LAKE ERIE, ETC. v. US Army Corps of Engineers

• Decision Date: 23 November 1981
• Docket Number: Civ. A. No. 79-110 Erie.
• Citation: 526 F. Supp. 1063
• Parties: LAKE ERIE ALLIANCE FOR the PROTECTION OF the COASTAL CORRIDOR, Downwind Neighbors, George E. Limberty, John McNicol, Local 1330, United Steelworkers of America Local 1397, United Steelworkers of America Local 1462, United Steelworkers of America Tristate Conference of the Impact of Steel on Ohio-Pennsylvania-West Virginia, Concerned Citizens of Conneaut, Earl Weaver, Tom and Mary Meara, Gerald Specht and Chuck Gaukel, Plaintiffs, v. U. S. ARMY CORPS OF ENGINEERS Clifford L. Alexander, Jr., Lt. Gen. John W. Morris, Daniel D. Ludwig, George P. Johnson, Paul G. Leuchner, Defendants, and U. S. Steel Corporation, Intervenor.
• Court: U.S. District Court — Eastern District of Pennsylvania

526 F. Supp. 1063

LAKE ERIE ALLIANCE FOR the PROTECTION OF the COASTAL CORRIDOR, Downwind Neighbors, George E. Limberty, John McNicol, Local 1330, United Steelworkers of America Local 1397, United Steelworkers of America Local 1462, United Steelworkers of America Tristate Conference of the Impact of Steel on Ohio-Pennsylvania-West Virginia, Concerned Citizens of Conneaut, Earl Weaver, Tom and Mary Meara, Gerald Specht and Chuck Gaukel, Plaintiffs, v. U. S. ARMY CORPS OF ENGINEERS Clifford L. Alexander, Jr., Lt. Gen. John W. Morris, Daniel D. Ludwig, George P. Johnson, Paul G. Leuchner, Defendants and U. S. Steel Corporation, Intervenor.

Civ. A. No. 79-110 Erie.

United States District Court, W. D. Pennsylvania.

November 23, 1981.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Brent English, Cleveland, Ohio, for Lake Erie Alliance for the Protection of the Coastal Corridor.

Staughton Lynd, Youngstown, Ohio, for TriState Conference.

James Denney, Youngstown, Ohio, for Locals 1330, 1397 and 1462, USWA and John McNicol.

Michael Healey, Pittsburgh, Pa., for USSW of America, Local U. 1397 of Homestead, Pa.

Thomas Kennedy, Pittsburgh, Pa., for Lake Erie Alliance, Downwind Neighbors and Concerned Citizens of Conneaut.

Craig McKay, Pittsburgh, Pa., for U. S. Army Corp. of Engineers, Clifford Alexander, John W. Morris, Daniel D. Ludwig, George P. Johnson and Paul G. Leuchner.

Thomas Wright, Pittsburgh, Pa., for U. S. Steel Corp., defendant-intervenor.

OPINION

WEBER, Chief Judge.

On July 19, 1979, plaintiffs filed a complaint for declaratory and injunctive relief alleging numerous violations of federal laws in connection with the issuance of construction permit No. 77-492-3 granted to United States Steel Corporation (U.S. Steel) by the United States Army Corps of Engineers for the construction of piers in Lake Erie, dredging, the installation of intake and discharge structures into its waters, and diversion of a stream leading into Lake Erie, all in connection with a proposal to construct a steelmill at this site. Plaintiffs are comprised of environmentally concerned organizations, individuals living near the site of the proposed project, unemployed steelworkers and unions affiliated with the United Steelworkers of America. Named defendants include the United States Army Corps of Engineers (the Corps) and five officers of the United States. Jurisdiction is predicated on, inter alia, 28 U.S.C. § 1331(a) and the Administrative Procedure Act, 5 U.S.C. § 701, et seq. (hereinafter the APA). U.S.Steel formally intervened on September 10, 1980.

The case is presently before us on cross motions for summary judgment. Arguments were heard orally before the late William W. Knox, District Judge, on July 1, 1981, and voluminous briefs, reply briefs and appendices have been submitted by both sides, in addition to the draft environmental impact statement (EIS), the final EIS, and portions of the administrative record. Upon the death of Judge Knox, the case was transferred to me, and although I have not been involved with this litigation from its incipiency, nor heard the arguments of counsel, the issues involved and the positions of the parties are presented sufficiently on paper for me to rule on the motions.

Background

On March 2, 1977, at a meeting in Pittsburgh, Pennsylvania, U.S.Steel announced a plan to construct a steelmaking facility on a 2,800 acre site astride the Ohio-Pennsylvania border near Conneaut, Ohio. At the meeting, representatives of U.S.Steel submitted to the Corps an application for a Department of Army Permit authorizing extension of the privately owned East Entrance Pier of Conneaut Harbor, construction of an unloading pier, dredging of an area near the pier, installation of intake and discharge structures in Lake Erie, and diversion and filling of a lower portion of Turkey Creek. At this time U.S.Army Brigadier General Moore designated the Corps, Buffalo, New York District Office, as lead agency for preparation of an EIS for the project.

The Corps immediately assembled a Technical Team composed of representatives of the Corps, the United States Environmental Protection Agency (U.S. EPA) the State of Ohio, the Commonwealth of Pennsylvania, the United States Fish and Wildlife Service, the Federal Regional Counsel, and the National Marine Fisheries Service, to assist in the identification and evaluation of environmental issues, development of on-site sampling studies, and analysis of environmental data used in the EIS. The team was also to provide technical expertise in the areas of air quality, water quality, land use planning, fish and wildlife resource management, and a variety of other related fields. The Technical Team was to evaluate all data furnished to it by U.S.Steel and advise U.S.Steel and its prime consultant, Arthur D. Little Company (A.D. Little), on the types of information necessary to prepare an EIS. To facilitate communications between the Technical Team, U.S.Steel and A.D. Little, representatives of both private companies were invited to sit on the Technical Team.

The Corps issued public notice of the proposed project on March 11, 1977 and commenced a program of meetings, workshops, public hearings, environmental studies, and public comment periods, culminating in the filing of the initial environment assessment by U.S.Steel on July 5, 1978. In response to the environment assessment by U.S.Steel and A.D. Little, the Corps conducted environmental studies, retained consultants, held public meetings, symposiums and workshops, evaluated and addressed public comments, and compiled thousands of documents. These efforts resulted in the draft EIS which the Corps filed as a matter of public record on May 23, 1978. Public comments on it were received for four months thereafter.

The Corps next undertook the production of the final EIS, compiling more studies, holding further public hearings, and receiving additional comments. On April 26, 1979, the Corps submitted the final EIS as a matter of public record. Almost two months later, on June 18, 1979, the Corps issued a construction permit to U.S.Steel. Undergirding the decision of the Corps to issue a permit to U.S.Steel are 42,000 pages of documents, constituting an administrative record more than sixteen feet thick.

One month later, this action was commenced with the filing of a fifty-five page complaint for declaratory and injunctive relief. An amended complaint, of similar substance and length, was filed on November 23, 1979. The amended complaint is in seven counts, comprised primarily of challenges to the adequacy of the final EIS under the National Environmental Policy Act of 1969, § 2, 42 U.S.C. § 4321, et seq. (NEPA), violations of the Clean Water Act, 33 U.S.C. § 1251, et seq., violations of the Fish and Wildlife Coordination Act, 16 U.S.C. § 661, et seq., the Migratory Bird Act, 16 U.S.C. § 701, et seq., and the APA. Plaintiffs seek a judgment declaring that the EIS on the Lakefront project is inadequate and injunctive relief rescinding permit 77-492-3 until a new EIS is prepared. Plaintiffs also seek injunctive relief rescinding the certification under § 401 of the Clean Water Act.

Defendants move for summary judgment on the grounds that the Corps' exhaustive two-year preparation of the EIS and concommitant issuance of permit No. 77-492-3 was completely in accordance with the law and in no way arbitrary, capricious or otherwise an abuse of discretion. Plaintiffs responded to defendants motion with a motion for partial summary judgment and objecting to the entry of summary judgment on all other issues.

Earlier in this litigation while ruling on a discovery motion, the court recognized that its scope of review is limited to the administrative record, unless it appears from the record that inadequate consideration has been given to matters raised. Lake Erie Alliance for the Protection of the Coastal Corridor, et al. v. United States Army Corps of Engineers, et al., Civil Action No. 79-110 Erie (W.D.Pa. Feb. 5, 1981).

The guidelines for our review are more succinctly set forth in Strycker's Bay Neighborhood Council v. Karlen, 444 U.S. 223, 227, 100 S.Ct. 497, 500, 62 L.Ed.2d 433 (1980) where the Supreme Court reiterated earlier holdings that NEPA imposes upon agencies duties that are "essentially procedural" and cautioned that once an agency has made a decision subject to NEPA's procedural requirements, the only role for a court is to insure that the agency has considered the environmental consequences. The court is not to interject itself within the area of agency discretion. Id. Therefore, the focal point for our review is the administrative record already in existence and not some new record made initially in the reviewing court. Camp v. Pitts, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973).

Summary judgment may be properly granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment is warranted only on a clear showing that no genuine issue of any material fact remains for trial. Ely v. Hall's Motor Transport Co., 590 F.2d 62, 66 (3d Cir. 1978). Moreover, the existence of disputed issues of material fact should be ascertained by resolving all doubts against the moving party. Id. However, in light of the limited role of the court in reviewing the administrative record already in existence, this is the type of case which is well suited for summary judgment.

NEPA Issues

Turning to the substantive elements of plaintiffs' claims as they appear in the complaint, the first cause of action alleges that preparation of the EIS violated the requirements of NEPA in numerous instances. Several NEPA violations serve as the basis for distinct counts in the complaint and will be...