Sierra Club v. Alexander
Citation: 10 ELR 20422
No. No. 79-CV-770, 484 F. Supp. 455/14 ERC 1465/(N.D.N.Y., 02/05/1980)
The district court rules that the defendant Corps of Engineers violated the National Environmental Policy Act (NEPA) in two respects in issuing a permit to construct a shopping mall in a wetland area but declines to enjoin continued work on the project. The court first rejects the argument that because the environmental merits of the project were raised at hearings on the developer's application for a state permit the doctrines of res judicata and collateral estoppel preclude the raising of similar issues before the district court. The former doctrine is clearly inapplicable and the latter is inappropriately invoked under the circumstances. Although defendants' determination that the issuance of a § 404 permit for the project did not require preparation of an environmental impact statement (EIS) might reasonably be disputed, it was not irrational and thus must be upheld since the record shows that the Corps at least took a hard look at the relevant environmental factors. The Corps violated the Act, however, in refusing to consider seriously alternative plans for the project on the grounds that such an analysis is not required where preparation of an environmental impact statement is not necessary. The agency's § 102(2)(E) duty to consider alternatives is wholly separate from its duty to prepare an EIS. Defendants also violated NEPA's requirements in not circulating adequate public notice of the proposed project. There has been no violation of the Fish and Wildlife Coordination Act, however, despite the fact that the Fish and Wildlife Service objected to the issuance of the § 404 permit. The Act requires only that the views of the Service be considered, not that they be determinative. Notwithstanding the defendants' plain violations of NEPA, the court declines to enjoin further construction on the project. It has now progressed to the point where delay in its completion would lead to soil erosion, stream siltation, and other potentially serious environmental damage. Moreover, plaintiff's request that the site be returned to its original condition cannot be granted under NEPA. Judgement is therefore awarded to defendants.
Counsel for Plaintiffs
Plunkett & Jaffe, P.C.
1 N. Broadway, White Plains NY 10601
Counsel for Federal Defendants
George H. Lowe, U.S. Attorney; Gustave J. DiBianco, Jay Hecht, Ass't U.S. Attorneys
369 Federal Bldg., Syracuse NY 13260
Counsel for Defendant Pyramid Corp.
Finley, Kumble, Wagner, Heine & Underberg
425 Park Ave., New York NY 10022