Environmental Defense Fund v. Marsh, 80-3915

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation651 F.2d 983
Docket NumberNo. 80-3915,80-3915
Parties, 11 Envtl. L. Rep. 21,012 ENVIRONMENTAL DEFENSE FUND and Louisville & Nashville Railroad Company, Plaintiffs-Appellants, and National Audubon Society, et al., Plaintiffs-Intervenors-Appellants, v. John O. MARSH, Jr., et al., Defendants-Appellees, and Tennessee-Tombigbee Waterway Development Authority, et al., Defendants- Intervenors-Appellees. . Unit A
Decision Date13 July 1981

Page 983

651 F.2d 983
16 ERC 1233, 11 Envtl. L. Rep. 21,012
ENVIRONMENTAL DEFENSE FUND and Louisville & Nashville
Railroad Company, Plaintiffs-Appellants,
National Audubon Society, et al., Plaintiffs-Intervenors-Appellants,
John O. MARSH, Jr., et al., Defendants-Appellees,
Tennessee-Tombigbee Waterway Development Authority, et al.,
Defendants- Intervenors-Appellees.
No. 80-3915.
United States Court of Appeals,
Fifth Circuit.
Unit A
July 13, 1981.

Page 986

Jon T. Brown, Stephen E. Roady, Robert N. Steinwurtzel, Washington, D. C., Joseph L. Lenihan, Louisville, Ky., James T. B. Tripp, New York City, for plaintiffs-appellants.

Lawrence A. G. Moloney, Richard A. Fine, Marta W. Berkley, Civ. Div., Dept. of Justice, Washington, D. C., H. M. Ray, U. S. Atty., Oxford, Miss., for defendants-appellees.

James Hugh Ray, Tupelo, Miss., Hunter M. Gholson, Columbus, Miss., Alfred P. Holmes, Jr., Mobile, Ala., for defendants-intervenors-appellees.

Appeal from the United States District Court for the Northern District of Mississippi.

Before SKELTON *, Senior Judge, and RUBIN and REAVLEY, Circuit Judges.

REAVLEY, Circuit Judge:

The Environmental Defense Fund and other plaintiffs brought suit against John O. Marsh, Jr., in his capacity as Secretary of the Army, based on the claim that the Army Corps of Engineers has violated several statutes and regulations in the course of planning and constructing a major water project, the Tennessee-Tombigbee Waterway. The district court granted the government's motion for summary judgment, and the plaintiffs appealed. We affirm in part and reverse in part.

I. The Background Facts

A. The History and Design of the TTW Before 1971

The Tennessee-Tombigbee Waterway ("the TTW") is a major navigational project of the Army Corps of Engineers ("the Corps"). The TTW extends 253 miles across portions of the states of Mississippi and Alabama to serve as a link between the Tennessee River in the north and an existing waterway to the south, the Black Warrier-Tombigbee Waterway ("BWTW"), which leads into the tidewater port of Mobile, Alabama. The TTW will thus be the completing link of a continuous waterway from the Tennessee, upper Mississippi, and Ohio Valleys to the Gulf of Mexico. The territorial limits of the TTW itself, however, extend only northward from Demopolis, Alabama (the northern terminus of the BWTW), to Pickwick Pool in the Tennessee River, near the common border of Tennessee, Alabama, and Mississippi. The TTW was first authorized by Congress in 1946, but essentially lay dormant until 1965,

Page 987

when Congress authorized a re-evaluation of the economics of the project. 1 Consequently, the Corps' district engineer at Mobile completed an economic re-study of the TTW on June 30, 1966 ("the 1966 study").

After public comment based on the 1966 study, the Secretary submitted a proposal to Congress in 1969 that allocated funds for pre-construction planning of the TTW. In 1971, the Corps prepared and filed an environmental impact statement ("EIS") that was also based on the 1966 study, pursuant to the requirements of the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. With that EIS before it, Congress appropriated the first funds for construction. 117 Cong.Rec. 28478-28488 (1971). See also, EDF v. Corps of Engineers, 492 F.2d 1123, 1140 (5th Cir. 1974). The EDF and the Committee for Leaving the Environment of America Natural ("CLEAN"), both plaintiffs in the present action, challenged the sufficiency of this EIS in 1971, but the district court upheld the EIS, and this court affirmed. EDF v. Corps of Engineers, 348 F.Supp. 916 (N.D.Miss.1972), aff'd, 492 F.2d 1123 (5th Cir. 1974) ("EDF I").

B. The Design and Economics of the TTW After 1971

Major construction projects usually change in design, cost, scope, and impact over the years required for development. In fact, the original EIS for the TTW anticipated major changes in the project and specifically stated that the EIS was only

the first of three phases of a comprehensive environmental study of the project area .... The second phase of the study will consist of a detailed evaluation of the impacts identified during the first phase and will be correlated with advanced engineering and design work for the project. Alterations in design will be made to increase the gains and mitigate the losses. In addition, the environmental statement will be updated prior to the construction of major segments of the project.

Environmental Statement, Tennessee-Tombigbee Waterway, p. 2 (March 1971) (emphasis added).

It is not important for the purposes of this case to trace the origin and motive behind each change in the design and economics of the TTW after the 1971 EIS was filed. But by late 1974, the Corps had initiated design changes costing about $330 million and inflation had added a like amount to project costs. As a result, the TTW was projected to cost more than three times the amount originally submitted to Congress. Faced with such grim statistics, the Corps decided to commission a new economic analysis of the waterway, which was published in 1976. That study ("the 1976 study") publicly revealed that the TTW would depart from the 1971 designs and economic projections in the following ways:

1) Traffic on the waterway in the initial year of operation will be 350% of the figure projected in 1971 (28 million tons as compared to 8 million tons), will move 90% from north to south (as compared to the former projection that 80% would move from south to north), and will carry a total of 18 million tons of coal (as compared to the former projection of 2 million tons);

2) Total land use for the project will be 150% of the figure projected in 1971 (105,000 acres as compared to 70,000 acres);

3) A 45-mile section of the canal has been changed in design from a "perched canal," created by artificial levees on both sides, to a "chain of lakes," using an artificial levee on one side and a natural barrier of hills on the other to create a larger body of navigable water, which will also serve as a better reservoir for locks. This design will allegedly flood an additional 5,000 acres and waterlog an additional 50,000 acres;

4) A navigation channel that originally was to follow the natural course of the Tombigbee River has been straightened

Page 988

by artificial cutoffs that will isolate 21 miles of the river's previous channel; and

5) Excavations in one section of the project will create the need for disposal of 9 million cubic yards more spoil than was projected in the 1971 EIS.

The design of the TTW was changed in one additional way after the 1976 study. Prior to 1975, the Corps had assumed that it could, without congressional authorization, remove certain barriers from the BWTW to accommodate two-way traffic from the larger 8-barge tows that the TTW will be able to carry. 2 A 1974 decision of the United States District Court for the District of Columbia, however, held that the Corps did not have authority to make such improvements without congressional authorization. Atchison, Topeka & Santa Fe RR Co. v. Callaway, 382 F.Supp. 610 (D.D.C.1974). See EDF v. Alexander, 467 F.Supp. 885, 896 n.5 (N.D.Miss.1979). Based on this ruling, the Corps decided in 1975 to sever the authorized TTW project and pursue the improvements to the BWTW as a separate project, which is still under study and has not been proposed to Congress. That segmentation decision was made public in the 1976 study. As a practical result, total long-distance traffic volume on the TTW will be limited by the 6-barge tows and slower speeds that the unimproved BWTW can currently accommodate, placing an effective traffic limit on the TTW of 29 million tons annually. 3 If and when the BWTW is improved, the TTW may eventually handle up to 55 million tons a year by 1995. Since 1976, the Corps has chosen to evaluate the cost-benefit ratio of the TTW on the basis of the 29 million ton limit, and all submissions to Congress have been based upon that limitation.

In spite of the express statement in the 1971 EIS that it would be updated prior to construction of any major segment, the Corps has not filed a supplemental EIS in relation to any of the changes discussed above. Because NEPA does not contain any explicit requirements for the supplementation of an EIS, the Corps believed that it was governed only by its own regulations in this matter. 4 At the time of these decisions, the Corps' regulations required the preparation of a supplemental EIS, involving all the formalities required

Page 989

of any EIS under NEPA, 5 in either of the following situations:

(1) If the final environmental statement previously filed clearly failed to comply with the requirements of NEPA: e. g. failed to discuss alternatives or failed to disclose the environmental impacts of the proposed action, or if there has been a major change in the plan of development or method of operation of the proposed action, (or)

(2) Whenever the final environmental statement on file becomes deficient because certain environmental effects of the project were not discussed or design features or project purposes were modified significantly subsequent to the filing of the original environmental statement.

33 C.F.R. § 209.410(g)(1) & (2). 6 But the same regulation allows the filing of a more informal document in relation to less significant changes:

(3) Whenever it is necessary only to clarify or amplify a point of concern raised after the final environmental statement was filed with CEQ (Council on Environmental Quality) (and such point of concern was considered in making the initial decision) or if comments on the final environmental statement are received from Federal, State or local governmental agencies or the public, the clarification, amplification or response to the comments received shall be prepared and filed with CEQ. No waiting periods are required....

33 C.F.R. § 209.410(g)(3).


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