State of La. v. Lee

• Decision Date: 29 April 1985
• Docket Number: No. 84-3699,84-3699
• Citation: 758 F.2d 1081
• Parties: , 15 Envtl. L. Rep. 20,609 STATE OF LOUISIANA, et al., Plaintiffs-Appellants, v. Colonel Robert C. LEE, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1081

758 F.2d 1081

22 ERC 1779, 15 Envtl. L. Rep. 20,609

STATE OF LOUISIANA, et al., Plaintiffs-Appellants, v. Colonel Robert C. LEE, et al., Defendants-Appellees.

No. 84-3699.

United States Court of Appeals Fifth Circuit.

April 29, 1985.

William J. Guste, Jr., Atty. Gen., William G. Davis, Baton Rouge, La., Nicholas C Yost, Washington, D.C., for plaintiffs-appellants.

John R. Peters, Jr., New Orleans, La., for Pontchartrain, et al.

John Volz, U.S. Atty., William F. Baity, AUSA, New Orleans, La., Edward J. Shawaker, Robert L. Klarquist, U.S. Dept. of Justice, Washington, D.C., for Lee, Bratton, Gianelli & Marsh.

Joseph E. LeBlanc, Jr., New Orleans, La., for La. Materials.

James A. Burton, Frank J. Peragine, New Orleans, La., for Radcliff.

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

Before CLARK, Chief Judge, GOLDBERG, and TATE, Circuit Judges.

CLARK, Chief Judge:

Plaintiffs appeal the district court's summary judgment dismissing their claim that the National Environmental Policy Act (NEPA) required the U.S. Army Corps of Engineers (Corps) to complete an environmental impact statement before renewing six permits for shell dredging in Louisiana waters. We vacate and remand.

I

In 1982 the Corps, pursuant to the Rivers and Harbors Act, 33 U.S.C. Sec. 403, and the Clean Water Act, 33 U.S.C. Sec. 1344, renewed six five-year permits allowing the holders to dredge for shells in the Louisiana Gulf Coast area, which consists of the Gulf of Mexico, East and West Cote Blanche, Four League Bay, and Vermillion Bay, as well as in Lake Pontchartrain and Lake Maurepas. Before issuing the renewals, the Corps performed the environmental assessment mandated by the Council on Environmental Quality NEPA Regulations, 40 C.F.R. Sec. 1508.9. After reviewing this assessment the Corps concluded that NEPA did not require preparation of an impact statement and instead issued a finding of no significant impact under 40 C.F.R. Sec. 1508.13.

Plaintiffs, five private environmental groups ¹ and the state of Louisiana, then filed this suit seeking (1) a declaratory judgment that the renewal of the permits without preparation of an impact statement violated NEPA and (2) an injunction requiring the Corps to rescind the permit extensions and to prohibit further dredging until an adequate impact statement is prepared. Four of the companies who had received the extensions, Radcliff Materials, Inc., Louisiana Materials Company, Inc., Pontchartrain Materials Corp., and Pontchartrain Dredging Corp., intervened as defendants pursuant to Fed.R.Civ.P. 24.

After plaintiffs moved for summary judgment, the Corps responded with a motion to suspend the court proceedings and remand the record for further consideration by the Corps. The court granted the Corps's motion, but allowed only about nine weeks for the reconsideration. At the end of this period the Corps filed a revised environmental assessment and findings of fact and again entered a finding of no significant impact. The Corps's simultaneous motion to remove the 1982 environmental documents from the record was denied.

Both parties then moved for summary judgment. The district court granted defendants' motion and dismissed plaintiffs' action.

II

On appeal plaintiffs maintain that the district court's order was erroneous because defendants failed to establish that there was no material dispute as to whether the Corps was reasonable in concluding that no significant environmental impact would result from continuing the dredging. They also assert that the judge should not have considered the restrictive conditions imposed on the permits in reviewing the Corps's decision. Finally they ask us to order the district court to enter summary judgment in their favor and for an injunction against further dredging until the impact statement is completed.

A

NEPA requires the preparation of an impact statement whenever a major federal action significantly affecting the quality of the human environment is proposed. 42 U.S.C. Sec. 4332(C). The district judge stated that the NEPA regulations prepared by the Council on Environmental Quality indicated that the Corps's decision on extending these permits constituted "major federal action." 596 F.Supp. 645, 651 n. 7 (E.D.La.1984). At oral argument before the district court, the attorney representing the Corps stated that he was not asserting the decision did not represent major federal action. Therefore, the only question presented is whether continuation of the dredging will have a significant impact on the human environment.

1.

All parties agree that unrestricted dredging would have a significant environmental effect. 596 F.Supp. at 655. The defendants contend, however, that the restrictive conditions imposed on the dredging permits reduce the effect below the level of significance. Plaintiffs assert that these restrictions should not be considered in assessing the impact of the dredging and, in the alternative, even if they are considered the dredging will still have a significant effect on the human environment. For their first point they rely on an interpretive document issued by the Council on Environmental Quality, "Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations." 46 Fed.Reg. 18,026 (1981). In this document the Council stated: "[m]itigation measures may be relied upon to make a finding of no significant impact only if they are imposed by statute or regulation or submitted by an applicant or agency as part of the original proposal." Id. at 18,038.

The district court correctly concluded that plaintiffs' reliance on this document is misplaced. Although the NEPA regulations issued by the Council are binding on all federal agencies, this publication is not a regulation, but merely an informal statement. Therefore, it is not a controlling authority. Cabinet Mountains Wilderness v. Peterson, 685 F.2d 678, 682 (D.C.Cir.1982). Second, despite the Council's statement that this document did not impose any additional requirements beyond those contained in the NEPA regulations, 46 Fed.Reg. at 18,026, the underlying regulations cited by the Council, 40 C.F.R. Secs. 1508.8 and 1508.27, do not discuss the propriety of considering mitigating conditions. 685 F.2d at 682-83. Finally, NEPA was intended to address reality, not a hypothetical situation. The conditions at issue are embodied in the permits themselves. This is not an instance where the proposed mitigating conditions consist of vague statements of good intentions by third parties not within the control of the agency. In Preservation Coalition, Inc. v. Pierce, 667 F.2d 851, 860 (9th Cir.1981), the court properly concluded that such tenuous assurances could not be considered as mitigating the significance of the environmental effects. Rather, here the conditions are legally enforceable by the Corps. The dredging must be conducted in accordance with these restrictions. Therefore, the only realistic course of action is to consider the conditions in reviewing the Corps's decision not to file the impact statement.

2.

Judicial review of an agency's decision not to file an environmental impact statement is governed by the rule of reasonableness. "The standard of judicial review is whether the agency decision not to develop an impact statement is reasonable and made objectively and made in good faith on a reviewable environmental record. 'If the decision is reasonable, the determination must be upheld.' " Save Our Wetlands, Inc. v. Sands, 711 F.2d 634, 644 (5th Cir.1983) (quoting Save the Bay, Inc. v. U.S. Corps of Engineers, 610 F.2d 322, 325 (5th Cir.), cert. denied, 449 U.S. 900, 101 S.Ct. 269, 66 L.Ed.2d 130 (1980); e.g., Vieux Carre Property Owners, Residents & Associates v. Pierce, 719 F.2d 1272, 1279 (5th Cir.1983). Under this standard

the court must determine whether the plaintiff has alleged facts which, if true, show that the recommended project would materially degrade any aspect of environmental quality.

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If the court concludes that no environmental factor would be significantly degraded by the project, [defendants'] determination not to file the impact statement should be upheld. On the other hand, if the court finds that the project may cause a significant degradation of some human environmental factor (even though other environmental factors are affected beneficially or not at all), the court should require the filing of an impact statement or grant [plaintiffs] such other equitable relief as it deems appropriate.

Save Our Ten Acres v. Kreger, 472 F.2d 463, 466-67 (5th Cir.1973) (emphasis added).

To facilitate NEPA's basic purpose, we utilize this more rigorous standard rather than the rule of arbitrary and capricious review that ordinarily governs agency actions. This ensures that the environmental effects of a proposal are considered "to the fullest extent possible." Id. at 466. An environmental impact statement is intended to detail the environmental and economic effects of any proposed federal action so that those not directly involved can understand and give meaningful consideration to and make appropriate comment on the factors involved. It also ensures that the decisionmaker gives serious weight to environmental factors in making discretionary choices. Sierra Club v. Morton, 510 F.2d 813, 819 (5th Cir.1975). See Sierra Club v. Sigler, 695 F.2d 957, 964-65 (5th Cir.1983). The private defendants argue that the environmental assessments prepared in this case were so exhaustive as to be the "functional equivalent" of an impact statement. This argument overlooks the fact that the procedural requirements of NEPA governing the filing of impact statements were not met. Any decision based on an environmental assessment alone is necessarily more speculative than one made after the preparation and full consideration required by an impact statement. Therefore, when such a decision places a...