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

• Decision Date: 25 February 1983
• Docket Number: 476,522,475,Nos. 473,524,523,D,s. 473
• Parties: , 13 Envtl. L. Rep. 20,326 SIERRA CLUB, the City Club of New York, Business for Mass Transit, Committee for Better Transit, Inc., NYC Clean Air Campaign, Inc., West 12th St. Street Block Association, Hudson River Fishermen's Association, Hudson County Citizens for Clean Air, Seymour Durst, Otis Burger, Mary Rowe and Howard Singer, Plaintiffs-Appellees-Cross-Appellants, v. UNITED STATES ARMY CORPS OF ENGINEERS, John Marsh, as Secretary of the Army of the United States, Joseph K. Bratton, as Chief of Engineers, Walter M. Smith, Jr., as New York District Engineer of the United States Army Corps of Engineers, William C. Hennessy, as Commissioner of the New York State Department of Transportation, United States Department of Transportation, Andrew L. Lewis, Jr., as Secretary of Transportation of the United States, Federal Highway Administration, and Raymond A. Barnhart, as Administrator of the Federal Highway Administration, Defendants-Appellants-Cross-Appellees. ockets 82-6125, 82-6145, 82-6149, 82-6183, 82-6193 and 82-6195.
• Court: U.S. Court of Appeals — Second Circuit

Page 1011

701 F.2d 1011

18 ERC 1748, 13 Envtl. L. Rep. 20,326

SIERRA CLUB, the City Club of New York, Business for Mass

Transit, Committee for Better Transit, Inc., NYC Clean Air

Campaign, Inc., West 12th St. Street Block Association,

Hudson River Fishermen's Association, Hudson County Citizens

for Clean Air, Seymour Durst, Otis Burger, Mary Rowe and Howard Singer, Plaintiffs-Appellees-Cross-Appellants, v. UNITED STATES ARMY CORPS OF ENGINEERS, John Marsh, as

Secretary of the Army of the United States, Joseph K.

Bratton, as Chief of Engineers, Walter M. Smith, Jr., as New

York District Engineer of the United States Army Corps of

Engineers, William C. Hennessy, as Commissioner of the New

York State Department of Transportation, United States

Department of Transportation, Andrew L. Lewis, Jr., as

Secretary of Transportation of the United States, Federal

Highway Administration, and Raymond A. Barnhart, as

Administrator of the Federal Highway Administration,

Defendants-Appellants-Cross-Appellees.

Nos. 473, 475, 476, 522, 523, 524, Dockets 82-6125, 82-6145,

82-6149, 82-6183, 82-6193 and 82-6195.

United States Court of Appeals,

Second Circuit.

Argued Sept. 29, 1982.

Decided Feb. 25, 1983.

Albert K. Butzel, New York City (Mitchell S. Bernard, Butzel & Kass, New York City, on brief), for plaintiffs-appellees-cross-appellants Sierra Club, et al.

John S. Martin, Jr., U.S. Atty., S.D.N.Y., New York City (R. Nicholas Gimbel, Gaines Gwathmey, III, Thomas D. Warren, Asst. U.S. Attys., New York City, on brief), for defendants-appellants-cross-appellees U.S. Army Corps of Engineers and Federal Highway Admin.

Milton S. Gould, New York City (Bernard D. Fischman, Shea & Gould, New York City, Darrell Harp, Michael McDonald, Albany, N.Y., Gary H. Baise, Jonathan Z. Cannon, Karl S. Bourdeau, Beveridge & Diamond, Washington, D.C., on brief), for defendant-appellant-cross-appellee Hennessy.

Before OAKES, MESKILL and KEARSE, Circuit Judges.

KEARSE, Circuit Judge:

These are appeals by state and federal defendants and a cross-appeal by plaintiffs Sierra Club, et al. ("Sierra Club"), from judgments of the United States District Court for the Southern District of New York, Thomas P. Griesa, Judge, upholding in part plaintiffs' challenge to the federal defendants' approval of Hudson River landfill in connection with a proposed New York City highway known as "Westway." The court ruled that defendants United States Army Corps of Engineers (the "Corps") and Federal Highway Administration ("FHWA") had violated the National Environmental Policy Act, 42 U.S.C. Sec. 4332 (1976) ("NEPA"), and that the Corps had violated the Clean Water Act, 33 U.S.C. Sec. 1344 (Supp. V 1981), and Sec. 10 of the Rivers and Harbors Appropriations Act of 1899, 33 U.S.C. Sec. 403 (1976) ("Rivers and Harbors Act"), by making inadequate investigations and disclosures concerning the impact of the Westway landfill project on fisheries in the Hudson River. The court enjoined further construction of the project pending reconsideration by FHWA and the Corps in compliance with the statutes, ordered special record-keeping in connection with the reconsideration, and appointed a special master to supervise compliance. FHWA, the Corps, and defendant William C. Hennessy as Commissioner of the New York State Department of Transportation ("NYSDOT") challenge various aspects of these rulings. In its cross-appeal Sierra Club seeks reversal of so much of the district court's decision as found the Corps, in other respects, in compliance with NEPA, the Clean Water Act, and Sec. 9 of the Rivers and Harbors Act.

For the reasons below, we affirm the district court's judgments except insofar as they (1) upheld plaintiffs' claim that the Corps had violated Sec. 10 of the Rivers and Harbors Act, (2) required FHWA and the Corps to include in a supplemental environmental impact statement current information on nonfisheries issues, (3) prohibited FHWA and the Corps from acting as joint lead agencies in preparing a supplemental environmental impact statement, and (4) appointed a special master.

I. FACTS

The background of the present litigation is more fully set forth in two opinions of Judge Griesa, reported in Action for Rational Transit v. West Side Highway Project, 536 F.Supp. 1225 (S.D.N.Y.1982), see note 14 infra, and Sierra Club v. United States Army Corps of Engineers, 541 F.Supp. 1367 (S.D.N.Y.1982). Familiarity with both opinions is assumed. Except to the extent indicated, the following statement of facts reflects findings of the district court or evidence of record as to which we see no substantial dispute.

A. Initiation of the Westway Project, the Draft EIS, and the Criticisms

"Westway," the currently proposed Manhattan highway intended to replace the southernmost portion of the deteriorating West Side Highway, had its origins in a 1971 agreement reached among New York City, New York State, and FHWA in connection with major revisions of the interstate highway system in the New York metropolitan region. The plan began to take shape in 1972, when the State and the City jointly established an administrative entity called the "West Side Highway Project" (the "Project") under the jurisdiction of NYSDOT to plan the replacement for the West Side Highway. The Project was comprised almost entirely of outside consulting firms, the chief of which was Systems Design Concept, Inc. ("Sydec"), whose principal, Lowell K. Bridwell, was Executive Director of the Project from 1972 until 1981.

Beginning in 1972, the Project spent many months developing policy statements and goals to use in planning the location and design of the replacement highway. At some point it became apparent that construction of the replacement highway would require preparation of an environmental impact statement ("EIS") pursuant to Sec. 102(2)(C) of NEPA, ¹ to describe the environmental consequences of the construction. The staff and consulting firms associated with the Project prepared, within their respective areas of expertise, draft sections of such a statement. Sydec assembled all of the sections in a single draft, and submitted it to NYSDOT and FHWA for review.

On April 25, 1974, a formal draft environmental impact statement ("DEIS") was issued, signed by NYSDOT and FHWA, presenting five alternative plans for the replacement highway and analyzing the alternatives in terms of community needs and environmental concerns. The DEIS discussion of the replacement highway's expected impact on fisheries in the Hudson River was based on a 1973 biological survey conducted by one of the Project's consulting firms. It concluded that the interpier area was populated only by relatively few species of fish (tomcods) and invertebrates. In accordance with 40 C.F.R. Sec. 1500.7(a) (1974), the DEIS was circulated for public comment.

Most of the responses to the DEIS related to an alternative referred to as the "outboard" alternative, which included a proposal for the highway to be built on landfill between bulkhead and pierhead lines (the "interpier area") on the river. Three federal agencies submitted comments to NYSDOT. The National Marine Fisheries Service ("Fisheries Service") informed NYSDOT that it did "not believe that the statement provide[d] sufficient information to permit a valid assessment of probable environmental impacts," particularly with respect to marine resources. The United States Federal Wildlife Service ("Wildlife Service") and Environmental Protection Agency ("EPA") also submitted comments which focused tangentially on marine impacts. ²

Following issuance of the DEIS and the Project's receipt of comments, city agencies, with Project support, reviewed the outboard alternative and recommended the construction of a modified version of that alternative. This recommendation was approved by the Governor and the Mayor on March 7, 1975, and Westway was the name given to the approved alternative.

B. The Final EIS

After publication of the DEIS, the Project reevaluated the alternatives and completed further engineering and environmental studies. The environmental studies included a Technical Report on Water Quality ("Water Report") based on the same 1973 fisheries data that had been used to formulate the DEIS's discussion of the project's impact on fisheries. The Water Report stated that relatively few species of fish could tolerate the existing conditions of the interpier area and that, although the area might be used to a limited extent in migration, modern-day pollution made the area a "biological wasteland."

After receiving the comments on the DEIS, the Project staff reevaluated the outboard alternative and prepared a new document, as required by 40 C.F.R. Sec. 1500.7(a) (1974); see also NEPA Sec. 102(2)(C), incorporating the comments and its responses to them, to become part of the final environmental impact statement. ³ The final environmental impact statement ("FEIS" or "January 1977 EIS") recommending Westway, signed by NYSDOT and FHWA, was issued on January 4, 1977.

The FEIS analyzed the Westway alternative as it related to, inter alia, the quality of urban development, traffic patterns, air quality, noise, water quality, and the impact of the proposed landfill on the aquatic habitat of the interpier region. Noting that the interpier area was "biologically impoverished," the FEIS stated that Westway would create an estuarine habitat in the interpier area that

will closely resemble that of the main channel. The inter pier basins are presently almost devoid of macro organisms, and therefore the landfilling of the basins will cause a minimal loss of estuarine productivity for species other than micro organisms. Since the inshore area is biologically impoverished, the placement of landfill will have little impact on the overall productivity of the Hudson estuary. As noted earlier in this discussion, future dissolved oxygen levels throughout the Lower Hudson are expected to improve substantially with...