State ex rel. Guste v. Lee, Civ. A. No. 83-6126.

• Decision Date: 03 June 1986
• Docket Number: Civ. A. No. 83-6126.
• Citation: 635 F. Supp. 1107
• Parties: STATE of Louisiana ex rel. William J. GUSTE, Jr., Attorney General; Save Our Coast, Inc.; The Orleans Audubon Society; Sierra Club; Manchac Fisherman's Association; Environmental Defense Fund v. Colonel Robert C. LEE, District Engineer, New Orleans, District, U.S. Army Corps of Engineers, Lieutenant General Joseph K. Bratton, Chief of Engineers, Department of the Army, William R. Gianelli, Assistant Secretary (Civil Works), Department of the Army, and John O. Marsh, Jr., Secretary, Department of the Army.
• Court: U.S. District Court — Eastern District of Louisiana

635 F. Supp. 1107

STATE of Louisiana ex rel. William J. GUSTE, Jr., Attorney General; Save Our Coast, Inc.; The Orleans Audubon Society; Sierra Club; Manchac Fisherman's Association; Environmental Defense Fund v. Colonel Robert C. LEE, District Engineer, New Orleans, District, U.S. Army Corps of Engineers, Lieutenant General Joseph K. Bratton, Chief of Engineers, Department of the Army, William R. Gianelli, Assistant Secretary (Civil Works), Department of the Army, and John O. Marsh, Jr., Secretary, Department of the Army.

Civ. A. No. 83-6126.

United States District Court, E.D. Louisiana.

April 23, 1986.

As Amended June 3, 1986.

COPYRIGHT MATERIAL OMITTED

Michael Osborne, New Orleans, La., Katherine P. Ransel, Nicholas C. Yost, Washington, D.C., William J. Guste, Jr., Atty. Gen., State of La., Peter M. Arnow, Louisiana Dept. of Justice, Baton Rouge, La., James T.B. Tripp, New York City, for plaintiffs.

John R. Peters, Jr., John Volz, U.S. Atty., New Orleans, La., F. Henry Habicht, II, Land & Natural Resources Div., Washington, D.C., Joe Leblanc, Frank J. Peragine, Elizabeth Griffin, U.S. Army Corps of Engineers, New Orleans, La., for defendants.

OPINION, ORDER AND JUDGMENT

McNAMARA, District Judge.

I. STATEMENT OF THE CASE

This matter comes before the court a second time, on remand for reconsideration from the United States Fifth Circuit Court of Appeals.¹ As stated in our earlier opinion,² this litigation arises out of the five-year extension of six shell dredging permits issued by the United States Army Corps of Engineers hereinafter the "Corps" pursuant to the Rivers and Harbors Act of 1899, 33 U.S.C. § 403, and the Clean Water Act, 33 U.S.C. § 1344. The permits allow four shell dredging companies to dredge in two areas of southern Louisiana. The "Gulf Coast Area" hereinafter "GCA" consists of the Gulf of Mexico, East and West Cote Blanche, Four League Bay and Vermillion Bay. The "Lakes Area" hereinafter "LA" consists of Lake Pontchartrain and Lake Maurepas.

Plaintiffs, the State of Louisiana and several private environmentalist groups,³ allege that the Corps violated the National Environmental Policy Act hereinafter "NEPA", 42 U.S.C. § 4321 et seq., and the Administrative Procedure Act, 5 U.S.C. §§ 701-706. Three of the shell dredging companies subject to the permits, Louisiana Materials Company, Inc., Dravo Basic Materials Co., Inc. formerly Radcliff Materials, Inc., and Pontchartrain Materials Corp., have intervened in this proceeding as Defendants, pursuant to Fed.R.Civ.P. 24.

In their complaint, Plaintiffs seek:

(1) A declaratory judgment that the Corps' extension of the shell dredging permits without having first prepared an environmental impact statement hereinafter "EIS" constitutes a violation of the NEPA;⁴ and

(2) An injunction requiring the Corps to rescind the shell dredging permits and to prohibit any shell dredging in the affected areas until an adequate EIS is prepared.

As noted in our earlier opinion, the procedural scheme contemplated by the NEPA and the CEQ NEPA Regulations is a relatively simple one. Paraphrasing § 4332(2)(C) of the NEPA, all agencies of the federal government are required to include in every recommendation or report on proposals for all major federal actions⁵ significantly affecting the quality of the human environment, a detailed statement on the environmental impact (EIS) of the proposed action. Stated another way, an EIS is mandated if a major federal action significantly affects the quality of human environment. Save Our Ten Acres v. Kreger, 472 F.2d 463, 465 (5th Cir.1973).

(a) Procedural History — Prior to the remand of this matter, Plaintiffs had moved for summary judgment. The Corps responded with a motion to suspend judicial proceedings so that the matter could be remanded to the Corps for further consideration. The court granted the Corps' motion, allowing approximately nine weeks for the reconsideration. After reconsidering the matter, the Corps filed a revised environmental assessment hereinafter 1984 EA and findings of fact. Once again, the Corps issued a finding of no significant impact and thus again concluded no EIS was required. The Corps then filed a motion to remove the 1982 EA documents from the record, but the court denied the motion. This court then entertained cross-motions of all parties for summary judgment, ultimately granting Defendants' motion for summary judgment and dismissing Plaintiffs' claim that the Corps violated the NEPA in failing to prepare an EIS prior to renewal of the shell dredging permits in issue. Plaintiffs then appealed this court's order, asserting that Defendants did not "establish that there was no material dispute as to whether the Corps was reasonable in concluding that no significant environmental impact would result from continuing the dredging." State of Louisiana v. Lee, 758 F.2d at 1082. The Court of Appeals vacated and remanded finding this court applied an improper standard of judicial review.

II. THE APPROPRIATE STANDARD OF JUDICIAL REVIEW

As pointed out in our earlier opinion, "the threshold determination of whether the effect of the proposed action is sufficiently `significant' is made by the preparation of an Environmental Assessment (EA)." State of Louisiana v. Lee, 596 F.Supp. at 651 (citing 40 C.F.R. § 1598.9). We further noted that if, upon examination of the EA, the agency concludes that the proposed action would not have a significant effect on the human environment, a "finding of no significant impact" hereinafter FONSI must be prepared. See, 40 C.F.R. § 1508.13. Conversely, "if the EA reveals that the quality of human environment would be significantly degraded by the proposed action, an EIS is required." 596 F.Supp. at 651 (citing Save Our Wetlands v. Sands, 711 F.2d 634, 644 (5th Cir.1983)).

In reviewing this court's granting of Defendants' motion for summary judgment, the Fifth Circuit noted the above language and concluded that the court had subjected Plaintiffs to an improper evidentiary burden, requiring Plaintiffs "to prove a significant degradation of the environment actually would result before the Corps' conclusion could be deemed unreasonable." 758 F.2d at 1084 (emphasis added). The circuit court pointed out that the standard utilized⁶ would have been accurate if it had read "the quality of the human environment may be significantly degraded." Id. (emphasis in original).

A recent recapitulation of the proper standard of review as well as the plaintiff's burden of proof in environmental litigation was set forth in Louisiana Wildlife Federation v. York, 761 F.2d 1044 (5th Cir.1985). The circuit court succinctly stated that "`the standard of judicial review is whether the agency decision not to develop an impact statement is reasonable and made objectively and in good faith on a reviewable environmental record. If the decision is reasonable, "the determination must be upheld".'" 761 F.2d at 1052 (citations omitted). In regards to Plaintiffs' burden of proof in environmental litigation, Judge Rubin stated that "now ... it is clear that the plaintiffs must prove `that the Corps was unreasonable in concluding there was no reasonable possibility that the proposed action would significantly degrade any environmental factor.'" Id. at 1054 (Rubin, J., dissenting). (citing State of Louisiana v. Lee, 758 F.2d at 1085).⁷ Simply stated, "the test is whether there is a possibility, not a certainty, of significant impacts." Fritiofson v. Alexander, 772 F.2d 1225, 1238 n. 7 (5th Cir.1985).

In ascertaining the reasonableness vel non, the Fifth Circuit has pointed out that a decision not to prepare an EIS may be deemed unreasonable for two distinct reasons:

(1) The evidence before the court indicates that the proposed project may have a significant impact on the human environment, contrary to the FONSI, or

(2) "The agency's review was flawed in such a manner that it cannot yet be said whether the project may have a significant impact." Fritiofson v. Alexander, 772 F.2d at 1238.

The circuit court has emphasized that the appropriate relief is often contingent upon which of these findings the district court makes. "If the court finds the proposed project may have a significant impact, the court should order an EIS." Fritiofson, 772 F.2d at 1238 (citations omitted). However, if the court concludes that the EA is inadequate and deficient such that it cannot yet be said whether the proposed project may have a significant impact, the court should remand the case to the agency to correct the deficiencies. Id.

As noted, this court remanded this matter to the Corps, allowing the agency additional time to re-evaluate and reconsider its initial decision to forego preparation of an EIS. The 1984 EA was an outgrowth of that re-evaluation.

Accordingly the reasonableness vel non of the Corps' decision to forego preparation of an EIS is contingent upon Plaintiffs showing that the proposed project may have significant adverse impacts on, or either may cause a significant degradation of, some human environmental factor.

In construing the term "significant," the Fifth Circuit has stated that "`significant' is `a chameleon-like word that takes its functional meaning from the context.'" Louisiana Wildlife Federation v. York, supra, 761 F.2d at 1052-53. (citation omitted). Some of the factors to be considered in making the determination of "significance" include not only the context, but also the intensity of the proposed action. 40 C.F.R. § 1508.27.⁸

III. EFFECTS OF DREDGING⁹ AS REFLECTED IN ENVIRONMENTAL ASSESSMENTS¹⁰ Gulf Coast Area

The shells dredged in the Gulf Coast Area (GCA) are primarily oyster shells. Oyster shell deposits are found in reefs formed of millions of cubic yards of shell more or less cemented together. The shells are dredged by means of a barge with an excavating cutter-head that digs through the shell deposits. The shells are recovered by hydraulic suction. Reefs are typically...