Environmental Def. F., Inc. v. Corps of Eng. of US Army, 72-2874.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtGOLDBERG, CLARK and RONEY, Circuit
Citation492 F.2d 1123
PartiesENVIRONMENTAL DEFENSE FUND, INC., et al., Plaintiffs-Appellants, v. CORPS OF ENGINEERS OF the UNITED STATES ARMY et al., Defendants-Appellees, Tennessee-Tombigbee Waterway Development Authority and Tombigbee River Valley Water Management District, Intervenors-Appellees.
Docket NumberNo. 72-2874.,72-2874.
Decision Date19 April 1974



Richard S. Arnold, Texarkana, Ark., Jon T. Brown, Washington, D. C., for plaintiffs-appellants.

Irwin Goldbloom, A. Theodore Giattina, Civ.Div., Morton Hollander, Civ. Div., U. S. Dept. of Justice, Washington, D. C., for Corps of Engineers.

John H. Gullett, Washington, D. C., for intervenors.

Hunter M. Gholson, Water Development Authority, Columbus, Miss., for Tennessee-Tombigbee.

Fred M. Bush, Jr., Water Management District, Tupelo, Miss., for Tombigbee River Valley.

H. M. Ray, U. S. Atty., Oxford, Miss., for defendants-appellees.

Before GOLDBERG, CLARK and RONEY, Circuit Judges.

CLARK, Circuit Judge:

This is an environmentalist action to enjoin the construction of the Tennessee-Tombigbee Waterway, a navigation project in Mississippi and Alabama. The appellate issue is whether the United States Army Corps of Engineers complied with the duties imposed by the National Environmental Policy Act of 1969 NEPA.1 The plaintiffs assert that the Corps did not fulfill the basic intent of NEPA that federal agencies utilize procedures which assure that environmental considerations will be incorporated in their decision making on every major federal action. They claim that the decision to construct the Tennessee-Tombigbee Waterway, which pre-dated NEPA's enactment, either was never seriously reconsidered, or that the decision was based on a study which was only one-third complete. Additionally, they challenge the correctness of the district court's findings that the Corps of Engineers made a sufficiently detailed environmental impact statement and otherwise complied with the procedural mandates of NEPA. They finally contend that the district court erred in refusing to hear evidence and determine whether the Corps arbitrarily weighed the merits of the environmental, economic and technical values inherent in construction of the proposed project.

We have considered both the failure-to-make-meaningful-reconsideration and the decision-based-on-an-incomplete-study aspects of the claim of prejudgment and find neither to be a ground for reversal. The record demonstrates no mistake of law and no clear error of fact in the district court's holdings that the Corps satisfied NEPA's various procedural requirements. The district court's refusal to review the merits of the Corps' determination to proceed with the project is not reversible error since that determination, although normally subject to review under the Administrative Procedure Act,2 has been superseded by a congressional decision that the waterway should go forward, which was made after a legally sufficient environmental impact study had been filed and debated. We affirm.

The opinion of the district court, 348 F.Supp. 916, contains a broad description of the construction details of the Tennessee-Tombigbee Waterway project and the background of the present litigation. The following discussion is included only for ease of reference. The waterway is a navigation project to connect the Pickwick Pool of the Tennessee River with the navigable portion of the Tombigbee River so as to provide a canal between the Tennessee Valley and the tidewater port of Mobile.

The idea of connecting the Tennessee and Tombigbee Rivers extends back at least to the beginning of the nineteenth century.3 In 1874-75 the Corps of Engineers, at the direction of President Grant, conducted its first feasibility study of the Tennessee-Tombigbee connection. At that time the Corps concluded that it was technically possible to build the canal, but they doubted there would be sufficient commerce to justify the expenditure. Subsequent feasibility studies were conducted by the Engineers in 1913, 1923, 1932, 1938, 1945, 1960 and 1966. As late as 1951 the Corps gave the waterway an adverse economic report and placed the project in the category of proposals deferred for restudy. However, as a result of more recent reevaluations indicating that the anticipated benefits exceed the estimated costs of construction and maintenance, the Corps has recommended construction.4

After the defeat of several similar bills prior to World War II, Congress authorized federal funding of the Tennessee-Tombigbee Waterway in 1946, but during the subsequent 24 years made no appropriations. Prior to the passage of the initial legislation appropriating funds for the construction of the first phase of the waterway, Congress enacted NEPA. Later in 1970, legislation was enacted providing $1 million for the start of construction in the fiscal year 1971. The following year $6 million was appropriated for use in fiscal 1972, and an additional $12 million has now been appropriated for fiscal 1973.

When NEPA became law, the Mobile District Office of the Corps of Engineers, which has responsibility for waterway improvements in the Tombigbee Valley, created an Environmental Resources Branch. Between March 1970 and April 1971, a six man team composed of employees of this branch conducted a study of the environmental impact of the proposed waterway. During the course of this study, the team sought information and advice from academic authorities and governmental agencies that had expertise in the environmental problems of the Tombigbee Valley. This study resulted in a preliminary draft statement of what the team regarded as the significant environmental effects of the project. The preliminary draft was then subjected to internal review procedures established by the Corps. Subsequently, the draft was reviewed by three independent consultants experienced in the fields of ecology, hydrology, and environmental design. Comments and criticisms were also solicted from academicians and federal and state agencies having special expertise or legal responsibilities relevant to the impacts of the project. On April 20, 1971, following modifications and further internal review, the final environmental impact statement was submitted to the Council on Environmental Quality CEQ, an environmental group created by NEPA to act as consultants to the President.5 The CEQ did not rule adversely on the statement. The general import of the statement and the details of the CEQ's action were directly brought to the attention of Congress in the course of floor debate over approval of the 6 million dollar appropriation for construction of the initial phases of the Waterway which were included in the 1971 Public Works Act.6

The start of project construction was enjoined by the District Court for the District of Columbia, 331 F.Supp. 925 (1971). Subsequently, the case was transferred to the District Court for the Northern District of Mississippi which, after issuing the decision that is the subject of this appeal, dissolved the preliminary injunction. Construction of the project has been underway since that dissolution.

Corps Prejudgment

Plaintiffs take the position that the decision to build the waterway, which had been reached before NEPA was enacted, was never really reconsidered. They reason that the environmental impact statement prepared by the Corps and approved by the court below is the product of post hoc rationalizations which merely generated a bulk of paper rather than a written demonstration that the Corps gave meaningful consideration to ecological factors in its decision making. Criticism is also leveled at the use of a three-part approach to environmental considerations connected with this project. Plaintiffs assert that the plan to complete the latter two phases of the total environmental study as construction of the project proceeds resulted in a first-phase environmental impact statement that was a tentative, preliminary document incompatible with NEPA's "detailed" requirement.7 At the heart of the first prejudgment issue, is whether plaintiffs proved that the Corps acted perfunctorily in its compliance efforts. NEPA commands "full good faith consideration of the environment," not formalistic paper shuffling between agency desks. Calvert Cliffs' Coordinating Comm. v. Atomic Energy Commission, 146 U.S. App.D.C. 33, 449 F.2d 1109, 1113 n. 5 (1971). Whenever a NEPA based challenge is raised as to a project that was planned and approved before the Act's effective date, the agency involved is vulnerable to charges of institutional bias if its ultimate decision under NEPA is in favor of proceeding with the work it previously approved or initiated. It is obviously preferable that environmental studies and their evaluation occur before the agency becomes committed to a project. Boston v. Volpe, 464 F.2d 254, 257 (1st Cir. 1972). However, as plaintiffs recognize, we cannot at the same time apply NEPA retroactively and reflexively condemn the required effort to comply retroactively with the Act's commands. The possibility that a group which has created or published its concurrence in a project will continue to favor it despite NEPA cannot be a bar to compliance. Therefore, this court adopts the essence of the test used in Environmental Defense Fund v. Corps of Engineers, 470 F.2d 289, 296 (8th Cir. 1972). An agency's actions in a situation of this type are not viable if the proof discloses that the agency proceeded to perform its environmental tasks with less than "good faith objectivity".8

The most cogent proof that plaintiffs offered in support of their thesis of mere formalism consisted of two excerpts from letters of the Mobile District Engineer for the Corps, which are set out in the margin.9 While these letters convey a spirit of confidence on the part of the writer that the project would be found to be acceptable environmentally,...

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