Sierra Club v. Marsh

• Decision Date: 29 July 1992
• Docket Number: No. 92-1312,92-1312
• Citation: 976 F.2d 763
• Parties: , 23 Envtl. L. Rep. 20,321 SIERRA CLUB and William O'Neil, Plaintiffs, Appellants, v. John O. MARSH, Jr., et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 763

976 F.2d 763

35 ERC 2002, 23 Envtl. L. Rep. 20,321

SIERRA CLUB and William O'Neil, Plaintiffs, Appellants, v. John O. MARSH, Jr., et al., Defendants, Appellees.

No. 92-1312.

United States Court of Appeals First Circuit.

Heard July 29, 1992.

Decided Sept. 30, 1992.

Edward F. Lawson, with whom Weston, Patrick, Willard & Redding, Boston, Mass., was on brief, for appellants.

Anthony C. Roth, with whom John Quarles, Morgan, Lewis & Bockius, Washington, D.C., and Thomas G. Reeves, Chief Counsel, Legal Div., Maine Dept. of Transp., Augusta, Me., were on joint brief of appellees, for appellee Maine Dept. of Transp.

David C. Shilton, Atty., Environment and Natural Resources Div., U.S. Dept. of Justice, with whom Barry M. Hartman, Acting Asst. Atty. Gen., and Robert L. Klarquist, Atty., Environment and Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., were on joint brief of appellees, for Federal appellees.

Before TORRUELLA and BOUDIN, Circuit Judges, and KEETON, ^* District Judge.

KEETON, District Judge.

Sierra Club and two of its members ("Sierra Club"), challenging the adequacy of an Environmental Impact Statement ("EIS"), appeal from a summary judgment entered by the United States District Court for the District of Maine in favor of appellees Maine Department of Transportation, Federal Highway Administration, Army Corps of Engineers, and United States Coast Guard ("agencies") on Sierra Club's National Environmental Policy Act ("NEPA") claims arising out of a port project in Searsport, Maine. Although it appears that the Federal Highway Administration is ultimately responsible for the preparation of the final EIS, see Sierra Club v. Marsh, 701 F.Supp. 886, 916-18 (D.Me.1988) and Supplemental Affidavit of William Richardson at p 1, all of the defendant agencies were involved in the preparation of the EIS. As a matter of convenience, we will refer to the "agencies" when discussing the EIS.

Sierra Club challenges the district court's conclusion that the analysis of secondary impacts in the agencies' final EIS satisfies NEPA. We affirm.

I. Background

More than ten years ago, Maine Department of Transportation decided to build a modern port facility on Sears Island in Searsport, Maine. The port project includes construction of a marine dry cargo terminal and the building of a causeway and highways to provide full rail and road access to the port facility. A more detailed description of the project appears in Sierra Club v. Marsh, 769 F.2d 868, 872-73 (1st Cir.1985).

In three separate cases filed in the United States District Court for the District of Maine, Sierra Club has initiated several legal challenges to the construction of the port facility. Rulings of the district court in the first two cases have been the subject of three appeals to this court. See Sierra Club v. Marsh, 769 F.2d 868 (1st Cir.1985) ("Sierra Club I ") (holding that NEPA requires the federal agencies to prepare an EIS); Sierra Club v. Secretary of Transp., 779 F.2d 776 (1st Cir.1985) ("Sierra Club II ") (affirming the district court's decision that the Coast Guard had unlawfully issued a permit for the proposed causeway under the General Bridge Act); Sierra Club v. Secretary of the Army, 820 F.2d 513 (1st Cir.1987) ("Sierra Club III ") (affirming the district court's award of attorney's fees to Sierra Club).

The present appeal is from a final judgment in the third case, which was commenced by a complaint filed on May 19, 1988. In this complaint Sierra Club requests declaratory and injunctive relief halting construction of the marine dry cargo terminal on Sears Island. The complaint alleges that construction permits issued by the federal agency defendants must be suspended due to failure to comply with the Clean Water Act, 33 U.S.C. § 1344, section 9 of the Rivers and Harbors Act, 33 U.S.C. § 401, and NEPA, 42 U.S.C. § 4331, et seq.

Some of the issues raised in the complaint have been dispositively resolved and are not before us. In particular, the district court entered two separate final judgments for the agencies--on the Clean Water Act claims on January 30, 1990 and on the Harbor Act claims on March 29, 1991--from which Sierra Club did not appeal. These claims are not at issue in this appeal. The procedural history that follows, therefore, is concerned only with the issues that Sierra Club seeks to pursue on this appeal.

Sierra Club moved for a preliminary injunction on August 12, 1988. The district court denied Sierra Club's motion on the ground that Sierra Club had failed to establish that it would be irreparably harmed if an injunction was not issued. See Sierra Club v. Marsh, 701 F.Supp. 886 (D.Me.1988) ("Sierra Club IV-A "). On appeal, this court vacated the district court's decision and remanded. See Sierra Club v. Marsh, 872 F.2d 497 (1st Cir.1989) ("Sierra Club IV-B "). Upon remand, the district court (Cyr, J.) reconsidered the issue of irreparable harm and issued a preliminary injunction. See Sierra Club v. Marsh, 714 F.Supp. 539 (D.Me.1989) ("Sierra Club IV-C "). The district court concluded that Sierra Club had shown a likelihood of success on the merits of its NEPA claims, and in particular on its claim that the EIS discussion of the port project's secondary impacts was inadequate. See id. at 564.

Approximately two months after entering the preliminary injunction, the district court allowed, over opposition by Sierra Club, a defense motion for leave to make a supplemental filing. The agencies filed four affidavits to explain the administrative record, and all parties filed additional memoranda. After reviewing the administrative record, affidavits, and additional memoranda from the parties, the district court (Cyr, J.) granted summary judgment for the agencies on Sierra Club's NEPA secondary impacts claim and denied Sierra Club's cross-motion for summary judgment. See Sierra Club v. Marsh, 744 F.Supp. 352 (D.Me.1989) ("Sierra Club IV-D "). The court concluded, inter alia, that the final EIS analysis of secondary impacts satisfies NEPA. See id. at 359-60.

Sierra Club appealed immediately from the summary judgment order. This court concluded that the district court's decision on summary judgment was interlocutory rather than final, that it had not amended the preliminary injunction within the meaning of 28 U.S.C. § 1292(a)(1), and that no appealable order had been entered. It dismissed the appeal for want of jurisdiction. See Sierra Club v. Marsh, 907 F.2d 210 (1st Cir.1990) ("Sierra Club IV-E ").

By Order of January 23, 1992, as amended February 12, 1992, the district court (Brody, J.) entered final judgment for the agencies, incorporating, inter alia, the earlier summary judgment for the agencies on Sierra Club's NEPA secondary impact claim. This appeal followed.

In Sierra Club IV-C, the district court concluded also that Sierra Club had demonstrated a likelihood of success on the merits of its claim that the agencies violated NEPA by not preparing a supplemental EIS to evaluate new information on the acreage of the project. See Sierra Club IV-C, 714 F.Supp. at 565-72. In its Memorandum on the parties' cross-motions for summary judgment, the district court again concluded that Sierra Club had demonstrated a likelihood of success on its supplemental EIS claim, but the court deferred making a judgment on the merits in light of the agencies' proposal to retain a consultant to study whether the increased acreage requirements of the project warrant the preparation of a supplemental EIS. See Sierra Club IV-D, 744 F.Supp. at 365-68. As a result of further consideration by the agencies, agency announcements were made on July 15 and July 25, 1991, that a supplemental EIS was to be prepared. Accordingly, in its Final Judgment of January 23, 1992, as amended February 12, 1992, the district court dismissed Sierra Club's supplemental EIS claim as moot. Thus, our affirmance may not bring an end to litigation over the Searsport project as Sierra Club may challenge the adequacy of the supplemental EIS. This matter, however, has no effect on the present appeal.

II. Legal Requirements Regarding EIS Secondary Impacts Analysis

NEPA requires federal agencies to prepare "a detailed statement ... on the environmental impact" of any proposed federal project "significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C)(i). Not all impacts need be discussed in exhaustive detail. First, only those effects that are "likely" (or "foreseeable" or "reasonably foreseeable") need be discussed, see Sierra Club I, 769 F.2d at 875, and, as in other legal contexts, the terms "likely" and "foreseeable," as applied to a type of environmental impact, are properly interpreted as meaning that the impact is sufficiently likely to occur that a person of ordinary prudence would take it into account in reaching a decision. Cf. Barber Lines A/S v. M/V Donau Maru, 764 F.2d 50 (1st Cir.1985) (explaining the meaning of "likely" and "foreseeable" as applied to tort liability for "financial losses" not associated with physical harm). Thus, "duty" to discuss in the EIS particular ones among all the types of potential impacts is not an "absolute" or "strict" duty but one measured by an objective standard. That is, a likelihood of occurrence, which gives rise to the duty, is determined from the perspective of the person of ordinary prudence in the position of the decisionmaker at the time the decision is made about what to include in the EIS. Second, even as to those effects sufficiently likely to occur to merit inclusion, the EIS need only "furnish such information as appears to be reasonably necessary under the circumstances for evaluation of the project." Britt v. United States Army Corps of Engineers, 769 F.2d 84, 91 (2d Cir.1985); accord Concerned Citizens on I-190 v. Secretary of Transp., 641 F.2d 1, 5 (1st Cir.1981) (stating that the issue is whether the " 'EIS can be said to constitute a statement which...