Sierra Club v. Marsh

• Decision Date: 30 May 1989
• Docket Number: Civ. No. 88-0116-B.
• Citation: 714 F. Supp. 539
• Parties: SIERRA CLUB, et al., Plaintiffs, v. John O. MARSH, Jr., et al., Defendants.
• Court: U.S. District Court — District of Maine

714 F. Supp. 539

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

Civ. No. 88-0116-B.

United States District Court, D. Maine.

May 30, 1989.

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Edward F. Lawson, Weston, Patrick, Willard & Redding, Boston, Mass., and Tybe A. Brett, Portland, Me., for plaintiffs.

Michael M. DuBose, Asst. U.S. Atty., Bangor, Me., Thomas G. Reeves, Chief Counsel, Legal Div., Maine Dept. of

Transp., Augusta, Me., John Quarles, Anthony C. Roth, Leslie S. Ritts, and Daniel S. Goodman, U.S. Dept. of Justice, Land & Natural Resources Div., Environmental Defense Section, Washington, D.C., for defendants.

MEMORANDUM OF DECISION ON RECONSIDERATION FOLLOWING REMAND

CYR, Chief Judge.

Plaintiffs, Sierra Club and two of its members, request declaratory and injunctive relief halting Maine Department of Transportation's MDOT's construction of a marine dry cargo terminal on the western shore of Sears Island in Upper Penobscot Bay. Plaintiffs contend that construction permits issued by the Army Corps of Engineers the Corps and by the United States Coast Guard the Coast Guard, as well as Federal Highway Administration FHwA funding of the project, 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.

In Sierra Club v. Marsh, 872 F.2d 497 (1st Cir.1989) Sierra Club III, the United States Court of Appeals for the First Circuit vacated an order of this court, see Sierra Club v. Marsh, 701 F.Supp. 886 (D.Me.1988), which had declined to enjoin the construction of a causeway to Sears Island and the resumption of harbor dredging in the area of the proposed terminal. On remand pursuant to the mandate of the United States Court of Appeals for the First Circuit, the court reconsiders plaintiffs' motion for preliminary injunctive relief insofar as it is predicated on their NEPA claims.

I. BACKGROUND¹

Sierra Club v. Marsh, 701 F.Supp. 886 (D.Me.1988), employed the four-part test traditionally required in the First Circuit upon consideration of a request for preliminary injunctive relief: (1) would plaintiffs suffer irreparable harm if the injunction is not granted; (2) would the harm to the plaintiffs outweigh any harm that injunctive relief would cause the defendants; (3) have plaintiffs demonstrated a likelihood of success on the merits; and (4) would an injunction be in the public interest. See Sierra Club, 701 F.Supp. at 894 (quoting Planned Parenthood League v. Bellotti, 641 F.2d 1006, 1009 (1st Cir.1981).

The court found that there had been no demonstration of irreparable harm likely to result from construction of the causeway or dredging of the harbor at the site of the proposed terminal,² that the balance of harms favored the defendants and that the public interest would be better served by allowing causeway construction and harbor dredging to proceed pending a decision on the merits.

The court further determined that, even if it were made to appear that the plaintiffs were likely to succeed on the merits of their NEPA claims, a likelihood of irreparable physical harm to the environment would have to be demonstrated in order to obtain preliminary injunctive relief. Sierra Club, 701 F.Supp. at 899. Since plaintiffs did not demonstrate that "removal of the causeway was either impracticable or that it would not restore the environmental status quo," or that restoration of habitats destroyed by dredging would be impracticable, the court found that the plaintiffs had failed to demonstrate irreparable environmental harm in the absence of an injunction. 701 F.Supp. at 898.

The court recognized that its decision did not give effect to Commonwealth of Massachusetts v. Watt, 716 F.2d 946 (1st Cir. 1983). See Sierra Club, 701 F.Supp. at 894-897. Watt had held that

the harm at stake from a NEPA violation is a harm to the environment, but the harm consists of the added risk to the environment that takes place when governmental decisionmakers make up their minds without having before them an analysis (with prior public comment) of the likely effects of their decision upon the environment.

Sierra Club III, at 500 (emphasis in original). Sierra Club III held that

NEPA's object is to minimize that risk, the risk of uninformed choice, a risk that arises in part from the practical fact that bureaucratic decisionmakers (when the law permits) are less likely to tear down a nearly completed project than a barely started project. In Watt we simply held that the district court should take account of the potentially irreparable nature of this decisionmaking risk to the environment when considering a request for preliminary injunction.

Sierra Club III, at 500 (emphasis added). Relying on Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987), this court held that a violation of NEPA procedure, "without more, raises no presumption of irreparable injury, nor does it diminish the need to determine the likelihood of irreparable environmental harm in the absence of preliminary injunctive relief." Sierra Club, 701 F.Supp. at 897.

On appeal from this court's decision in Sierra Club, 701 F.Supp. 886 (D.Me.1988), the First Circuit reaffirmed its holding in Watt: "When a decision to which NEPA obligations attach is made without the informed environmental consideration that NEPA requires, the harm that NEPA intends to prevent has been suffered." Sierra Club III, at 500 (quoting Watt, 716 F.2d at 952) (emphasis added).³

A district court, when considering a request for a preliminary injunction, must realize the important fact of administrative life that we described in Watt: as time goes on, it will become ever more difficult to undo an improper decision (a decision that, in the presence of adequate environmental information, might have come out differently). The relevant agencies and the relevant interest groups (suppliers, workers, potential customers, local officials, neighborhoods) may become ever more committed to the action initially chosen.

Id. at 503. The First Circuit cautioned that by recognizing "this harm and its potentially `irreparable' nature" it was not creating a "special `presumption' in favor of injunctions," indeed the "balance of harms" could "point the other way" in a particular case. Id. at 503-04 (quoting Watt, 716 F.2d at 952 (emphasis in original)).

The First Circuit distinguished Watt from Village of Gambell on the basis of certain differences between the two statutes being considered in those cases: "the kinds of `harms' that are relevant, and that may be `irreparable,' will be different according to each statute's structure and purpose." Sierra Club III, at 502 (citing Village of Gambell, 480 U.S. at 543 n. 9, 107 S.Ct. at 1403 n. 9; Watt, 716 F.2d at 952). Although "both NEPA and ANILCA are `procedural' statutes in the sense that both set forth procedures that decisionmakers must follow before taking an action that might harm the environment (or `subsistence uses')," Sierra Club III, at 502, the First Circuit noted that ANILCA contains substantive standards as well, id. at 502, whereas NEPA itself does not, id. at 502. Under ANILCA, "should an agency head choose a course of action that, for example, takes from subsistence uses more than the `minimal amount of public lands' necessary for the alternative public purposes ..., ANILCA requires him to change the action." Id. at 502. Whereas, although "NEPA demands that a decisionmaker consider all significant environmental impacts before choosing a course of action," id. at 502, once the NEPA process has been followed NEPA itself imposes no constraints upon the agency's power to permit the project notwithstanding its adverse environmental effects, id. at 502.

This difference between NEPA and ANILCA is "critical for present purposes," id. at 501, because "insofar as a procedural failure leads to an improper choice, a court, under ANILCA but not under NEPA, may require the decisionmaker to choose a new action; and this fact may make the ANILCA procedural failure `reparable harm,'" id. at 503 (emphasis in original). As agency decisionmakers may not be compelled, under NEPA itself, to choose the less environmentally injurious course of action, the First Circuit ruled that "the difficulty of stopping a bureaucratic steam roller, once started, ... is a perfectly proper factor for a district court to take into account in assessing" a motion for preliminary injunctive relief. Id. at 504.⁴

In Sierra Club III, the First Circuit reiterated, see also Massachusetts v. Watt, 716 F.2d 946 (1st Cir.1983), that NEPA "seeks to create a particular bureaucratic decisionmaking process, ... whereby administrators make important decisions with an informed awareness of how the decision might significantly affect the environment," Sierra Club III, at 497, and the court went on to say: "if any such decision is made without the information that NEPA seeks to put before the decisionmaker, the harm that NEPA seeks to prevent occurs," id. (citing Watt, 716 F.2d at 952). Upon revisiting Watt, the First Circuit offered further explanation.

The harm at stake is a harm to the environment, but the harm consists of the added risk to the environment that takes place when governmental decisionmakers make up their minds without having before them an analysis (with prior public comment) of the likely effects of their decision upon the environment. NEPA's object is to minimize that risk, the risk of uninformed choice, a risk that arises in part from the practical fact that bureaucratic decisionmakers (when the law permits) are less likely to tear down a nearly completed project than a barely started project. In Watt we simply held that the district court should take account of the potentially irreparable nature of this

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