Sierra Club v. Marsh

• Decision Date: 09 December 1988
• Docket Number: No. 88-2049,88-2049
• Parties: , 57 USLW 2586, 19 Envtl. L. Rep. 20,931 SIERRA CLUB, et al., Plaintiffs, Appellants, v. John O. MARSH, Jr., et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 497

872 F.2d 497

29 ERC 1472, 57 USLW 2586, 19 Envtl.

L. Rep. 20,931

SIERRA CLUB, et al., Plaintiffs, Appellants, v. John O. MARSH, Jr., et al., Defendants, Appellees.

No. 88-2049.

United States Court of Appeals, First Circuit.

Heard Dec. 9, 1988.

Decided March 31, 1989.

Edward F. Lawson with whom Weston, Patrick, Willard & Redding, Boston, Mass., and Tybe A. Brett, Portland, Me., were on brief, for plaintiffs, appellants.

Lee P. Breckenridge, Chief, Environmental Protection Div., with whom James M. Shannon, Atty. Gen., Boston, Mass., was on brief, for Com. of Mass., amicus curiae.

Anthony C. Roth with whom John Quarles, Lisa M. Campbell, Morgan, Lewis & Bockius, Washington, D.C., and Thomas G. Reeves, Chief Counsel, Legal Div., Augusta, Me., were on brief, for defendant, appellee Maine Dept. of Transp.

David C. Shilton, Land and Natural Resources Div., Dept. of Justice, with whom Robert L. Klarquist, Daniel S. Goodman and Roger J. Marzulla, Asst. Atty. Gen., Washington, D.C., were on brief, for federal defendants, appellees John O. Marsh, Jr., et al.

Peter Shelley, Stephanie Pollack and Janet McGowan, Boston, Mass., on brief, for Conservation Law Foundation of New England, Inc., amicus curiae.

Before BOWNES, BREYER and SELYA, Circuit Judges.

BREYER, Circuit Judge.

In Commonwealth of Massachusetts v. Watt, 716 F.2d 946 (1st Cir.1983), we said that the National Environmental Policy Act ("NEPA"), 42 U.S.C. Sec. 4321 et seq. (1982 & Supp. IV 1986), seeks to create a particular bureaucratic decisionmaking process, a process whereby administrators make important decisions with an informed awareness of how the decision might significantly affect the environment. We wrote that, if any such decision is made without the information that NEPA seeks to put before the decisionmaker, the harm that NEPA seeks to prevent occurs. Watt, 716 F.2d at 952. And we held that courts are to take account of that kind of harm when they consider whether to enjoin governmental actions that plaintiffs claim violate NEPA. Id. at 952-53. We now consider whether the Supreme Court, in Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987), overruled

this holding. We conclude that the Court did not overrule or significantly modify Watt, and we therefore remand this case to the district court, which ruled to the contrary.

I. Background

This case involves the State of Maine's efforts to build a new six-berth marine dry cargo terminal at Searsport, one of the busiest ports in Maine. The Maine Department of Transportation ("MDOT") wants to build the terminal on Sears Island, a 940-acre, uninhabited, undeveloped piece of land directly opposite Mack Point, the site of a present two-berth terminal. (See Appendix A for a map.)

In a previous case, we noted that the Sears Island project would not only require Maine to dredge the channel, clear the island and build a causeway connecting the island to the mainland (for a highway and a railroad spur), but it would also lead to considerable secondary development on the island; hence NEPA required the Federal Highway Administration ("FHWA"), which would fund much of the project, to prepare an Environmental Impact Statement ("EIS"). Sierra Club v. Marsh, 769 F.2d 868 (1st Cir.1985) (Sierra Club I ). See also Sierra Club v. Secretary of Transportation, 779 F.2d 776 (1st Cir.1985) (Sierra Club II ) (holding that the physical mainland link was a "causeway," not a "bridge," and therefore that it required appropriate "causeway" permits).

Subsequently, MDOT secured financial backing from the Federal Highway Administration and MDOT and FHWA together hired a consultant, prepared a Draft EIS, obtained public comments from both the public and governmental agencies, adopted a Final EIS, and decided to proceed with the Sears Island project. They then obtained the necessary permits from the U.S. Coast Guard and the U.S. Army Corps of Engineers, both of which adopted the findings of the Final EIS.

After MDOT and the FHWA received permits allowing them to proceed with the Sears Island project, the Sierra Club returned to federal court and began the present action. The Sierra Club, objecting to the Sears Island development (the option that the Draft EIS and the Final EIS favored), says that the Final EIS did not adequately evaluate the environmental effects of choosing the Sears Island site, nor did it adequately explore other alternatives (such as expanding the Mack Point terminal, or no new development at all) less harmful to the environment. Three federal "resource" agencies, the U.S. Environmental Protection Agency ("EPA") (which hired its own consultant to review this matter), the U.S. Fish and Wildlife Service ("FWS"), and the National Marine Fisheries Service ("NMFS"), agree with the Sierra Club's overall assessment.

In particular, the Sierra Club argued that the Final EIS did not respond adequately to the comments that it, and the resource agencies, had made on the Draft EIS. The Draft, for example, had given several reasons for preferring Sears Island to Mack Point: a six berth terminal means more jobs; there is room at Sears Island for six berths; there is room at Mack Point for only two berths; the cost of acquiring property at Mack Point is greater; the tax revenues would be greater from new development at Sears Island than from modifying Mack Point; and new berths at Mack Point would require more dredging and more tug boats than would Sears Island. The Sierra Club and the resource agencies had commented, in response, that the economy will demand no more than two berths through the year 2010 (so that six berths are not now necessary); the comparative costs and tax advantages favor Sears Island less than the Draft EIS suggested; no extra dredging or tug boats would be needed at Mack Point; and the environmental harms would be greater at Sears Island than they would be at Mack Point and greater than the Draft EIS estimated them to be. The Sierra Club argued in court that the Final EIS did not adequately deal with these and other comments. In particular, it said that the Final EIS exaggerated the economic need for the project (especially in light of an EPA consultant's report, which criticized the developers' consultant's methods and conclusions and The Sierra Club asked the district court to enjoin both the federal and state agencies from continuing to build the causeway or otherwise work upon the Sears Island project while the court considered the merits of its various, rather complex objections.

which found that only two berths would be necessary for a considerable time); that the Final EIS failed to consider important, less environmentally harmful alternatives (such as a terminal limited to two berths); and that it did not adequately consider secondary development. Furthermore, said the Sierra Club, the Final EIS did not take adequate account of new information discovered after it was published (such as the fact that the Sears Island terminal will require clearing 124 acres of wild land, not 50 acres as the Final EIS had estimated). The Sierra Club also claimed that neither the FHWA nor the Army evaluated the Final EIS properly before reaching their decisions. And the Sierra Club argued several technical failings, such as undisclosed potential conflicts of interest among consultants and improper incorporation of documents by reference.

The federal district court denied the Sierra Club's request for a preliminary injunction. Sierra Club v. Marsh, 701 F.Supp. 886 (D.Me.1988). In doing so, the court referred to this Circuit's well-known four-part test for the issuance of a preliminary injunction: Will failure to issue the injunction cause the plaintiff "irreparable harm"? Does the "balance of harms" favor the plaintiff or defendant? Can plaintiff show a "likelihood of success" on the merits? Will granting the relief harm the public interest? Planned Parenthood League v. Bellotti, 641 F.2d 1006, 1009 (1st Cir.1981). See Sierra Club, 701 F.Supp. at 894. But in answering these questions, and in particular in deciding whether there might be "irreparable harm" without the injunction, the district court stated that the Supreme Court case of Village of Gambell, supra, had "severely undercut" our holding in Watt, see Sierra Club, 701 F.Supp. at 895. It wrote that Village of Gambell "appears to preclude preliminary injunctive relief predicated on a likely NEPA violation unaccompanied by a showing of irreparable environmental injury." Id. at 897 (emphasis added; footnote omitted). And, it made clear that by the words "irreparable environmental injury," it meant physical harm to the environment that one could not repair at a later date (if a plaintiff should later win on the merits). Thus, it said that the plaintiffs had "failed to make a showing of irreparable environmental injury" because they had not shown that "removal of the causeway is either impracticable or that it would not restore the environmental status quo," id. at 898 (emphasis added). And, it added that the proposed dredging operations would not cause irreparable harm because restoration of the affected habitat was practicable. Id. at 898-99. The district court recognized that its view of what counts, potentially, as "irreparable harm" is inconsistent with Watt. See id. at 896-99; id. at 907. But it thought that Village of Gambell required this result.

The Sierra Club has appealed. It argues that the district court's view of Village of Gambell is wrong; that that case does not "undermine" Watt; and it adds that the district court, had it followed Watt, might have come to a different conclusion about whether to issue a preliminary injunction. After reexamining Watt and Village of Gambell, we agree with the Sierra Club's view of the law.

II. Watt

The simplest way to explain what we held in Watt is to quote here the relevant section of the opinion. In that case the plaintiffs argued that the...