532 F.Supp. 1222 (S.D.Tex. 1982), Civ. A. G-81-142, Sierra Club v. Sigler

Docket Nº:Civ. A. G-81-142
Citation:532 F.Supp. 1222
Party Name:Sierra Club v. Sigler
Case Date:February 03, 1982
Court:United States District Courts, 5th Circuit, Southern District of Texas
 
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532 F.Supp. 1222 (S.D.Tex. 1982)

SIERRA CLUB, et al., Plaintiffs,

v.

James M. SIGLER, et al., Defendants.

Civ. A. No. G-81-142.

United States District Court, S.D. Texas

Feb. 3, 1982

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Frederick S. Middleton, III, Washington, D. C., James T. B. Tripp, New York City, Adrian L. Young, Galveston, Tex., for plaintiffs.

Margaret Strand and Pauline H. Milius, Dept. of Justice, Washington, D. C., for federal defendants.

Charles T. Newton, Jr., and Charles L. Berry, Vinson & Elkins, Houston, Tex., for defendant Pelican Terminal Co.

Benjamin R. Powel, McLeod, Alexander, Powel & Apffel, Galveston, Tex., for defendant City of Galveston.

MEMORANDUM AND ORDER

HUGH GIBSON, District Judge.

The Sierra Club, vanguard of a coalition of environmentally concerned non-profit corporations, 1 brought suit to challenge the issuance by the United States Army Corps of Engineers (Corps) of five permits authorizing the private construction of a "multi-purpose deepwater port and crude oil distribution system" at Galveston, Texas. Under the auspices of section 10(e)(2) of the Administrative Procedure Act (APA), 5 U.S.C. s 706(2), plaintiffs challenge the agency decisionmaking process involved here as violative, inter alia, of the National Environmental Policy Act (NEPA), 42 U.S.C. s 4321 et seq., the Fish and Wildlife Coordination Act (FWCA), 16 U.S.C. s 661 et seq, section 404 of the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. s 1344, section 10 of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. s 403, and

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various federal regulations governing the activities of the Corps. Suit was filed against the federal defendants 2 on May 19, 1981. The permit applicants, Pelican Terminal Company (PELCO) and the City of Galveston, through the Galveston Wharves, intervened as defendants shortly thereafter.

The central thrust of plaintiffs' case concerns the Corps' compliance with the procedural strictures of federal law, principally NEPA and the FWCA, in the agency decisionmaking process. Plaintiffs present a manifold challenge to the adequacy of the final environmental impact statement (FEIS) required by NEPA. Plaintiffs also assail the adequacy and good faith of the Corps' coordination efforts with the U. S. Fish and Wildlife Service (FWS), contending that it was violative of both NEPA and the FWCA. It is alleged that officials of the FWS and the Department of the Interior (DOI) defaulted on their FWCA obligation to prepare a formal written report for incorporation into the FEIS, that the Corps defaulted on its obligation to include such a report in the FEIS, that high ranking officials in FWS and DOI improperly quashed efforts of local FWS officials to submit further comments concerning the FEIS subsequent to publication, and that the Corps improperly refused to consider these comments.

The case came before the Court for hearing on October 21, 1981. During the seven days of hearings, numerous exhibits were introduced to supplement the already voluminous administrative record of the case, and plaintiffs offered live testimony of eleven witnesses, including the agency decisionmaker, Colonel James M. Sigler, representatives of PELCO, the Wharves, the Texas Offshore Port project (TOP), 3 and experts in environmental, economic, and energy-related fields. At the conclusion of the hearing on October 28, 1981, the Court directed the parties to file post-trial briefs. Final arguments were held on December 4, 1981. Having reviewed the administrative record, the further evidence adduced before the Court, and having considered the memoranda, briefs, and arguments of counsel, 4 the Court now enters this Memorandum and Order pursuant to Fed.R.Civ.P. 52.

I.

BACKGROUND

On July 8, 1980, Colonel James M. Sigler of the U. S. Army Corps of Engineers issued five permits authorizing the private construction of an onshore deepwater port and crude oil terminal at Galveston, Texas. The decision concluded some two and a half years of agency review of the proposed action under NEPA. The permitted project entails the deepening and extending of the existing Galveston Harbor and Channel to allow very large crude carriers (VLCCs) of up to 250,000 deadweight tons (dwt) to offload their cargo at the Port of Galveston. The project contemplates the construction of a crude oil tanker berthing and offloading facility on Pelican Island, and a crude oil pipeline distribution system linking the

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Pelican Island terminal with storage facilities at Texas City, Beaumont, Houston and Freeport. The deepening of Galveston Channel will also make possible extended use of larger vessels in other trade at the Port, such as bulk commodities.

From the beginning the project has sparked vehement controversy. Opposition focused upon the potential impact of a major oil spill upon environmentally sensitive areas of Galveston Bay. The possibility of a massive tanker oil spill in the Bay, if not the most significant concern associated with the project, has clearly been the most visible one.

The spectre of a major oil spill in Galveston Bay, however, has preceded by several decades the vision of a deepwater port at its outer perimeter. The area has long been a thriving center of maritime commerce along the Texas coast, and the petrochemical industry has provided a major catalyst to that activity. Indeed, the nation's largest concentration of refineries and petrochemical plants is located within a crescent running from Freeport to Galveston to Beaumont, and crude-carrying vessels ranging from 50,000 dwt to 150,000 dwt frequent the navigable waters of the area. More than 2,000 tankers annually enter the Galveston Entrance Channel enroute through Galveston Bay to the ports of Texas City and Houston. Approximately one-third of these vessels have drafts of 36 feet or greater.

As the federal defendants note, then, the project does not threaten a pristine waterway or introduce a significantly new type of environmental risk into the commercial activity of the Bay. It will introduce into the commercial activity of the area, however, the presence of deep draft VLCCs of up to 250,000 dwt in close proximity to environmentally sensitive estuarine waters of the Bay, portending an oil spill more massive in scope than heretofore possible. At present, the largest spill associated with a single-tanker casualty that could conceivably threaten environmentally sensitive Bay areas would involve approximately 28,000,000 gallons of oil. An oil spill associated with the project could involve up to 49,000,000 gallons of oil. 5

Essentially, it is the Corps' assessment in the FEIS of the probability of such an occurrence and the likely environmental impacts that would follow, when balanced against the utility of the project, that plaintiffs challenge. In his decision of June 8, Col. Sigler found that a balance was struck in favor of the development of the project and the issuance of the permits in question. Plaintiffs' array of challenges to the decisionmaking process involved here ultimately aim at a single conclusion: that the Corps' findings and conclusions, when subjected to judicial scrutiny under the scope of review set forth in section 10(e)(2) of the APA, is "arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law," 6 and thus must be set aside.

II.

CHALLENGES TO AGENCY DECISIONMAKING UNDER NEPA

A. The Scope of Review

Section 102(2)(C) of NEPA, 42 U.S.C. s 4332(2)(C), requires federal agencies, such as the Corps of Engineers, to prepare a "detailed statement" whenever they propose "major Federal actions significantly affecting the quality of the human environment." By requiring an impact statement, Congress intended to ensure that federal

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agencies consider the environmental impact of their actions in the decisionmaking process. Kleppe v. Sierra Club, 427 U.S. 390, 410, 96 S.Ct. 2718, 2730, 49 L.Ed.2d 576 (1976); South Louisiana Environmental Council, Inc. (SLEC) v. Sand, 629 F.2d 1005, 1010 (5th Cir. 1980). To ensure that the effects of a project on the environment do not go unnoticed by a federal agency or the public at large, NEPA requires a discussion in the EIS of (1) the environmental impact of the proposed action, (2) any unavoidable adverse environmental effects, (3) alternatives to the proposed action, (4) the relationship between the short-term uses and long-term productivity of the environment, and (5) any irreversible and irretrievable commitment of resources occasioned by the proposal. 42 U.S.C. s 4332(2)(C)(i-v).

While NEPA sets forth significant substantive goals for the nation, its mandate to decisionmaking agencies is essentially procedural. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978). The role of the reviewing court is similarly limited. Once an agency has followed NEPA's procedural requirements to a decision, the only role for a court is to ensure that the agency has considered the environmental consequences as Congress intended. Stryker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227, 100 S.Ct. 497, 499, 62 L.Ed.2d 433 (1980); SLEC v. Sand, supra, at 1009-10.

The Fifth Circuit has articulated three criteria for determining the adequacy of an EIS: (1) whether the agency in good faith objectively has taken a hard look at the environmental consequences of a proposed action; (2) whether the EIS provides details sufficient to allow those who did not participate in its preparation to understand and consider the pertinent environmental influences involved; and (3) whether the EIS exploration of...

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