Sierra Club v. Froehlke

• Decision Date: 11 May 1987
• Docket Number: No. 86-2247,86-2247
• Citation: 816 F.2d 205
• Parties: , 17 Envtl. L. Rep. 20,817 SIERRA CLUB, et al., Plaintiffs-Appellees, v. Robert F. FROEHLKE, Etc., et al., Defendants-Appellants, Trinity River Authority of Texas, and Chambers-Liberty Counties Navigation District, et al., Intervenors-Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 205

816 F.2d 205

25 ERC 1993, 17 Envtl. L. Rep. 20,817

SIERRA CLUB, et al., Plaintiffs-Appellees, v. Robert F. FROEHLKE, Etc., et al., Defendants-Appellants,

Trinity River Authority of Texas, and Chambers-Liberty

Counties Navigation District, et al.,

Intervenors-Defendants-Appellants.

No. 86-2247.

United States Court of Appeals, Fifth Circuit.

May 11, 1987.

Warren G. Clark, Anahuac, Tex., for Chambers-Liberty.

James R. Gough, Asst. U.S. Atty., Henry K. Oncken, U.S. Atty., Houston, Tex., for U.S.

James H. Keahey, Austin, Tex., for Trinity River Authority of Texas.

Charles L. Berry, Sharon M. Mattox, Houston, Tex., Richard D. Milvenan, Austin Tex., for City of Houston.

Paul Elliott, Asst. Atty. Gen., Austin, Tex., for State of Tex.

Raymond B. Ludwiszewski, Robert L. Klarquist, David C. Shilton, U.S. Dept. of Justice, Land & Natural Resources Div., Appellate Section, Washington, D.C., for John O. Marsh.

Rayburn Berry, Houston, Tex., Robert G. Dreher, Washington, D.C., for Sierra Club, Houston Audubon Soc.

Appeals from the United States District Court for the Southern District of Texas.

Before THORNBERRY, GEE and REAVLEY, Circuit Judges.

REAVLEY, Circuit Judge:

This is an appeal from the district court's judgment refusing to lift the permanent injunction that halted construction of the Wallisville Lake Project (Wallisville) in 1973. In 1985, the United States Army, Corps of Engineers (the Corps) filed a motion with the district court to have the injunction dissolved, arguing that they had fully complied with its terms. Also supporting dissolution of the injunction were intervenors, the Trinity River Authority of Texas, the City of Houston, and the Chambers-Liberty Counties Navigation District. The Sierra Club Environmental Protection Fund, and others (collectively referred to as Sierra Club), challenged the Corps' motion, contending that the Corps had failed to satisfy the terms of the injunction by not adhering to the procedural requirements of the National Environmental Policy Act (NEPA), 42 U.S.C. Secs. 4321-4347, following entry of the injunction. Furthermore, Sierra Club argued that the Corps' final environmental impact statement was inadequate. The district court found that the Corps had departed from the procedural requisites of NEPA, but did not rule on the question of the adequacy of the environmental impact statement. Sierra Club v. Froehlke (Wallisville II), 630 F.Supp. 1215 (S.D.Tex.1986). We disagree that the Corps violated NEPA, and further find that if the district court had considered the question, it could only have found that the final environmental impact statement was adequate. We reverse the judgment, vacate the injunction, and dismiss the case.

I History of the Wallisville Litigation

Like most environmental litigation we see, this case has a long history and is mired in an alphabet soup of acronyms. As originally authorized in 1962, the Wallisville Lake Project was to span 19,700 acres, and serve five purposes: salinity control, water supply, fish and wildlife enhancement, navigation and recreation. Construction began on the project in 1966. In 1969 Congress enacted the National Environmental Policy Act (NEPA), 42 U.S.C. Secs. 4321-4347. Although approximately 28% complete when NEPA became law, the Corps had to draft and circulate an environmental impact statement (EIS), which it did in 1970. The next year, the Sierra Club brought suit seeking to enjoin construction of the project, alleging numerous deficiencies in the EIS.

The trial court granted Sierra Club's motion for summary judgment and enjoined further construction of Wallisville. In a lengthy opinion the trial court listed innumerable deficiencies from which the 1971 EIS suffered. Sierra Club v. Froehlke, 359 F.Supp. 1289 (S.D.Tex.1973). The project was 72% complete when it was enjoined. On appeal, we reversed, but left the injunction in place until certain deficiencies in the EIS were corrected. Sierra Club v. Callaway (Wallisville I), 499 F.2d 982 (5th Cir.1974). We held that on remand the Corps only had to submit a supplemental EIS; a new EIS was not required. We further stated that the supplemental report would be judged anew on the basis of its compliance with NEPA, with the burden of proof on Sierra Club to show noncompliance. Id. at 992.

Subsequent to our 1974 opinion, the Corps reconsidered the scope and impact of Wallisville, and decided to revise the project. The modified project drastically reduced the size of the reservoir, from the original 19,700 acres to 5,600 acres restricted to an area east of the Trinity River. Instead of describing these changes in a supplemental report, the Corps prepared an entirely new EIS. The draft EIS was filed with the Environmental Protection Agency (EPA) in July, 1979, and circulated to interested agencies and individuals for comment. The EIS was revised in response to these comments, and the final EIS, along with the Post-Authorization Change Report (PACR--hereinafter referred to together as the "EIS-PACR"), were released to the public in July, 1981.

In October, 1981, the EIS-PACR was forwarded to the Board of Engineers for Rivers and Harbors (BERH) for review. At BERH concern arose regarding whether the modified design so altered the original project that congressional authorization would be needed before construction could resume. In particular, the EIS-PACR deleted two of the original benefits--fish and wildlife enhancement and navigation--slated for Wallisville when Congress authorized the project in 1962. BERH sent the EIS-PACR to the Office of Chief of Engineers (OCE) for resolution of this policy issue. OCE thereupon requested the Corps to prepare a supplemental report, the Supplemental Information to the Post-Authorization Change Report (SIPACR), to aid the Chief of Engineers to determine the scope of his discretionary authority with respect to the project. The seventeen-page SIPACR, dated July, 1982, recalculated the economic benefits of Wallisville, and concluded, contrary to the EIS-PACR, that the project would indeed enhance fish and wildlife, and benefit navigation. The SIPACR recommended that the Chief of Engineers could exercise his discretionary authority to approve construction without Congressional authorization, since all five project purposes were served by the modified design.

On July 30, 1983, before OCE acted on or adopted the Corps' recommendation, Congress authorized the modified Wallisville project, and in so doing referenced the SIPACR. Supplemental Appropriations Act, Pub.L. No. 98-63, 97 Stat. 301, 311 (1983). The SIPACR, however, had been intended for internal purposes only, and had never been subjected to any form of NEPA review. The parties dispute how Congress obtained the SIPACR; but despite Sierra Club's protestations to the contrary, there is no evidence that the Corps surreptitiously forwarded a copy of the report to Congress in order to evade NEPA. However Congress obtained the report, the Corps faced a "procedural quandary": Congress had authorized the project apparently relying in part on a document never subjected to public comment--indeed, a document never made publicly available. ¹

Responding to the perceived predicament created by Congress' action, the Corps released the SIPACR for public review and comment in September, 1983. A supplemental information report (SIR) was prepared and released in February, 1984, containing comments received during preparation of the EIS-PACR, comments on the SIPACR, and the responses to those comments. Brigadier General Robert J. Dacey, Southwestern Division Engineer, in a record of decision (ROD) dated February 25, 1984, found the project to be in compliance with the applicable environmental laws and regulations, and approved the project.

On November 1, 1985, Congress again took action appropriating funds for Wallisville. Energy and Water Development Appropriation Act, Pub.L. No. 99-141, 99 Stat. 564 (1985). Referencing virtually every document available--the 1981 EIS-PACR, the 1982 SIPACR, the 1984 SIR, and the 1984 ROD--the House and Senate committee reports "urge[d] the earliest possible completion of the project." H.R.Rep. No. 195, 99th Cong., 1st Sess. 37 (1985); S.R.Rep. No. 110, 99th Cong., 1st Sess. 41 (1985).

II

The many plot twists in this case have resulted in a complex intertwining of the administrative and legislative processes. Untangling this jumble reveals essentially three questions for our consideration. The primary question, considered in this section of our opinion, concerns the true nature of the 1982 SIPACR, and whether it required review and refinement as a supplemental environmental impact statement (SEIS) under NEPA. In the following section we turn to the question, not ruled upon below, of the substantive adequacy of the 1981 EIS-PACR. In the final section, we interpret the 1983 legislation that authorized the Wallisville project prior to the Corps' completion of its required review.

When is a SIPACR a SIR and Not a SEIS?

Although NEPA does not specify when a supplement to an EIS must be filed, the Corps' regulations dictate that "[a] Supplement to the draft or final EIS on file will be prepared whenever significant impacts resulting from changes in the proposed plan or new significant impact information, criteria or circumstances relevant to environmental considerations impact on the recommended plan or proposed action." ² 33 C.F.R. Sec. 230.11(b) (1986) (emphasis added). In making its determination whether to supplement an existing EIS because of new information, the Corps should consider "the extent to which the new information presents a picture of the likely environmental consequences associated with the proposed action not envisioned by the original EIS." Wisconsin v. Weinberger, 745 F.2d 412, 418 (7th Cir.1984), quoted in Louisiana Wildlife Federation v. York, 761 F.2d 1044, 1051 (5th Cir.1985). The change need not be strictly environmental,...