Sierra Club v. U.S. Army Corps of Engineers

• Decision Date: 11 September 1985
• Docket Number: 315,D,Nos. 304,s. 304
• Citation: 772 F.2d 1043
• Parties: , 15 Envtl. L. Rep. 20,998 SIERRA CLUB, Hudson River Fishermen's Association, NYC Clean Air Campaign, Inc., the Hudson River Sloop Clearwater, Inc., the City Club of New York, Business for Mass Transit, Committee for Better Transit, Inc., West 12th Street Block Association, Friends of the Earth, Otis Burger, Mary Rowe, and Howard Singer, Plaintiffs-Appellees, v. UNITED STATES ARMY CORPS OF ENGINEERS, John Marsh, as Secretary of the Army of the United States, E.R. Heiberg, III, as Chief of Engineers, Fletcher H. Griffis, as New York District Engineer, United States Department of Transportation, Elizabeth Dole, as Secretary of Transportation of the United States, Federal Highway Administration, Raymond A. Barnhart, as Federal Highway Administrator, United States Environmental Protection Agency, Lee Thomas, as Administrator of the Environmental Protection Agency, Christopher J. Daggett, as Administrator, Region II of the Environmental Protection Agency, James L. Larocca, as Commissioner of the New York State Department of Transportation, Defendants, United States Army Corp of Engineers, Federal Highway Administration and the New York State Department of Transportation, Defendants-Appellants. ockets 85-6297, 85-6299.
• Court: U.S. Court of Appeals — Second Circuit

Page 1043

772 F.2d 1043

23 ERC 1153, 15 Envtl. L. Rep. 20,998

SIERRA CLUB, Hudson River Fishermen's Association, NYC Clean Air Campaign, Inc., the Hudson River Sloop Clearwater, Inc. the City Club of New York, Business for Mass Transit Committee for Better Transit, Inc., West 12th Street Block Association, Friends of the Earth, Otis Burger, Mary Rowe and Howard Singer, Plaintiffs-Appellees, v. UNITED STATES ARMY CORPS OF ENGINEERS, John Marsh, as Secretary of the Army of the United States, E.R. Heiberg III, as Chief of Engineers, Fletcher H. Griffis, as New York District Engineer, United States Department of Transportation, Elizabeth Dole, as Secretary of Transportation of the United States, Federal Highway Administration, Raymond A. Barnhart, as Federal Highway Administrator, United States Environmental Protection Agency, Lee Thomas, as Administrator of the Environmental Protection Agency, Christopher J. Daggett, as Administrator, Region II of the Environmental Protection Agency, James L. Larocca, as Commissioner of the New York State Department of Transportation, Defendants, United States Army Corp of Engineers, Federal Highway Administration and the New York State Department of Transportation, Defendants-Appellants.

Nos. 304, 315, Dockets 85-6297, 85-6299.

United States Court of Appeals, Second Circuit.

Argued Aug. 29, 1985.

Decided Sept. 11, 1985.

Howard Wilson, Asst. U.S. Atty. for the S.D. of N.Y., New York City (Rudolph W. Giuliani, U.S. Atty. for the S.D. of N.Y., Marc H. Rosenbaum, Randy M. Mastro, Asst. U.S. Attys. for the S.D. of N.Y., New York City, of counsel), for defendants-appellants U.S. Army Corps of Engineers and Federal Highway Admin.

Paul J. Curran, New York City (Bruce Margolius, Kimberly A. McFadden, Lauri A. Novick, Kaye, Scholer, Fierman, Hays & Handler, New York City, of counsel), for defendant-appellant N.Y. State Dept. of Transp.

Mitchell S. Bernard, New York City (Jean M. McCarroll, Butzel & Kass, New York City, of counsel), for plaintiffs-appellees.

Before MANSFIELD, CARDAMONE and PRATT, Circuit Judges.

CARDAMONE, Circuit Judge:

A change in something from yesterday to today creates doubt. When the anticipated explanation is not given, doubt turns to disbelief. This case is capsulized in that solitary simile. Following review during a 30-day trial of a remanded administrative proceeding, the United States District Court for the Southern District of New York (Griesa, J.) entered a judgment in favor of plaintiffs, Sierra Club and others on August 8, 1985. That judgment declared null and void a landfill permit for the West Side Highway Project (Westway) issued by the U.S. Army Corps of Engineers (Corps) on February 25, 1985 and funding approvals for Westway granted by the Federal Highway Administration (FHWA) on March 18, 1985. The judgment also permanently enjoined defendant New York State Department of Transportation (State) from construction of Westway.

In its 132-page opinion the district court found that the Corps' decisionmaking process had violated the National Environmental Policy Act (NEPA), the Clean Water Act and court orders previously issued in 1982. From this judgment the Corps, FHWA and the State appeal and an expedited hearing was held before us on August 29, 1985. We affirm the district court's conclusion with respect to the inadequacy of the federal defendants' Final Supplemental Environment Impact Statement (FSEIS), but reverse the grant by the district court of a permanent injunction and remand the matter to the federal defendants.

To put this case in proper perspective, we outline briefly its chronology, prior legal proceedings, actions taken on remand and the opinion below.

I BACKGROUND

A. Early Chronology and Prior Legal Proceedings

The highway portion of Westway presently proposed contemplates a mostly underground six lane highway extending from the Battery to 42nd Street bordering the Hudson River on the west side of Manhattan. Approval of Westway as a link in the interstate highway system made New York State eligible for 90 percent federal funding for the project. The redevelopment project envisions a 93 acre park, planted on a roof covering the highway, together with extensive residential and commercial development. The total cost of the project is estimated to be 2 billion dollars and requires that 242 acres of the Hudson be landfilled to complete it.

The selection of the Westway project resulted from a process of lengthy study and consultation that began in late 1971 when the City and State of New York requested approval of the West Side highway corridor as part of the Interstate System. That process included discussion with a broad range of State and City agencies and community groups, not only concerning alternatives to the dilapidated West Side Highway, but also about methods of coordinating the highway reconstruction with redevelopment in the deteriorating pier and In April 1974 a draft environmental impact statement (EIS) was circulated for public review. Extensive public hearings were held during the following six-month period for comment, and five alternatives were identified. In January 1977 a Final EIS (FEIS) was approved that selected Westway as the preferred alternative. Later in 1977 the State filed an application with the Corps for a dredge-and-fill permit that was issued on March 13, 1981.

shoreline areas on the west side of Manhattan.

Litigation brought to challenge the permit's issuance has been before us previously. Sierra Club v. United States Army Corps of Engineers, 701 F.2d 1011 (2d Cir.1983); Sierra Club v. Hennessy, 695 F.2d 643 (2d Cir.1982). In these two decisions we upheld essentially the district court's conclusion that the 1977 FEIS--which described the Westway area as a "biological wasteland" (suggesting no fish lived there)--had failed to reveal to the public the possible importance of the site as a winter habitat for juvenile striped bass. Action for Rational Transit v. West Side Highway Project, 536 F.Supp. 1225, 1229 (S.D.N.Y.1982). At that time many experts believed the juvenile striped bass used the Westway landfill area as an "overwintering" habitat--a place where these young fish remained more or less constantly throughout the winter months. 701 F.2d at 1024; 536 F.Supp. at 1246-1247.

Thus, in orders dated April 14 and July 23, 1982 the district court enjoined most construction and many other activities related to Westway and set aside the 1981 landfill permit granted by the Corps and the funding approvals granted by FHWA. The district court in its April order included a provision requiring the Corps to "keep records of all activities, deliberations, and communications (including communications with the FHWA and any other federal official or agency) which occur in relation to [the Westway] permit application." On appeal, we affirmed "the unusual but appropriate" record keeping order and directed the federal defendants "to make their own independent evaluations" of the fisheries issue. Sierra Club v. United States Army Corps of Engineers, 701 F.2d at 1048.

B. Remand

On April 22, 1982 the State again applied to the Corps for a landfill permit for Westway. In October 1982 the Corps convened a workshop of experts to discuss whether and what type of further study was necessary to resolve the question of the fishery habitat. This workshop recommended that a 17 month analysis be undertaken and that the program include various habitat studies. In July 1983 a second workshop of experts was called to assess the need for additional fisheries studies. Participants at that workshop were in agreement that determining the severity of Westway's effect on the striped bass was a matter beyond the state of the art.

Despite this uncertainty, on September 13, 1983 a decision was made by the Corps' New York District Engineer to conduct two winters of additional study to determine Westway's impact on the Hudson River bass. The Governor of New York appealed this decision to the Secretary of the Army, who directed the Corps' Chief of Engineers to determine whether a two-winter project was necessary. A resulting task force report caused the Secretary to decide on December 15, 1983 that although a Supplemental Environmental Impact Statement for Westway could be prepared with existing information under the worst-case regulations, the Corps' New York District Engineer should proceed with a study, limited to one winter--or four months--rather than the 17 months the workshop had recommended.

On May 28, 1984 the Corps and FHWA published a Draft Supplemental Environmental Impact Statement (DSEIS or draft report). The DSEIS concluded that the proposed Westway project landfill would cause a significant loss of habitat to Hudson River juvenile striped bass. It stated that such loss would be a "significant adverse impact to the Hudson River Stock of this species." Though not critical, the On June 26 and 27, 1984 the federal defendants held a public hearing on the DSEIS, at which testimony was received from hundreds of persons, including representatives of the plaintiffs and federal, state and city officials. During the following 45-day comment period, the Corps and FHWA received numerous additional comments from concerned parties. Significantly, from the May 1984 publication of the DSEIS to the November 1984 publication of the FSEIS no new data was collected.

                SEIS continued, Westway would likely cause "long-term repercussions" resulting in "depressed population levels for the foreseeable future."    That harm could be amplified by other projects, e.g., Battery Park City and New Jersey's Harbor Drift, and "the danger to the stock and its ability to recover from the Westway loss could ultimately hinge on what direction these other proposals take."    Finally, the draft report stated it would be "imprudent to consider any such habitat loss as projected by the Westway landfill to be either minimal, insignificant, or sustainable

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