473 F.2d 346 (8th Cir. 1972), 72-1427, Environmental Defense Fund, Inc. v. Froehlke

Docket Nº:72-1427.
Citation:473 F.2d 346
Party Name:ENVIRONMENTAL DEFENSE FUND, INC., et al., Appellants, v. Robert F. FROEHLKE, Secretary of the Army, et al., Appellees.
Case Date:December 14, 1972
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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473 F.2d 346 (8th Cir. 1972)

ENVIRONMENTAL DEFENSE FUND, INC., et al., Appellants,

v.

Robert F. FROEHLKE, Secretary of the Army, et al., Appellees.

No. 72-1427.

United States Court of Appeals, Eighth Circuit.

December 14, 1972

Submitted Oct. 18, 1972.

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Richard S. Arnold, Texarkana, Ark., for appellants.

Glen R. Goodsell, Atty., Dept. of Justice, Washington, D. C., for appellees.

G. D. Walker, Jonesboro, Ark., for intervenor.

Before HEANEY and STEPHENSON, Circuit Judges, and BOGUE, [*] District Judge.

HEANEY, Circuit Judge.

The primary question raised on this appeal is whether an environmental impact statement, filed by the Corps of

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Engineers in connection with the Cache River-Bayou DeView Channelization Project, complied with the National Environmental Policy Act of 1969. 1 Secondary questions are whether the project violates the Water Bank Act of 1970, 2 the Fish and Wildlife Coordination Act, 3 or 33 U.S.C. § 701a. The trial court answered the first question in the affirmative and the latter questions in the negative. We reverse and remand.

FACTS

The Cache River Basin comprises 2,030 square miles of bottom lands in northern Arkansas and southern Missouri. The predominate economic activity in the area is agriculture, but the basin contains prime habitat for game, fish and wildlife, thousands of acres of hardwood bottom lands and other swamp lands having rare natural aesthetic quality. Severe floods have occurred in the basin since 1916 causing millions of dollars of damage to farms and urban areas.

By the Flood Control Act of 1950, 4 Congress authorized construction of the project. Planning funds were regularly appropriated from 1963 to 1971. In July, 1969, a general design for the project was completed. It called for clearing, realigning, enlarging, and rechanneling approximately one hundred forty miles of the Cache River upstream from its junction with the White River, fifteen miles of its upper tributaries, and seventy-seven miles of its principal tributary-the Bayou DeView, for flood control and drainage purposes. The project was estimated to cost the federal government forty-three million dollars.

In 1971, specific plans were completed for the first phase of the project. In July of that year, a contract was let to clear and excavate 6.7 miles of the lower Cache River to relieve backwater flooding. Two million dollars for this phase of construction was appropriated for fiscal 1972 and 1973. 5

On December 7, 1970, the Corps of Engineers filed a final environmental impact statement with respect to the project.

On September 24, 1971, a draft environmental statement was filed by the Corps. This statement discussed a "mitigation plan" to purchase thirty thousand acres of land in the basin to mitigate the wildlife losses.

On October 6, 1971, the plaintiffs filed an action seeking to halt construction of the project. Construction was voluntarily postponed by the Corps to permit the trial court to consider the matter.

On May 12, 1972, the trial court filed a final judgment in favor of the defendants. Construction was undertaken immediately.

ADEQUACY OF THE FINAL ENVIRONMENTAL IMPACT STATEMENT

Section 102(C) of NEPA requires the Corps to "[i]nclude in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement" which discusses the impact of the action on the environment.

The final impact statement, filed on December 7, 1970, is not sufficiently detailed to meet the standards of the Act. It is too vague, too general and too conclusionary. Thus, it cannot form a basis for responsible evaluation and criticism.

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The statement does not meet the guidelines laid down by the Council on Environmental Quality or the Corps itself. 6

The most significant failure of the December 7 impact statement is its unsatisfactory discussion of alternatives to channelizing the Cache River. Section 102(C)(iii) of NEPA specifically requires that the impact statement discuss "[a]lternatives to the proposed action."

In this case, a number of alternatives to the proposed project have been suggested by responsible critics, including state and federal agencies and private groups and individuals. These alternatives include (1) acquisition of public lands to mitigate the loss of public access to forest and wildlife resources, 7 (2) flood plain zoning, 8 (3) crop insurance, 9 (4) outright purchase of the fee title to or a flowage easement over the lands in the flood plain, 10 and (5) four plans consisting of various combinations of diversions, floodways, reservoirs, interceptor ditches and levees. 11

While some of these alternatives were mentioned in the impact statement and others set forth by including letters received by those who had suggested them, none were discussed in detail by the Corps.

This treatment of alternatives is insufficient. Section 102(G) of NEPA states that the Corps should "[ i] nitiate and utilize ecological information in the planning and development of resourceoriented

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projects." And § 102(D) of NEPA mandates that the Corps:

"Study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources;"

The guidelines of the CEQ state that the impact statement should include:

"* * * A rigorous exploration and objective evaluation of alternative actions that might avoid some or all of the adverse environmental effects is essential. * * *"

Statements on Proposed Federal Actions Affecting the Environment: Interim Guidelines § 7(a)(iii), 35 Fed.Reg. 7390, et seq., April 30, 1970. Accord, Statements on Proposed Federal Actions Affecting the Environment: Guidelines§ 6(a)(iv), 36 Fed.Reg. 7724, et seq., April 23, 1971. And the Corps own guidelines stated that the statement should

"* * * Discuss the unavoidable adverse effects and the implications thereof, and identify the abatement or mitigation measures proposed to rectify these and the extent of their effectiveness. * * *"

EC 1120-2-56 App. B § 5(d), September 25, 1970.

Furthermore,

"[t]he legislative history suggests that the Congress * * * expect[ed] the 102 statement to record the agency's tradeoffs of competing values. In explaining the bill on the Senate floor, Senator Jackson said:

"'Subsection 102(c) (now 102(2)(C)) establishes a procedure designed to insure that in instances where a proposed major Federal action would have a significant impact on the environment that the impact has in fact been considered, that any adverse effects which cannot be avoided are justified by some other stated consideration of national policy, that short-term uses are consistent with long-term productivity, and that any irreversible and irretrievable commitments of resources are warranted.' [115 Cong.Rec. 29055 (October 8, 1969)]" (Emphasis included.)

Council on Environmental, Quality, Environmental Quality 245 (1972).

To fulfill these mandates, the impact statement should not just list the alternatives to the proposed project but it should also include the results of the Corps' own investigation and evaluation of alternatives so that the reasons for the choice of a course of action are clear.

The Corps argues that despite these omissions, its impact statement should be considered sufficient because "at every step of the way, from preauthorization studies through detailed project planning, which includes recent environmental and mitigation studies, the voices of fish and wildlife interests have been heard, considered and reported to Congress." We disagree. Nothing less than a complete impact statement can serve the important purposes of § 102(C)(iii) of NEPA. As the District of Columbia Circuit Court stated in Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827, 834 (D.C.Cir. 1972), "it is the essence and thrust of NEPA that the pertinent Statement serve to gather in one place a discussion of the relative environmental impact of alternatives." Section 102(C) of NEPA requires that copies of the statement "shall be made available to the President, the Council on Environmental Quality and to the public * * * and shall accompany the proposal through the existing agency review processes." A statement which includes a detailed discussion of all reasonable alternatives to a proposed project and their effects, see, Natural Resources Defense Council, Inc. v. Morton, supra at 834, insures that agency officials will be acquainted with the tradeoffs which will have to be made if any particular line of action is chosen. A complete impact study is an

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integral part of the "careful and informed decision-making process." See, Calvert Cliffs Coord. Com. v. United States A.E. Com'n, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1115 (1971).

The complete impact statement must contain more than a catalog of environmental facts, however. The agency must also "explicate fully its course of inquiry, its analysis and its reasoning." Ely v. Velde, 451 F.2d 1130, 1139 (4th Cir. 1971). Thus, the complete formal impact statement represents an accessible means for opening up the agency decision-making process and subjecting it to critical evaluation by those outside the agency, including the public.

Finally, the formal impact statement supplies a convenient record for courts to use in reviewing agency decisions on the merits to determine if they are in accord with the substantive policies of NEPA. To hold that the piecemeal presentation of environmental views to Congress over a period of...

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