South Louisiana Environmental Council, Inc. v. Sand

• Citation: 629 F.2d 1005
• Decision Date: 27 October 1980
• Docket Number: No. 78-3566,78-3566
• Parties: The SOUTH LOUISIANA ENVIRONMENTAL COUNCIL, INC., et al., Plaintiffs, and The Environmental Defense Fund, Inc., et al., Plaintiffs-Intervenors- Appellants, v. Thomas A. SAND, in his official capacity as District Engineer, U.S. Army Corps of Engineers, Etc., et al., Defendants-Appellees, and Morgan City Harbor and Terminal District, Defendant-Intervenor-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1005

629 F.2d 1005

15 ERC 1180

The SOUTH LOUISIANA ENVIRONMENTAL COUNCIL, INC., et al., Plaintiffs, and The Environmental Defense Fund, Inc., et al., Plaintiffs-Intervenors- Appellants, v. Thomas A. SAND, in his official capacity as District

Engineer, U.S. Army Corps of Engineers, Etc., et

al., Defendants-Appellees,

and

Morgan City Harbor and Terminal District,

Defendant-Intervenor-Appellee.

No. 78-3566.

United States Court of Appeals,

Fifth Circuit.

Oct. 27, 1980.

Michael Osborne, New Orleans, La., James T. B. Tripp, Environmental Defense Fund, Stephen D. Hamilton, New York City, for plaintiffs-intervenors-appellants.

John P. Volz, U. S. Atty., New Orleans, La., for U. S. A.

Baker & Botts, F. Walter Conrad, Jr., Houston, Tex., Jacques B. Gelin, Joshua I. Schwartz, Raymond N. Zagone, U. S. Dept. of Justice, Washington, D. C., for Morgan City Harbor, etc.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before RUBIN, HENDERSON, and REAVLEY, Circuit Judges.

REAVLEY, Circuit Judge:

This is an appeal from a final judgment dismissing the plaintiffs' claims seeking injunctive relief against the construction by the United States Army Corps of Engineers of the Atchafalaya River and Bayous Chene, Boeuf and Black, Louisiana navigation project. The district court held, after a full trial on the merits, that the Corps had complied with the requirements of the National Environmental Policy Act, 42 U.S.C. § 4321, et seq., and Section 404 of the Federal Water Pollution Control Act, 33 U.S.C. § 1344. ¹ We affirm.

Background

The Atchafalaya River and Bayous Chene, Boeuf and Black project was first considered by the Corps of Engineers in the mid-60's and was authorized by Congress in 1968. River and Harbor Act of 1968, § 101, P.L. 90-483, 82 Stat. 731. The project entails the enlargement, to a channel 400 feet wide and 20 feet deep, of a route along Bayou Black, located east of Morgan City, Louisiana, south from its intersection with U.S. Highway 90, through the Gulf Intercoastal Waterway, along Bayou Chene and the Avoca Island Cutoff, to the Lower Atchafalaya River, out through Atchafalaya Bay to the twenty-foot depth contour in the Gulf of Mexico. A channel was also planned along Bayou Boeuf, from Highway 90, running parallel to, and west of, the Bayou Black segment, through the Intercoastal Waterway to Bayou Chene. The project was designed to facilitate the movement of offshore drilling rigs and related marine equipment between construction and service facilities on Bayous Boeuf and Black and the drilling sites in the Gulf of Mexico. The site of the project lies on the western edge of a large tidal marsh area in south central Louisiana which is approximately 945 square miles in area.

The Corps prepared an environmental impact statement, as required by NEPA, as part of the planning of this project. A draft statement was transmitted to the Council on Environmental Quality in April 1972 and widely circulated among federal and state agencies, interested organizations and citizens. Comments were received and responses made thereto in the final environment impact statement (FES) issued January 15, 1974.

This action was commenced in March 1974. There were ten plaintiffs ² seeking declaratory injunctive relief under NEPA, FWCPA, and the Fish and Wildlife Coordination Act, 16 U.S.C. § 661, et seq. Other plaintiffs intervened ³ and Morgan City Harbor and Terminal District intervened as defendant. Since the completion of the Atchafalaya Bay-Gulf Reach was imminent, a hearing was held at the time on plaintiffs' motion for a preliminary injunction. The district court found that the project would have no significant effect on the level of salt water intrusion to the freshwater coastal marshlands or the Atchafalaya River, an insignificant effect upon deltaic formation in the Atchafalaya Bay, and no significant effect on back water flooding in the project area. The court, therefore, found the corresponding allegations of defects in the FES to be unfounded and denied the motion for preliminary injunction. No appeal was sought from those findings, and they were treated by the court as closed at the later trial on the merits.

Subsequent to the denial of the preliminary injunction, the Corps contracted for the completion of the Bay-Gulf Reach, which was completed December 12, 1974. The Bayou Boeuf portion was completed before trial also, and the Bayou Black Reach was nearly 50% complete at that time and is now complete. Completion of the remaining reach in Bayou Chene and the Avoca Island Cutoff is anticipated in late 1982.

In July 1974, while the Bay-Gulf Reach was under construction, the Corps promulgated new regulations subjecting the disposal of dredged spoil in navigable waters to a review process including a public hearing, pursuant to Section 404 of the FWPCA, 33 C.F.R. 209.145 (1979). Public hearings were held in early 1975, after which the Corps proposed, as an alternative to the disposal site plan adopted in the FES, to deposit the spoil in the Avoca Island Lake in order to reduce the undesirable environmental effects of disposal on wetlands. This proposal was approved by the EPA.

Modification of the spoil disposal plan required revision of the FES, so the Corps prepared a supplement (FSFES) which was filed with the Council on Environmental Quality in June 1976. Comments were again solicited, which were collected with responses and filed in final form on January 31, 1977. In February 1977 President Carter recommended that Congress not fund completion of the project because the project did not have a substantial balance of net benefits to environmental costs. Following Congressional hearings, ⁴ however, Congress rejected the President's recommendation and appropriated funds for the project's completion.

After issuance of the FSFES, plaintiffs amended their complaint, and trial on the merits was held in January 1978. The district court entered judgment denying plaintiffs' relief in October 1978.

On appeal, the plaintiffs contend that the project should be remanded to the Corps for further consideration because the Corps gave a distorted assessment of economic benefits and environmental costs in the FES and FSFES. The plaintiffs claim that the Corps' calculation of economic benefits was invalid due to the inclusion of invalid hurricane refuge and flood control benefits and the miscalculation of other navigation benefits. They also claim that the costs of the project were underestimated due to the Corps' failure to consider increased costs in view of a levee extension flood control proposal, and their failure to consider adequately the project's water quality impacts, impacts of economic and population growth in the project area, impacts on land loss, and alternatives to the project. They also argue that the Corps failed to comply with § 404 of FWCPA.

Scope of Review Under NEPA

Section 102(2)(C) of NEPA, 42 U.S.C. § 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." ⁵ By requiring an impact statement, Congress intended to insure that all agencies consider the environmental impact of their actions in the decision-making process. Kleppe v. Sierra Club, 427 U.S. 390, 410, 96 S.Ct. 2718, 2730, 49 L.Ed.2d 576 (1976). The contents of the statement are designed to insure that the effects of the project on the environment do not go unnoticed.

The Supreme Court recently gave instructions to the federal courts concerning review of NEPA challenges to agency action. Although "NEPA does set forth significant substantive goals for the nation ... its mandate to the 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). Accordingly, the role of the reviewing court is similarly limited. "(O)nce an agency has made a decision subject to NEPA's procedural requirements, the only role for a court is to insure that the agency has considered the environmental consequences." Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 100 S.Ct. 497, 500, 62 L.Ed.2d 433 (per curiam) (1980).

In Strycker's Bay, the Second Circuit found that HUD had "given consideration" to the environmental requirements of NEPA but reversed the agency's decision because environmental factors were not given determinative weight. 100 S.Ct. at 449. The Supreme Court reversed, holding that the agencies are not required by NEPA to "elevate environmental concerns over other appropriate considerations." Id. at 500. Once the reviewing court determines that the agency has satisfied the requirements of NEPA by taking a "hard look" at the environmental consequences of its actions, the court cannot interfere with the agency decision made within its statutory discretion. Kleppe, 427 U.S. at 410 n.21, 96 S.Ct. at 2730 n.21, cited with approval in Strycker's Bay, 444 U.S. at 227, 100 S.Ct. at 500. Plenary review of agency action is warranted only if, in view of the environmental consequences of the agency action considered pursuant to NEPA, the agency decision was "arbitrary, capricious, (or) an abuse of discretion," 5 U.S.C. § 706(2)(A).

The assessment of purely economic costs and benefits for the determination of agency action is essentially a question of policy and has traditionally been considered within the exclusive province of Congress. Oklahoma v. Guy F. Atkinson Co., 313 U.S. 508, 527-28, 61 S.Ct. 1050, 1060-61, 85 L.Ed. 1487 (1941) (no judicial review of Corps' cost-benefit ratio available under Flood Control Act of 1936, 33 U.S.C. § 701a). Upon the enactment of NEPA, however, some courts, including this one, began to require some judicial review of agency determination of economic benefits. See, e.g. Sierra Club v. Callaway, 499 F.2d...