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California ex rel. Van de Kamp v. Marsh

Citation: 19 ELR 20165
No. Nos. C-86-5817 RHS, -6023 RHS, 687 F. Supp. 495/(N.D. Cal., 05/11/1988)

The court holds that the Army Corps of Engineers' decision not to prepare an environmental impact statement (EIS) before issuing a permit to fill a wetland for the purpose of constructing air cargo facilities at Oakland Airport was unreasonable and violated the National Environmental Policy Act. The court holds that the Corps improperly failed to evaluate reasonable alternatives, particularly relocation of some or all of the proposed air cargo services to nearby airports. The court holds that the Corps failed properly to evaluate the project's effects on wildlife, and, based on incomplete information, unreasonably concluded that these effects would be insignificant. Substantial questions had been raised regarding the project's impacts on the endangered salt marsh harvest mouse and California least tern, as well as its impacts on wildlife generally due to pollution of the remaining wetlands by additional development. The court holds that the Corps improperly failed to take a hard look at the potentially significant noise impacts of the project and to independently verify the data it used in finding that the noise levels would be acceptable. The court holds that the Corps improperly failed to evaluate the additional pollutants that would be emitted by the increased traffic, or the pollutant runoff that would be diverted into the San Francisco Bay instead of being filtered through the wetlands. The court holds that the Corps improperly failed to conduct a cumulative impact assessment and to independently verify the cumulative impact data on which it relied. The court holds that the Corps failed adequately to assess the proposed mitigation plan. The record does not show that the plan is adequate or feasible, or that the Corps and the airport authority are contractually obligated to perform it. The court does not reach the plaintiff's allegations under the Clean Air Act, the Federal Water Pollution Control Act, and the Rivers and Harbors Act. The court vacates the permit and enjoins filling of the wetland pending additional Corps investigation of the need for an EIS.

Counsel for Plaintiffs
Theodora Berger, Ass't Attorney General; Susan L. Durbin, David W. Hamilton, Deputy Attorneys General
3580 Wilshire Blvd., Ste. 600, Los Angeles CA 90010
(213) 736-2114

Counsel for Defendants
Frank Boone, Ass't U.S. Attorney
U.S. Courthouse, 450 Golden Gate Ave., Rm. 16201, San Francisco CA 94102
(415) 556-1126

Gerald Fish, Scott A. Schachter
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2000