake--would slake the City's thirst. The Lake of Egypt Water District, too, argues that it needs a new source of water. The Water District gets its water from the Lake of Egypt, another reservoir of marginal quality. The Water District turns out not to own the namesake lake, but instead must buy the water from an electric co-op, which does own the Lake of Egypt, and which limits diversion of the Lake's water.

Marion proposed to solve both problems in one stroke. A new reservoir was in order, and Marion thought a dam over Sugar Creek would work best. The dam would lie at the head of a valley about seven miles southeast of Marion. The new Sugar Creek Lake would be 2500 feet wide and 20,000 feet long, and would generate 8.9 million gallons per day of raw water. A 20-inch diameter pipeline would run the water to Marion. The Lake of Egypt Water District would then buy some of that water from Marion.

Then the federal government got involved. Sugar Creek falls under federal jurisdiction as one of the navigable waters of the United States. Section § 404 of the Clean Water Act, 33 U.S.C. § 1344, obliges anyone who would discharge "dredged or fill material into the navigable waters" to obtain a permit from the U.S. Army Corps of Engineers. 33 U.S.C. § 1344. A dam across Sugar Creek would require such a permit, see Van Abbema v. Fornell, 807 F.2d 633, 636 (7th Cir.1986) (noting that construction projects over navigable waters need a Corps permit), and in 1989, Marion sought the Corps' approval. The need for Corps approval makes the proposed dam a kind of federal action, and thus NEPA was invoked.

In 1991 the Corps completed a preliminary study of the proposed dam, termed an "environmental assessment" in the argot of NEPA. If a federal project has no "significant impact" on the environment, there is no need to go forward with a much deeper study--the EIS (environmental impact statement). In its environmental assessment, the Corps concluded that the four-mile long, half-mile wide Sugar Creek Lake, which would flood a square mile-and-a-half of wetlands, woods, fields and farms and would block up "one of the last free-flowing streams in southern Illinois"--the Corps' own words--would have no "significant impact" on the environment. A group of plaintiffs (affected landowners plus the Sierra Club) filed suit in the Southern District of Illinois, claiming that the Corps' determination was arbitrary and capricious and that NEPA obliged the Corps to prepare an environmental impact statement. On this first round through the Southern...