Save the Bay, Inc. v. U.S. Corps of Engineers, 79-1432

• Decision Date: 24 January 1980
• Docket Number: No. 79-1432,79-1432
• Citation: 610 F.2d 322
• Parties: , 14 ERC 1542, 63 A.L.R.Fed. 437, 10 Envtl. L. Rep. 20,185 SAVE THE BAY, INC., Plaintiff-Appellant, v. The UNITED STATES CORPS OF ENGINEERS, United States Army, Colonel Drake Wilson, and E.I. Du Pont De Nemours and Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 322

610 F.2d 322

14 ERC 1456, 14 ERC 1542, 63 A.L.R.Fed. 437,

10 Envtl. L. Rep. 20,185

SAVE THE BAY, INC., Plaintiff-Appellant, v. The UNITED STATES CORPS OF ENGINEERS, United States Army,

Colonel Drake Wilson, and E.I. Du Pont De Nemours

and Company, Defendants-Appellees.

No. 79-1432.

United States Court of Appeals, Fifth Circuit.

Jan. 24, 1980.

As Modified on Denial of Rehearing and Rehearing En Banc

March 17, 1980.

Robert W. Smith, Biloxi, Miss., Levi, Denham & Russell, Earl L. Denham, Ocean Springs, Miss., for plaintiff-appellant.

White & Morse, Stanford E. Morse, Jr., Gulfport, Miss., David B. Sebree, Legal Dept., E.I. Du Pont De Nemours & Co., Carl B. Everett, Wilmington, Del., James W. Moorman, Asst. Atty. Gen., U. S. Dist. of Justice, Washington, D. C., Robert E. Hauberg, U. S. Atty., L. K. Travis, Asst. U. S. Atty., Jackson, Miss., Dirk D. Snel, Nancy B. Firestone, Attys., Washington, D. C., for defendants-appellees.

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

Before BROWN, TJOFLAT and GARZA, Circuit Judges.

GARZA, Circuit Judge:

Appellant appeals from the District Court's adoption and entry of judgment in conformity with the refusal of the United States Magistrate, acting on behalf of the District Court by consent of the parties, to require the United States Corps of Engineers to prepare an Environmental Impact Statement (EIS) as provided for under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 Et seq. Appellants argue the Court below erred in concluding that the environmental assessment by the district engineer was reasonable and based on substantial evidence, that the activity involved was not a major federal action significantly affecting the quality of the human environment, and that the Corps of Engineers was not required to consider the environmental consequences of the entire project but only the effects of the installation and maintenance of a twenty-four inch outfall pipeline. Appellees argue on appeal that Appellants have no standing to challenge the actions of the Corps of Engineers. For the reasons stated below, we affirm the ruling of the United States Magistrate.

FACTS

At the time this litigation began, the defendant, E.I. Du Pont De Nemours & Co., Inc., proposed to construct and operate a massive titanium dioxide manufacturing facility in Delisle, Mississippi. Pursuant to this plan, Du Pont sought necessary authorization and permits from appropriate state and federal agencies.

On November 21, 1974, Du Pont sought authorization from the defendant, Army Corps of Engineers, to install a twenty-four inch diameter effluent line into the marshlands and Bay of St. Louis. The effluent line would carry approximately two million gallons per day of industrial wastewater On February 3, 1975, the Mississippi Air and Water Pollution Control Commission, acting pursuant to authority delegated to it by the Environmental Protection Agency, issued a National Pollutant Discharge Elimination System (NPDES) permit to Du Pont allowing discharge of the wastewater in accordance with the conditions of the permit.

and discharge it into the Bay of St. Louis. The line would be approximately 2,200 feet in length extending into the Bay and construction would require removal of 610 cubic yards of dredged material from the Bay.

Following solicitation of comments from federal, state and local agencies concerning the proposed pipeline construction permit, the Corps of Engineers announced a public hearing would be held on June 19, 1975, to answer any questions concerning issuing of the pipeline construction permit. In keeping with the Corps' prior determination that only the construction of the pipeline was subject to their regulation, the public notice for the hearing was limited to the installation of the twenty-four inch diameter pipeline and made no mention of consideration of other aspects of the Du Pont plant in the issuance of its permit. On June 19, 1975 the hearing was held and all proponents and opponents were allowed to express their views. The proponents consisted mostly of governmental or business organizations and generally testified as to the favorable economic impact the plant would have. The opponents, consisting mostly of ecological and recreational organizations, testified generally that a potential danger to marine life existed and that an Environmental Impact Statement was necessary.

On July 17, 1975, Colonel Drake Wilson, District Engineer for the Mobile Corps of Engineers, issued a Statement of Findings assessing the impact the proposed activity would have on the environment. The Corps determined there would be no adverse effect on air quality and that water quality would be only temporarily affected. The findings also noted the issuance of the NPDES permit and that the Environmental Protection Agency had no objection to the issuance of the Corps' permit. The statement, also taking into consideration the determinations of the Mississippi Marine Resources Council and the Gulf Coast Research Laboratory, found there would be no significant adverse effect on land use, visual aesthetics, wildlife, sealife, vegetation, or historical interests. Based on the administrative record, Colonel Wilson directed that the permit be issued. The permit only authorized building the pipeline and was subject to several conditions, one of which required that Du Pont have a proper NPDES permit governing the effluent discharge.

The Plaintiff, Save the Bay, Inc., brought suit pursuant to the National Environmental Policy Act (NEPA) against the United States Army Corps of Engineers, the United States Army, Colonel Drake Wilson, Mobile District Office of the Corps of Engineers, and Du Pont seeking declaratory and injunctive relief and monetary damages. The case was referred to the United States Magistrate by the District Judge and thereafter the defendant's Motions for Summary Judgment were granted and judgment was entered December 16, 1977 dismissing the complaint with prejudice.

STANDING

Save the Bay's complaint alleges that it is a nonprofit corporation organized under the laws of the State of Mississippi; that its membership is primarily composed of numerous full-time and part-time residents of Harrison and Hancock Counties in the State of Mississippi; and that its members will be adversely affected economically, aesthetically and environmentally.

Appellee Du Pont urges on appeal that Save the Bay has failed to establish standing under § 10 of the Administrative Procedures Act, 5 U.S.C. § 702. Specifically, Du Pont argues that under Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) and United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973), Save the Bay must allege that its members "use" the area and that the proposed federal action will significantly affect their "use". Du Pont's reliance on Sierra Club v. Morton, supra, is misplaced. Here, the Plaintiff has alleged economic, aesthetic and environmental injury to its members and clearly has gone beyond mere general allegations of grievance on behalf of the public interest. Du Pont's argument, that failure to specifically allege "usage" of the geographic area is fatal to Plaintiff's standing, is without merit. An obvious inference of the English language is that residents of a geographical area "use" that geographical area. An allegation of residence coupled with an allegation of injury caused by federal action affecting the area of that residence clearly demonstrates that the party seeking review is among those injured. We fail to see how the acts of camping, hiking, fishing or sightseeing, in a particular geographic location, held sufficient for standing in United States v. SCRAP, supra, can be considered more relevant for purposes of standing than can the act of residing in a particular geographic location.

REASONABLENESS OF THE CORPS' DECISION

The Court below noted that the standard for review of an agency determination that an Environmental Impact Statement need not be prepared is whether such determination is reasonable. This standard was set forth by this Court in Save Our Ten Acres v. Kreger, 472 F.2d 463 (5th Cir. 1973). If the determination is reasonable and made objectively and in good faith on a reviewable environmental record, the determination must be upheld. The Court below found that the environmental assessment prepared by the Corps completely and fully addressed the possible environmental consequences, that the assessment was based on substantial evidence, and that Corps complied with appropriate federal statutes and regulations. Appellants contend that the Corps' determination was unreasonable. They argue that the testimony and evidence offered in opposition to the building of the pipeline and plant should compel the conclusion that an EIS is required. The Appellants further argue that the Corps abdicated its responsibilities by failing to conduct independent studies and by considering the evaluations of other governmental agencies concerning the pipeline's potential adverse effects.

We do not agree with Appellant's contentions. Without detailing every point and counter-point of evidence before the Corps, it is clear that the Corps had testimony, evidence and comments from individuals and governmental agencies which could lead it to reasonably conclude that an EIS would not be...