Sierra Club v. Hassell
| Decision Date | 13 February 1981 |
| Docket Number | No. 80-7565,80-7565 |
| Citation | 636 F.2d 1095,15 E.R.C. 1666 |
| Parties | , 11 Envtl. L. Rep. 20,227 SIERRA CLUB et al., Plaintiffs-Appellants, v. John S. HASSELL, Jr., etc., et al., Defendants-Appellees. . Unit B |
| Court | U.S. Court of Appeals — Fifth Circuit |
Larry T. Menefee, Mobile, Ala., Sarah Chasis, Natural Resources Defense Council, Inc., New York City, Frederick S. Middleton, III, Sierra Club Legal Defense Fund, Lee Bishop, Washington, D. C., for plaintiffs-appellants.
William A. Kimbrough, Jr., U. S. Atty., Mobile, Ala., Jerry Jackson, Cleveland Thornton, Lois J. Schiffer, Attys., Dept. of Justice, Lands Div., Appellate Sec., Washington, D. C., for John S. Hassell, Jr., et al.
Charles A. Graddick, Atty. Gen., Larry U. Sims, Champ Lyons, Jr., Sp. Asst. Attys. Gen., Mobile, Ala., for Fob James, Governor of Ala. and Rex Rainer, Highway Director of Ala.
Larry U. Sims, Champ Lyons, Jr., Mobile, Ala., for intervenor Dauphin Island Property Owners Assn. et al.
Appeal from the United States District Court for the Southern District of Alabama.
Before SIMPSON, RONEY and THOMAS A. CLARK, Circuit Judges.
In this action appellants seek to enjoin construction of a federally-funded bridge which will connect Dauphin Island to the Alabama mainland. The original bridge was destroyed in 1979 by Hurricane Frederic. The district court denied injunctive relief, holding that appellees complied with the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq. (1970) (NEPA), and with Executive Orders 11988 and 11990. We affirm.
Dauphin Island is a barrier island approximately four miles off the coast of Alabama. Prior to the hurricane, the island was connected to the mainland by the Dauphin Island Bridge, which was constructed in 1956 solely with state funds. Dauphin Island is partially developed, with a population of several hundred permanent and part-time residents and a number of commercial and military establishments. It also contains substantial wetlands, bird and wildlife habitats, and sites of archaeological importance.
On September 12, 1979, Hurricane Frederic struck the Alabama coast. It destroyed the Dauphin Island Bridge and inflicted severe damage to many homes and facilities on the island. The President of the United States visited the area immediately after the hurricane and declared it a major disaster area. Several days later, the Alabama State Highway Department requested federal aid to restore damaged roads and bridges.
During the remainder of September, several meetings were held among various federal and state agencies, including the Federal Highway Administration (FHWA), the Coast Guard, the Army Corps of Engineers, and the Alabama State Highway Department, to discuss reconstruction of the Dauphin Island Bridge as well as several possible alternative measures. An interagency committee of state and federal environmental agencies was established to offer advice on environmental matters. By the end of the month, a decision was reached to rebuild the bridge. On January 3, 1980, the Coast Guard issued the construction permit and the FHWA formally authorized funds.
Appellants, the Sierra Club and the Natural Resources Defense Council, private environmental groups, filed this action on March 24 against several of the federal and state agencies involved. Standing to bring this action has not been questioned by the defendants on appeal. The principal defendants, appellees here, are the Federal Highway Administration and the Coast Guard. On appeal, as in the district court, appellants challenge the failure of the FHWA and the Coast Guard to prepare an environmental impact statement, which they allege is required by NEPA. They also contend the agencies failed to comply with Executive Orders 11988 and 11990, which impose, respectively, special procedural requirements for development in floodplains and wetlands.
NEPA requires federal agencies to prepare an environmental impact statement for all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C.A. § 4332(2)(C). An impact statement is not required for a non-major action or a major action which does not have a significant impact on the environment. The Federal Highway Administration determined the project to rebuild the Dauphin Island Bridge was not a "major action" as defined by NEPA and the implementing regulations, and thus did not require an impact statement. The Coast Guard concurred.
These agency determinations are tested in court under a "reasonableness" standard. A reviewing court is to review the administrative records as well as other evidence to determine whether the agencies adequately considered the values set forth in NEPA and the potential environmental effects of the project before reaching a decision on whether an environmental impact statement was necessary. If the agencies engaged in this analysis and reasonably concluded on the basis of their findings that an impact statement was not required, their determinations will be upheld. See, e. g., Save the Bay, Inc. v. U.S. Corps of Engineers, 610 F.2d 322 (5th Cir. 1980); Save Our Ten Acres v. Kreger, 472 F.2d 463 (5th Cir. 1973).
Appellants contend the decision of the FHWA and the Coast Guard not to prepare an environmental impact statement was unreasonable. They argue the agencies failed to engage in an adequate analysis of potential adverse environmental effects of the new bridge, possible alternatives to reconstruction, and mitigation measures. We agree with the district court, however, that the agencies sufficiently considered these factors. The record, which contains voluminous administrative records, depositions and affidavits, and a transcript of the testimony before the district court, reveals extensive interagency discussion of environmental matters before the decision to rebuild the bridge was reached. The agencies determined that to reconstruct the bridge on essentially the same alignment as the old bridge would not measurably alter the environment of Dauphin Island. In fact, a proposal to build the bridge in a different location was rejected because of the potential harm to oyster beds which might have been caused by the dredging.
The agencies also considered in detail alternatives to reconstruction, including taking no action to rebuild the bridge, air service, and permanent ferry service. Each was rejected for a variety of reasons. For example, ferry service, the alternative most strongly proposed by appellants, was rejected not only as prohibitively expensive and impractical, but also for its potential adverse environmental effects.
The mitigation measures which appellants argue might have been taken include restrictions on the island's use and development. Dauphin Island, however, is presently protected by laws which restrict its development and use, including permit requirements for various types of construction, regulations on the use of fish habitats surrounding the island, and the prohibition of any development on sand dunes. At least ten government agencies share responsibility for overseeing these laws. Appellants have failed to establish why this regulatory scheme is insufficient to protect against adverse environmental effects resulting from increased development or otherwise.
Appellants also contend the agencies violated their own regulations in determining that an environmental impact statement was not necessary. They argue that the regulations implementing NEPA, relied upon by the FHWA and the Coast Guard, call for the preparation of an environmental impact statement for the construction of a replacement bridge.
A major federal action, which requires an environmental impact statement under NEPA, is defined in the FHWA regulations as an action "likely to precipitate significant foreseeable alterations" in the environment. 23 C.F.R. § 771.9(d) (emphasis supplied). Examples given in the regulations clearly contemplate as major actions highway projects which provide new or substantially improved access to an area which may have a significant environmental effect. Id. An environmental impact statement is not required for a "non-major action." Although this term is not specifically defined in the regulations, examples of non-major actions are provided, and they encompass reconstruction or repair projects as well as minor projects. 23 C.F.R. § 771.9(e). The FHWA had classified the project to rebuild the bridge as a non-major action.
The implementing regulations followed by the Coast Guard also require environmental impact statements only for projects significantly altering the environment. 40 C.F.R. § 1500 et seq. (1978). These regulations, issued by the Council on Environmental Quality, state that an environmental impact statement is not required for a "categorical exclusion," which is similar to a "non-major" project. 40 C.F.R. §§ 1508.4; 1508.8. After conducting its own environmental investigation, the Coast Guard agreed with the FHWA that an impact statement was not necessary and classified the project as a categorical exclusion.
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