Sierra Club v. Marsh

• Decision Date: 01 November 1989
• Docket Number: Civ. No. 88-0116-B.
• Citation: 744 F. Supp. 352
• Parties: SIERRA CLUB, et al., Plaintiffs, v. John O. MARSH, Jr., et al., Defendants.
• Court: U.S. District Court — District of Maine

744 F. Supp. 352

SIERRA CLUB, et al., Plaintiffs, v. John O. MARSH, Jr., et al., Defendants.

Civ. No. 88-0116-B.

United States District Court, D. Maine.

November 1, 1989.

Edward F. Lawson, Weston, Patrick, Willard & Redding, Boston, Mass., John C. Page, Zuckerman, Avaunt & Devine, Gray, Me., for plaintiffs.

Charles J. Sheehan, Daniel S. Goodman, U.S. Dept. of Justice, Land & Natural Resources Div., Environmental Defense Section, Washington, D.C., for Marsh, Rhen, Burnley and Richardson.

Michael M. Dubose, Asst. U.S. Atty., Bangor, Me., for U.S.

Thomas G. Reeves, Janet Myers, Chief Counsel, Legal Div., Maine Dept. of Transp., Augusta, Me., John Quarles, Anthony C. Roth, Leslie S. Ritts, Washington, D.C., for Maine Dept. of Transp.

MEMORANDUM OPINION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT ON NEPA CLAIMS

CYR, Chief Judge.

The plaintiffs, Sierra Club and two of its members, request declaratory and injunctive relief suspending federal permits issued for the construction of a marine dry cargo terminal on Sears Island in Penobscot Bay. Plaintiffs contend that permits issued by the United States Army Corps of Engineers the Corps and by the United States Coast Guard the Coast Guard, as well as Federal Highway Administration FHwA funding, must be suspended due to failure to comply with the Clean Water Act CWA, 33 U.S.C. § 1251 et seq., the National Environmental Policy Act NEPA, 42 U.S.C. § 4321 et seq., and section 9 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 401. The court now considers the cross-motions for summary judgment on the NEPA claims.

I. BACKGROUND

The Maine Department of Transportation MDOT proposal to develop a marine dry cargo terminal on Sears Island has been the subject of protracted litigation.¹ The court observed the most recent installment in the litigation on May 10, 1989, by granting plaintiffs' motion for preliminary injunctive relief on the basis of three of their NEPA claims. See Sierra Club v. Marsh, 714 F.Supp. 539 (D.Me.1989) Sierra Club IV. The court found a likelihood of irreparable injury from inadequate compliance with the NEPA requirements relating to the analysis of "secondary impacts," the analysis of "reasonable alternatives," and the preparation of a supplemental environmental impact statement EIS. See id. at 582-587. The court found that the balance of harms favored the plaintiffs and that the public interest would be better served by maintaining the status quo pending agency recourse to the NEPA process. Id. at 591-93. The court enjoined the permitting, funding and construction of the project pending further order, or pending compliance by the FHwA and the Corps with

a) the NEPA requirement of an adequate evaluation of all reasonably foreseeable secondary impacts of developing a cargo terminal on Sears Island;

b) the NEPA requirement of evaluation of all reasonable alternatives to the proposed project; and

c) the NEPA requirement that all new information be assessed with a view to determining whether its environmental significance requires preparation of a supplemental EIS.

Order Amendment Preliminary Injunction, June 1, 1989, at 2.

On July 6, 1989, the court granted the federal defendants' unopposed motion to supplement the record. The court now considers the cross-motions for summary judgment on the three NEPA claims in light of the supplemented record.

II. DISCUSSION

1. "Secondary Impact" Analysis

NEPA regulations require that an EIS discuss both the direct and indirect (or secondary) impacts of a proposed project. See 40 C.F.R. § 1502.16. Indirect impacts are those "caused by the action that are later in time or farther removed in distance than the direct impacts, but are still reasonably foreseeable."²Id. at § 1508.8 (emphasis added). Whether a particular impact is to be regarded as "definite enough to take into account, or too speculative to warrant consideration, reflects several different factors." Sierra Club I, 769 F.2d at 878. In determining whether an agency decision not to discuss particular impacts is "arbitrary and capricious,"³ the court is to consider —

With what confidence can one say that the impacts are likely to occur? Can one describe them `now' with sufficient specificity to make their consideration useful? If the decisionmaker does not take them into account `now,' will the decisionmaker be able to take account of them before the agency is so firmly committed to the project that further environmental knowledge, as a practical matter, will prove irrelevant to the government's decision?

Id. (citing Commonwealth of Massachusetts v. Watt, 716 F.2d 946, 952-53 (1st Cir.1983)).

The final EIS FEIS devotes 47 pages to an analysis of reasonably foreseeable secondary impacts of the Sears Island project. FEIS, Vol. I, at 4-108—4-154. The analysis is based on the assumption that the only reasonably foreseeable tenants of the planned industrial park are manufacturers of fabricated metal products, non-electrical machinery and equipment, electrical and electronic machinery and equipment, and transportation equipment.⁴ See FEIS, Vol. I, at 4-109, 4-110. The FEIS assumes that these industries will have no significant air or water impacts. See id. at 4-117, 4-120. These industries were selected for secondary impact analysis because

the targeted industries have been proposed for attraction by both public officials and the property owners (and are, therefore, reasonably foreseeable), and would not likely occur on Sears Island or Mack Point without the proposed action (and would, therefore, be attributable to it).

Id. at 4-111.

Plaintiffs argue that the agency decision to restrict the secondary impact analysis to these four target industries was "arbitrary and capricious," because there is evidence in the administrative record that "heavy" industries, with significant air and/or water impacts, are foreseeable tenants of the industrial park. The court ruled that the record did not evidence FHwA consideration of the prospect that industries other than the "light-dry" type targeted in the Mallar Report might locate in the industrial park.

Although it is conceivable that a careful consideration of all available information could have enabled the FHwA rationally to conclude that the Mallar Report presented a logical basis for determining which industries were "reasonably foreseeable" and could be attributable to the Sears Island port project, the court cannot determine from the record that any such FHwA decision was "founded on a reasoned evaluation of the relevant information." Oregon Natural Resources Council, 490 U.S. at ___, 109 S.Ct. at 1865.

Sierra Club IV, 714 F.Supp. at 565.

Since an agency decision will be upheld only if it is "rational, based on consideration of the relevant factors, and within the scope of the agency's authority," Motor Vehicle Manufacturing Ass'n v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983), the court found that plaintiffs had established a likelihood of success on the merits of this claim. The court considered record evidence which seemed to indicate that it was foreseeable that food, forest product, and other "nonlight-dry" industry, would locate near the port project. See Sierra Club IV, 714 F.Supp. at 564-65 (citing Sierra Club I, 769 F.2d at 878 (quoting 1983 Environmental Assessment EA prepared for MDOT: "several forest product and food industries are also expected to have facilities on Sears Island"); Wallace, Floyd, Associates, Inc. Sears Island Master Plan, Final Report (1985), at 20-21 (Sears Island "good location for manufacturing based on wood products exported via the state pier (e.g. waferboard production)"); Report of Advisory Committee on Coastal Development and Conservation, FEIS, Vol. I, at A-2, 2-3 (targeting Searsport as an area for "heavy" industrial development); Letter from State Development Office, FEIS, Vol. II, at 5-2 (Sears Island industrial "park is intended for heavy industry")). The court found that certain meeting notes⁵ and an FHwA affidavit,⁶ to which the defendants cited, did not demonstrate that the FHwA considered, much less evaluated, the foreseeability of attracting to the industrial park food or forest product industries, or other nonlight-dry industries (except power generation and aluminum smelter industries). See Sierra Club IV, 714 F.Supp. at 564-65.

In response to the preliminary injunction, defendants filed three affidavits aimed at supplementing and elucidating the administrative record.⁷See Supplemental Affidavit of Francis Mahady Mahady Supp. Aff.; Supplemental Affidavit of William Richardson Richardson Supp. Aff.; Affidavit of Leslie Stevens Stevens Aff.. The Mahady and Richardson affidavits satisfactorily explain the confusion concerning the "missing" EPA Special Report,⁸see Mahady Supp. Aff. at ¶¶ 6-7; Richardson Supp. Aff. at ¶¶ 8-11, and these affidavits also describe the method used to determine the types of industries selected for FEIS "secondary impact" analysis, and the apparent shift away from the types of industrial tenants anticipated at the time of the preparation of the 1983 EA,⁹see Mahady Supp. Aff. at ¶ 13.

The Mahady supplemental affidavit articulates a rationale for the conclusion that the FEIS "secondary impact" analysis treats only "light, dry industries." See id. at ¶¶ 9-11, 14. A key factor in the selection of an industry for "secondary impact" analysis was the recognition that "industries locating in the industrial park had to be those which do not require substantial water and sewer capabilities in order to function," because existing sewer and water facilities would be inadequate.¹⁰Id. at ¶ 10. Mahady ruled out industries whose water and sewage needs would require substantial new infrastructure improvements because no such work was either planned as part of the project or "proposed or reasonably likely to occur independently through actions by the State, Waldo County,...