Environmental Defense Fund v. Corps of Eng., US Army

Citation470 F.2d 289
Decision Date28 November 1972
Docket NumberNo. 72-1326.,72-1326.
PartiesENVIRONMENTAL DEFENSE FUND, INC., et al., Plaintiffs-Appellants, v. CORPS OF ENGINEERS OF the UNITED STATES ARMY et al., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

COPYRIGHT MATERIAL OMITTED

Richard S. Arnold, Texarkana, Ark., for plaintiffs-appellants.

Glen R. Goodsell, Atty., Dept. of Justice, Washington, D. C., for defendants-appellees.

Before MATTHES, Chief Judge, LAY and HEANEY, Circuit Judges.

MATTHES, Chief Judge.

This is another of the rapidly increasing number of cases which are focused in large part upon, and result from the adoption of, the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4347, which was passed by the Congress of the United States in December, 1969, and became effective January 1, 1970.

This litigation was triggered by the construction of a project known as Gillham Dam on the Cossatot River in Arkansas. The case is here on appeal by plaintiffs from the final order of the United States District Court, Eastern District of Arkansas, dissolving an injunction entered by that court on February 19, 1971, and dismissing the case.

I. HISTORY OF THE PROJECT

Judge Eisele has recorded a clear and graphic description of the Cossatot River and its environs, and we are not inclined to attempt to improve on what has been written. See 325 F.Supp. at 744-745. We are content to pinpoint the subject by making a few observations which lie at the heart of the controversy over the Gillham project.

During normal water stage the Cossatot, like many mountainous streams, is a valuable asset to man. The splendor of the scenery is magnificent. The clean water attracts many species of game fish, and wildlife abounds in the area. Fishermen, hunters and outdoor enthusiasts frequent the region; the rapids and pools challenge canoeists. But there is another side to the coin. When heavy rains descend in the Ouichita Mountain Range, as they have from time immemorial, the normal flow of water in the Cossatot becomes a raging torrent and the floods become an enemy to man. Thus, competing forces have aligned themselves for and against the dam. In part, the proponents are interested in controlling the floods, creating the recreational facilities and commercial development which accompany man-made lakes, and supplying pure water to the City of DeQueen, Arkansas. The opponents advance, among other arguments, the value of conserving one of the few remaining free-flowing rivers in southwest Arkansas, the sports of stream fishing and hunting, and the diversity of canoeing experiences.

Gillham Dam is a part of a massive flood control plan authorized by Congress in the Flood Control Act of 1958.1 The subject dam is one of seven authorized to be constructed in the Little River Basin. Of these, three have been completed, and three, including Gillham, are under construction. The Gillham project is designed to provide flood control, water supply and water quality control. Funds for construction were initially made available by the Public Works Appropriation Act of 1963.2 Work began in 1963, and Congress has since regularly funded the project including appropriations of 1.5 million dollars for fiscal year 1973.3 As of September 1, 1970, the project was approximately two-thirds complete at a cost of 9.8 million dollars. Total project cost is estimated at 15.3 million dollars. While the spillway and outlet works have been substantially constructed, the dam itself remains to be built. At full flood control pool, which will occur on the average of once in twenty-five years, the reservoir created by the dam would inundate 13.5 miles of the Cossatot River and 4,680 acres of surrounding countryside. At top of conservation pool, sometimes referred to as "normal pool," the reservoir would inundate 7.7 miles of river and 1,370 acres of land.

II. HISTORY OF THE LITIGATION

The complaint was filed in the United States District Court on October 1, 1970. The plaintiffs are the Environmental Defense Fund, Inc. (EDF), Ozark Society, Arkansas Audubon Society, Inc., Arkansas Ecology Center, Platt Remmell, Jr., and Russell Harper. EDF is a nonprofit membership corporation organized under the laws of the state of New York. Ozark Society, Arkansas Audubon Society, Inc., and Arkansas Ecology Center are nonprofit membership organizations established under the laws of the state of Arkansas. The two individual plaintiffs are citizens of Arkansas. Initially, the named defendants were the Corps of Engineers of the United States Army,4 Stanley Resor, Secretary of the Army, and General Frederick B. Clark, Chief of Engineers, Corps of Engineers of the United States Army. The action was filed in Judge Eisele's court, and he remained in control of the litigation continuously.

The district court dealt with the case in a series of six memorandum opinions filed over a period of one and one-half years. The first opinion held venue was proper. 325 F.Supp. 728 (Nov. 16, 1970). The second considered jurisdiction over the defendants and the subject matter, standing, and failure of the complaint to state a claim upon which relief could be granted. 325 F.Supp. 732 (Dec. 22, 1970). The third denied a preliminary injunction since plaintiffs had failed to demonstrate danger of imminent harm. 325 F.Supp. 737 (Dec. 22, 1970). In its fourth memorandum opinion, the court found that NEPA was intended to be applied not only to contemplated agency action, but also to ongoing projects.5 325 F.Supp. 741 (Jan. 21, 1971). The case was tried to the court on the merits on February 8, 9 and 10, 1971. In the fifth memorandum opinion, 325 F.Supp. 749 (Feb. 19, 1971), the court found that of the eleven claims for relief set forth in the complaint, only the two premised upon NEPA, claims one and eleven, were sufficient to grant relief. Accordingly, claims two through ten were dismissed.6 The court went on to find that defendants had not complied with the provisions of NEPA which require a detailed statement of the environmental impact of the project and a development of appropriate alternatives to the proposed course of action. Therefore, the court enjoined defendants from proceeding further with the Gillham Dam project unless and until they fully complied with the Act. Both parties appealed to this court, but the appeals were dismissed by agreement on July 22, 1971.

On January 13, 1972, defendants filed with the district court the new environmental impact statement (EIS) and simultaneously filed a motion for summary judgment in which they requested the court to dissolve and set aside the injunction theretofore granted. After an evidentiary hearing on April 27 and 28, 1972, the court approved the new impact statement, granted summary judgment for defendants and dissolved the injunction. The court's supporting opinion, the sixth one filed, is reported at 342 F. Supp. 1211 (May 5, 1972). It is from this final order that plaintiffs bring the present appeal.

Appellants contend that, contrary to the conclusion of the district court, appellees have not sufficiently complied with NEPA for the following reasons: (1) the objectivity of the final EIS was tainted by the alleged bias of its draftor; (2) the final EIS makes a less-than-full disclosure and contains important errors of fact; (3) the defendants have failed to study, develop and describe appropriate alternatives; and (4) the administrative determination by defendants that the dam should be constructed was reviewable by the court on the merits.

III. NATIONAL ENVIRONMENT POLICY ACT OF 1969

In enacting NEPA,7 Congress "resolved that it will not allow federal agencies nor federal funds to be used in a predatory manner so far as the environment is concerned." Named Individual Members of the San Antonio Conservation Society v. Texas Highway Dept., 400 U.S. 968, 978, 91 S.Ct. 368, 373, 27 L.Ed.2d 388 (1970) (Douglas, J., dissenting from denial of certiorari). Thus the Act requires all administrative agencies of the federal government in the process of project development and decisionmaking to consider the environmental impact of their actions. 115 Cong.Rec. (Part 30) 40416 (1969).

Section 101 of NEPA requires the federal government to use "all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources" in order to achieve a wide range of environmental goals. Section 102, on the other hand, contains a series of specific procedural directives to the federal agencies, designed to implement the national environmental policy already established by § 101.8 Among these procedures, § 102(2) (C) requires the preparation of a "detailed statement" discussing five subject areas, including the environmental impact of, and alternatives to, the project. Section 102(2)(D) directs the agency to "study, develop, and describe appropriate alternatives. . ."

IV. ADEQUACY OF THE FINAL ENVIRONMENTAL IMPACT STATEMENT

Appellants argue that the final EIS filed by the Corps falls short of the "detailed statement" required by § 102(2) (C) of NEPA for two reasons: (1) the statement contains an inadequate and inaccurate disclosure of fact; and (2) the statement lacks objectivity either on its face or because of the alleged bias of the District Director responsible for its preparation. We disagree.

The final EIS submitted by the Corps of Engineers in this case was prepared at an alleged cost of approximately $250,000, and is 200 pages in length. Attached to the statement are six appendices containing an additional 1500 pages.9

The main text is divided into eight divisions which describe, respectively, the project, the environmental setting without the project, environmental impact of the proposed action, adverse environmental effects which cannot be avoided should the proposal be implemented, alternatives to the proposed...

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