Texas Committee on Natural Resources v. Marsh

• Decision Date: 16 July 1984
• Docket Number: No. 83-2145,83-2145
• Citation: 736 F.2d 262
• Parties: , 14 Envtl. L. Rep. 20,650 TEXAS COMMITTEE ON NATURAL RESOURCES and Mrs. Peggy Amerson, Plaintiffs- Appellees, v. John O. MARSH, Jr., Secretary, Department of the Army, Defendant-Appellant, North Texas Municipal Water District, Sulphur River Municipal Water District and City of Irving, Texas, Intervenors-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 262

736 F.2d 262

21 ERC 1323, 14 Envtl. L. Rep. 20,650

TEXAS COMMITTEE ON NATURAL RESOURCES and Mrs. Peggy Amerson Plaintiffs- Appellees, v. John O. MARSH, Jr., Secretary, Department of the Army Defendant-Appellant North Texas Municipal Water District, Sulphur River Municipal Water District and City of Irving Texas, Intervenors-Appellants.

No. 83-2145.

United States Court of Appeals, Fifth Circuit.

July 16, 1984.

Rehearing Denied Sept. 17, 1984. ^*

Roland Boyd, Bill Boyd, John E. Gay, McKinney, Tex., for North Texas, et al.

William Cornelius, Asst. U.S. Atty., Tyler, Tex., James Spears, Atty., U.S. Dept. of Justice, Washington, D.C., for Marsh, Secty. Army.

Don J. Rorschach, City Atty., Irving, Tex., for City of Irving, Tex.

Edward C. Fritz, Dallas, Tex., Richard A. Shannon, Austin, Tex., for Texas Committee.

Jim Mattox, Atty. Gen., R. Lambert Townsend, Asst. Atty. Gen., Austin, Tex., for amicus State of Tex.

Appeals from the United States District Court for the Eastern District of Texas.

Before TATE, JOLLY and DAVIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

The Army Corps of Engineers appeals an order of the district court permanently enjoining work on its proposed Cooper Lake and Channels project pending submission of an environmental impact statement which complies with the provisions of the National Environmental Policy Act (NEPA). Because we find that the environmental impact statement submitted by the Corps of Engineers in 1981 complies with the requirements of NEPA, we reverse the judgment of the district court and dissolve the injunction.

I.

In 1955 the Army Corps of Engineers secured Congressional approval of a multi-purpose reservoir and flood-control plan for north Texas called the Cooper Lake and Channels Project. Congress authorized the use of federal funds to finance the flood-control aspects of the project, which included the construction and repair of levees and channel clearance along the Sulphur River. The congressional authorization also permitted the Corps to build water-supply facilities for use by communities in the project area if those communities agreed to pay for their construction and maintenance.

Between 1955 and 1967, the Corps completed most of the levee and channel work designed to control flooding in the project area. Then, in 1971, the Corps obtained the funding necessary to begin building Cooper Lake, the proposed reservoir. At that time, the plaintiffs in this case first went to court to block completion of the reservoir, and they obtained a preliminary injunction. Since then, virtually no work has been done toward the completion of the project except for design and the acquisition of land.

II.

In 1971 the Texas Committee on Natural Resources (TCNR) ¹ obtained a preliminary injunction forbidding any work on the Cooper Lake project except design and the acquisition of land pending the promulgation of an environmental impact statement (EIS) by the Corps. The Corps originally took the position that NEPA did not apply to the Cooper Lake project because it was begun prior to the enactment of NEPA. Having lost that particular argument, the Corps prepared a draft EIS and released it for public comment in June 1976. The Corps modified the EIS and the project plans in response to comments from the public, and it released the EIS in June 1977.

TCNR amended its original complaint to allege that the 1977 EIS did not comply with the requirements of NEPA. The Corps responded by moving that the preliminary injunction be lifted. In December 1978, after a trial that lasted several days, the district court issued a thirty-page memorandum opinion in which it set forth the deficiencies it found in the EIS. ² Concluding that the Corps had not met its obligations under NEPA, the district court issued a permanent injunction against the project pending promulgation of an adequate EIS.

Rather than appeal the district court's ruling, the Corps chose to revise the EIS in response to the criticisms expressed in the memorandum opinion. A draft of the supplemental EIS (SEIS) was released in October 1980 for public comments, and the final SEIS was published in March 1981.

In July 1981 the Corps moved for the district court to dissolve the permanent injunction. The district court ordered the parties to submit stipulations of fact to supplement the record in the case. Without an evidentiary hearing, the district court issued a second memorandum opinion, exceeding one hundred pages, describing inadequacies in the SEIS. In March 1983, the district court issued a second permanent injunction prohibiting the Corps from "continuing further with the Cooper Lake and Channels Project until such time as a supplemental environmental impact statement is filed ... that corrects the deficiencies noted in [the second] memorandum opinion, and which complies with the National Environmental Policy Act of 1969 to the fullest extent possible."

Appeals to this court were filed by the Corps and the intervenors, who are the local government bodies which have sponsored the water-supply features of the project.

III.

The issue presented by the appellants is whether the SEIS substantially complies with the requirements of NEPA. They argue that the district court grossly exceeded its authority when it enjoined the project pending the Corps' compliance with the district court's memorandum opinion.

NEPA requires federal agencies to consider the significant environmental consequences of their actions and to inform the public of the results of their research. Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, ----, 103 S.Ct. 2246, 2252, 76 L.Ed.2d 437 (1983). Consequently, the duties imposed by the statute have been described by the Supreme Court as "essentially procedural." Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978). NEPA does not require or authorize federal agencies to abdicate their other statutory responsibilities in pursuit of environmental goals. Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227-28, 100 S.Ct. 497, 499-500, 62 L.Ed.2d 433 (1980) (per curiam).

As NEPA imposes a limited obligation on federal agencies, it similarly requires federal courts to exercise a limited form of judicial review when faced with a challenge to an agency's compliance with NEPA. The Supreme Court recently has said:

The role of the courts is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious.

Baltimore Gas, 462 U.S. at ----, 103 S.Ct. at 2253. Justice Marshall has pointed out that the federal courts have the primary responsibility for giving meaning to the rather vaguely worded requirements of NEPA and that the development of a " 'common law' of NEPA" has been the source of that statute's success. Kleppe v. Sierra Club, 427 U.S. 390, 421, 96 S.Ct. 2718, 2735, 49 L.Ed.2d 576 (1976) (Marshall, J., concurring in part and dissenting in part). In this circuit, we have endeavored to formulate a body of law that instructs federal agencies and federal courts in their efforts to comply with and enforce NEPA. In Isle of Hope Historical Ass'n, Inc. v. United States Army Corps of Engineers, 646 F.2d 215 (5th Cir.1981) (per curiam) (adopting opinion of district court), we summarized some criteria by which we have evaluated the adequacy of an EIS:

(1) whether the agency in good faith objectively has taken a hard look at the environmental consequences of a proposed action and alternatives; (2) whether the EIS provides detail sufficient to allow those who did not participate in its preparation to understand and consider the pertinent environmental influences involved; and (3) whether the EIS explanation of alternatives is sufficient to permit a reasoned choice among different courses of action.

646 F.2d at 220, citing Save Our Sycamore v. Metropolitan Atlanta Rapid Transit Authority, 576 F.2d 573 (5th Cir.1978). We have consistently stated that judicial review of an agency's compliance must be guided by a "rule of reason" and that courts must not "fly speck" an EIS. Sierra Club v. Sigler, 695 F.2d 957, 965 (5th Cir.1983); Citizens for Mass Transit, Inc. v. Adams, 630 F.2d 309, 313 (5th Cir.1980). Courts must "avoid placing extreme or unrealistic burdens on the compiling agency." Isle of Hope, 646 F.2d at 220.

In this case, the district court placed on the Corps the burden of responding to a memorandum opinion detailing defects in the SEIS, some significant, many trifling, spread over one hundred legal-sized pages. Although we cannot identify with certainty all of the defects which the district court considered fatal, we restrict our own review to issues which are truly substantial. ³ We concentrate on four areas in which the district court and the plaintiffs have identified what they characterize as material flaws in the SEIS. They argue that Corps violated NEPA by failing to present an adequate plan for the mitigation of losses to fish populations and aquatic habitats; by failing to discuss a water-supply-only alternative to the project; by failing to discuss supplies of water from sources other than the proposed reservoir; and by failing to present an adequate assessment of the costs and benefits of the plan and alternatives.

IV.

Each of the four main areas in which the district court found the SEIS inadequate was first mentioned in its 1978 memorandum opinion. In the SEIS the Corps addressed these issues, but, as we shall explain in some detail, the district court was not satisfied with the Corps' attempts to meet its demands for changes in the EIS.

A.

The EIS submitted in 1977 did not contain a plan for the mitigation of fish and wildlife losses resulting from the project. The district court found that the Corps had failed to cooperate with the United...