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Sierra Club v. Marsh

Citation: 23 ELR 20321
No. No. 92-1312, 976 F.2d 763/35 ERC 2002/(1st Cir., 09/30/1992) Ruling on secondary impact claims

The court holds that state and federal agencies involved in a proposed port project in Searsport, Maine, reasonably decided to restrict the analysis in an environmental impact statement (EIS) of secondary impacts from the project to four light-dry industries. The court also holds that the district court did not err in admitting and considering the agencies' post-hoc supplementation of the administrative record in deciding whether the agencies' decision to limit the scope of the EIS was reasonable. This ongoing litigation began when the Maine Department of Transportation (MDOT) decided to build a modern port facility on Sears Island in Searsport, Maine. An environmental group obtained injunctive relief against the MDOT, the Federal Highway Administration, the ArmyCorps of Engineers, and the U.S. Coast Guard, to halt construction of the marine dry cargo terminal on Sears Island, on claims that construction permits issued by the federal agency defendants failed to comply with the Federal Water Pollution Control Act, the Rivers and Harbors Act, and the National Environmental Policy Act (NEPA). Subsequently, the agencies filed four affidavits to explain the administrative record, and all parties filed additional memoranda. The district court thereafter granted summary judgment for the agencies on the environmental group's NEPA secondary impacts claim, ruling that the new information remedied the deficiencies in the administrative record, and this appeal followed.

The court first holds that the district court's decision is affirmed, irrespective of whether an arbitrary and capricious, or reasonable standard of review is applied. The court next holds that a reviewing court may turn to the administrative record to decide whether an agency's decision on the scope of an EIS is reasonable. Contrary to the environmental group's argument that this violates NEPA by allowing an otherwise defective EIS to be cured by documentation not circulated to the public, a reviewing court must review the administrative record to determine whether the EIS is inadequate in the first place. The district court concluded that it could find nothing in the administrative record that evidenced that the agencies had ever made a decision on what secondary impacts to include in the EIS, let alone any evidence of the rationale for that decision. Neither NEPA, nor its regulations, require an EIS to explain how an agency determined the scope of an EIS, including, for example, why it excluded from the EIS each alleged impact that the agencies determined did not qualify as a secondary impact. Stated otherwise, a reviewing court may not rely on information and analysis in an administrative record to cure an inadequate EIS, but must review the administrative record to determine the inadequacy of an EIS.

Turning to the merits, the court holds that the district court properly accepted the agencies' affidavits to explain the decisionmakers' action. The affidavits do not contain any facts about the proposed project that are not also included in the EIS and the administrative record. Rather, the affidavits explain why, based on the information in the administrative record and the EIS, the agencies concluded that the four light-dry industries were the only reasonably foreseeable secondary industrial effects of the proposed port project. Moreover, the environmental group has cited no authority for its assertion that a court should review an agency's decision about what to include in a NEPA-mandated EIS in a manner different from the way courts typically review agency decisions. The U.S. Supreme Court, in Citizens To Preserve Overton Park, Inc. v. Volpe, 1 ELR 20110, specifically anticipated that affidavits containing post-hoc explanations would be considered by courts reviewing the propriety of an agency decision.

The court next holds that the agencies were not arbitrary and capricious in including in the EIS a discussion from a report and land use plan on the secondary impacts from the four light-dry industries targeted, and that the secondary impact analysis in the EIS is adequate. The conclusion in the EIS that "industries that do not require access to water" are likely to locate in Bangor, Maine, does not make the agencies' decision arbitrary and capricious. First, not all information in an administrative record must support an agency's decision. Second, when the conclusion is read in its proper context it does not imply that industries not dependent on water are unlikely to develop on Sears Island. The court next holds that although an advisory report recommended that heavy industry be clustered in the same area as a cargo port facility, the agencies properly decided that heavy industry was not likely to develop on Sears Island because the available water and sewer facilities are insufficient to support heavy industry. Further, the project owners and the town are not directing their marketing efforts at heavy industry. The advisory report's recommendation to cluster heavy industry at a cargo port facility does not transform the purpose of the port project to induce heavy industry to locate on Sears Island. Nor does it follow from the agencies' conclusion that heavy industry is unlikely to develop on Sears Island as a consequence of the port project that Maine has abandoned its clustering policy. Thus, there is no need for a supplementary EIS. Finally, the court holds that, although the EIS failed to analyze other water-dependent industries that often accompany port development, the EIS analysis of secondary impacts is adequate. The environmental group did not make this argument in the district court, and the court declines to hear it for the first time on appeal. It was permissible for the agencies not to analyze other water-dependent industries — such as auto processing, petroleum, and cement — because the likelihood of these industries developing on the island is too speculative to be reasonably foreseeable.

[Previous decisions directly leading to this appeal are published at 19 ELR 20692, 20699, 20931, 20 ELR 20216, 21343. Other decisions in this litigation are published at 15 ELR 20911, 16 ELR 20487, 20976, and 17 ELR 20991.]

Counsel for Plaintiffs/Appellants
Edward F. Lawson
Weston, Patrick, Willard & Redding
84 State St., 11th Fl., Boston MA 02109
(617) 742-9310

Counsel for Defendants/Appellees
David C. Shilton, Robert L. Klarquist
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Anthony C. Roth
Morgan, Lewis & Bockius
1800 M St. NW, Washington DC 20036
(202) 467-7000

Thomas G. Reeves, Chief Counsel
Maine Department of Transportation
Legal Division
State Home Station, No. 16, Augusta ME 04333
(207) 287-2681

Before TORRUELLA and BOUDIN, Circuit Judges, and KEETON,* District Judge.