Sierra Club v. Froehlke

• Decision Date: 27 March 1986
• Docket Number: Civ. A. No. 71-H-983.
• Citation: 630 F. Supp. 1215
• Parties: SIERRA CLUB, et al. v. Robert F. FROEHLKE, et al.
• Court: U.S. District Court — Southern District of Texas

630 F. Supp. 1215

SIERRA CLUB, et al. v. Robert F. FROEHLKE, et al.

Civ. A. No. 71-H-983.

United States District Court, S.D. Texas, Houston Division.

March 25, 1986.

As Amended March 27, 1986.

COPYRIGHT MATERIAL OMITTED

Rayburn Berry, Houston, Tex., for plaintiffs.

Frances Stacy, Asst. U.S. Atty., Houston, Tex., for Defendants.

Warren G. Clark, Jr., Anahuac, Tex., for intervenor Chambers-Liberty.

James H. Keahey, Austin, Tex., for intervenor Trinity River.

Charles L. Berry, Sharon Mattox, Richard Milvenan, Vinson & Elkins, First City Tower, Houston, Tex., for intervenor City of Houston.

                                             INDEX
                                                                              Page
                      I BACKGROUND OF THE LITIGATION ........................ 1217
                     II FACTUAL OVERVIEW AND COURT RATIONALE FOR DENYING
                        DEFENDANTS' PRAYER FOR RELIEF ....................... 1218
                    III THE CONTENTIONS OF THE CORPS ........................ 1220
                        A. Corps Actions to 1983—
                             Congressional Action 1983 ...................... 1221
                        B. Corps Actions 1983-1985 .......................... 1221
                        C. Congressional Action 1985 ........................ 1222
                     IV FUNCTION OF THE MULTIPLE ACTORS ..................... 1222
                        A. Court Role—Standard of Review .............. 1222
                        B. Agency Role ...................................... 1224
                        C. Congressional Role ............................... 1224
                      V REVIEW OF THE CORPS NEPA PROCEDURE .................. 1225
                     VI CORPS LACK OF GOOD FAITH ............................ 1227
                    VII CONGRESSIONAL ACTION 1983 VS. 1985 .................. 1231
                   VIII CONCLUSION .......................................... 1233
                

MEMORANDUM AND ORDER

CARL O. BUE, Jr., District Judge.

Before the Court are the Federal Defendants' Motion for Dissolution or Modification of Injunction Under Rule 60(b)(5) FRCP and For Dismissal, and Intervenors Trinity River Authority of Texas, City of Houston, and Chambers-Liberty Counties Navigation District's Motion to Dissolve Injunction wherein all parties are seeking termination or alteration of the injunction of 1973. The Court held a hearing to determine the sufficiency of Defendants' motions, the first segment of 3 days commencing on August 27, 1985 and the concluding portion of 5 days commencing on November 19, 1985. See Sierra Club v. United States Army Corps of Engineers, 609 F.Supp. 1052 (S.D.N.Y.1985). After careful consideration of the relevant law, the memoranda of all parties, the administrative record, as well as the unusual and complex factual and procedural background surrounding this protracted litigation, the Court is of the opinion that the request by the Defendants and Intervenors should be denied, and that the injunction imposed in 1973 should remain in force until full compliance with the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. has been effectuated.

I. BACKGROUND OF THE LITIGATION

The purposes of the initial authorization by Congress in 1962 to construct the Wallisville project were for salinity control, water supply, fish and wildlife enhancement, navigation, and recreation. Thereafter, in 1966 the Corps of Engineers (hereinafter referred to as the Corps) began construction.¹ Subsequently, Congress passed NEPA² which was to apply retroactively to projects under construction. Sierra Club v. Callaway, 499 F.2d 982, 988 (5th Cir. 1974) (hereinafter referred to as Wallisville I). As a result, the Corps sought to comply and circulated a DEIS in 1970.³ However, before a FEIS could be drafted, Plaintiffs filed the lawsuit in Wallisville I seeking to enjoin further construction of the Wallisville project due to claimed NEPA violations. After an extensive hearing and a careful examination of the paucity of law interpreting NEPA at that time, as well as an extensive review of the legislative history of the statute, this Court granted the Plaintiffs' request for an injunction, holding that the EIS was insufficient. See Sierra Club v. Froehlke, 359 F.Supp. 1289 (S.D.Tex.1973), rev'd and remanded, 499 F.2d 982 (5th Cir.1974).⁴

The Fifth Circuit reversed certain portions of this Court's ruling but left the injunction intact pending submission of a SEIS on the issues determined inadequate in the original EIS. 499 F.2d at 994. Moreover, the Circuit Court stated that "the Corps need not submit a new impact statement on the Wallisville project, but will submit a revised or supplemental statement. The sufficiency of such statement ... will ... be ... considered on its own merits." Id. "The statement will be adjudged anew on the basis of its compliance with Sec. 102 tested by its `good faith objectivity rather than subjective impartiality, ...'" Id., quoting Environmental Defense Fund, Inc. v. Corps of Engineers of the United States Army, 470 F.2d 289, 296 (8th Cir.), cert. denied, 412 U.S. 931, 93 S.Ct. 2749, 37 L.Ed.2d 160 (1972). Moreover, "on another trial plaintiffs will have the burden of establishing their claims by a preponderance of the evidence ..." 499 F.2d at 992. Thereafter, the Corps filed a combined draft EIS-PACR in July, 1979 with the EPA which was circulated to the agencies and individuals.⁵

II. FACTUAL OVERVIEW AND COURT RATIONALE FOR DENYING DEFENDANTS' PRAYER FOR RELIEF

In the proposed findings of fact and conclusions of law submitted by all Defendants, conclusion of law 22 reads as follows:

Congress is entitled to legislate on any basis that it desires, and a federal court may not invalidate legislation because it believes Congress acted on erroneous data.

This is a highly unusual case involving NEPA which acquires significance in a number of ways, one of which is the manner in which standard NEPA procedures were not followed by the Corps or the Congress. Although Defendants vigorously contend that their conduct, while admittedly somewhat irregular, meets the required level of statutory procedural integrity to satisfy any judicial review, the Plaintiffs assert otherwise. They view the above proposed conclusion of law as completely inapplicable to NEPA, a Congressional statute enacted into law in 1969. Instead, it is argued that when Congress passes a law, the Corps and the Congress must abide by it and not subvert its purpose or spirit relevant to environmental concerns. This overview examines the series of events, the legal arguments, and the Court's decision. The balance of the opinion is a section by section analysis of the critical legal issues involved.

When the first of two hearings commenced pursuant to Federal Defendants' Motion for Dissolution or Modification of Injunction, this Court fully anticipated that the evidence would focus primarily on issues concerning whether or not the Corps' EIS-PACR could pass a substantive NEPA review. The Fifth Circuit Court of Appeals had reversed certain portions of this Court's ruling, but left the injunction in place pending submission of a SEIS on the issues found to be inadequate in the original EIS. More specifically, the appellate court felt that a revised or supplemental impact statement would suffice. Corps compliance with NEPA would be tested by good faith objectivity among other legal criteria, and this Court would simply review the evidence to ensure Corps' compliance with all aspects of a NEPA review, including procedural integrity of the agency's consideration of environmental factors addressed in the SEIS.

Pursuant to such mandate the Corps filed a combined draft EIS-PACR in July, 1979, and in accordance with their own internal regulations which were implemented to effectuate NEPA, circulated the document to agencies and individuals for comment. After digesting the comments solicited, the Corps modified the EIS-PACR and forwarded it to the Division Engineer of the Southwestern Division where the conclusions and recommendations were approved. The next step was transmittal of the EIS-PACR to BERH which in March, 1982 forwarded the proposal to OCE. Here certain policy decisions were to be considered. If the original project authorized by the Congress and the newly modified plan were essentially the same, the Chief of Engineers had the authority to reauthorize the project without obtaining Congressional approval again. Here the EIS-PACR languished for a year without approval. In order to aid the Chief of Engineers in determining the scope of his discretionary authority with respect to this project, the OCE requested the Corps to prepare a SIPACR, that is, a document containing supplemental information to the EIS-PACR.

It is at this point that matters became murky, and a departure from normal NEPA procedures occurred. After the SIPACR was prepared by the Corps in July, 1982, it was not sent back for full agency review and comments, and considerable time elapsed. In March 1983, OCE received a legal opinion from its own counsel that it would be improper for the Chief of Engineers to exercise his discretion and approve the modified project because the SIPACR was new and substantially different from the EIS-PACR.

Meanwhile, Congress had become restless during the delay. Concurrently with the Corps' preparation of the SIPACR in July 1982, the local sponsors of Wallisville were pressuring a prominent local Congressman to obtain approval of the project. Also in March 1983, at about the time the OCE received a legal opinion from its counsel advising against administrative approval of the project, the Congressman was requesting the Energy and Water Subcommittee to include some clarifying language in the 1983 supplemental appropriations bill on the project. In July 1983, Congress passed the bill which contained language referencing and relying upon SIPACR which had never been subject to the NEPA administrative review process in any manner, and the EIS-PACR which remained stalled and only partially processed at the OCE administrative level.

Returning once more to the Corps, it is openly conceded that...