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Missouri Coalition for the Env't v. Corps of Eng'rs

Citation: 19 ELR 20588
No. No. 88-1382, 866 F.2d 1025/28 ERC 1902/(8th Cir., 01/27/1989) Aff'd

The court holds that the Corps' decision not to revoke, suspend, or modify a Federal Water Pollution Control Act § 404 permit for a commercial project near St. Louis after the project was modified to substitute a domed football stadium for some of the originally planned facilities was reasonable. The court first holds that the issues raised in the case are not moot. Although the St. Louis football team has moved to Phoenix, Arizona, the issues are "capable of repetition, yet evading review," since St. Louis County still owns the stadium site and is actively pursuing another football franchise, and it is likely that plaintiffs will continue to bring legal challenges to prevent construction of the stadium. The court holds that its review of plaintiffs' National Environmental Policy Act (NEPA) claims is not limited to the Corps' six-page memorandum for record (MFR), but must consider whether the finding in the MFR is sustainable based on the entire administrative record. The court holds that the district court did not abuse its discretion by allowing explanatory testimony to clarify the administrative record or by refusing to require the Corps to produce certain intra-agency documents related to the Corps' original decision not to prepare an environmental impact statement (EIS). The court rejects plaintiffs' challenge to the Corps' decision not to prepare an EIS. The court holds that plaintiffs have failed to make the threshold showing required under NEPA that the Corps failed to consider facts that, if true, would demonstrate that the project could have a substantial effect on the environment. The Corps conducted an exhaustive review of the project's environmental impacts. The court holds that the proposed stadium does not exceed the activities authorized under the § 404 permit, zoning ordinances not premised on ecological considerations do not implicate NEPA, and the proposed stadium does not violate Missouri's Clean Air Act state implementation plan.

The dissent would hold that the dispute is moot, and would remand the case to the district court for an order directing the Corps to vacate its challenged permit decision.

[The district court decision is published at 19 ELR 20581. Briefs from the Eighth Circuit are digested at ELR PEND. LIT. 66030.]

Counsel for Appellants
Lewis Green
Green, Hennings & Henry
314 N. Broadway, Ste. 1830, St. Louis MO 63102
(314) 231-4181

Counsel for Appellees
Maxine I. Lipeles
Husch, Eppenberger, Donohue, Cornfeld & Jenkins
100 N. Broadway, Ste. 1300, St. Louis MO 63102
(314) 421-4800

Maria A. Iizuka
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2753

Before FAGG and WOLLMAN, Circuit Judges, and WOODS,* District Judge.