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Pogliani v. Corps of Eng'rs

Citation: 33 ELR 20068
No. Nos. 01-6199(L), -6102(XAP), 306 F.3d 1235/(2d Cir., 10/09/2002)

The court affirms a district court decision denying residents' request to preliminarily enjoin a U.S. Army Corps of Engineers' (the Corps') permit allowing the use of federal waters and wetlands for construction of an electric-generating plant in Athens, New York, near the banks of the Hudson River. After more than two years of review during which it consulted with several other federal and state agencies and held multiple public hearings, the Corps issued a permit to the generator along with an environmental assessment (EA) in which it concluded that the proposed construction would not have a significant impact on the environment. The residents sought to enjoin the permit on the grounds that an environmental impact statement (EIS) should have been prepared. Specifically, they argued that the Corps erred by failing to release its draft EA and finding of no significant impact (FONSI) for public comment prior to their issuance. Regulations issued by the Council on Environmental Quality require that in certain "limited circumstances," which the agency may cover in its procedures, the agency shall make a FONSI available for public review for 30 days before it makes its final determination whether to prepare an EIS. The Corps' regulations that implement the National Environmental Policy Act (NEPA) go on to provide that the 30-day public comment requirement applies to draft FONSIs and EAs in the case of feasibility, continuing authority, or special planning reports and certain planning/engineering reports. The residents contend that the CorpsÕ NEPA review in this case is among the "limited circumstances" to which the 30-day public comment requirement applies. The court, however, holds that the residents failed to show a likelihood of success on the merits. The 30-day public comment requirement is inapplicable to the Corps' permit issued to the generator in this case. The residents argued that the Corps' permit provides for "continuing authority" over the generating project. The regulation, however, refers not to "continuing authority projects" or "continuing authority permits" but to "continuing authority reports." These reports, agency regulations reveal, are distinct from Corps decisions on permit applications like the one in this case. Thus, the court denies the residents' request for a preliminary injunction.

Counsel for Plaintiff
Kenneth F. McCallion
McCallion & Associates
16 W. 46th St., New York NY 10036
(646) 366-0880

Counsel for Defendant
Elizabeth S. Riker, AssÕt U.S. Attorney
U.S. AttorneyÕs Office
100 S. Clinton St., Syracuse NY 13261
(315) 448-0672