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Sierra Club v. Marsh

Citation: 19 ELR 20699
No. No. 88-0116-B, 701 F. Supp. 886 at 908/(D. Me., 11/07/1988) Supplemental memorandum

The court holds that plaintiff's claims that construction by the Maine Department of Transportation (MDOT) of a causeway to, and a marine cargo terminal on, Sears Island would violate the Federal Water Pollution Control Act (FWPCA) and the National Environmental Policy Act (NEPA) raise questions to be considered in future litigation. The court first holds that plaintiff has standing under § 10 of the Administrative Procedure Act to sue the Coast Guard for allegedly violating § 9 of the Rivers and Harbors Act by not obtaining congressional consent before permitting MDOT to construct the causeway. The zone of interests protected by § 9 includes plaintiff's interests in the causeway's environmental impacts. The court holds that plaintiff is not likely to succeed on the merits of this claim, however, because the Coast Guard reasonably treated the proposed causeway site as a waterway whose navigable portions lie wholly within one state and thus as exempt from the congressional consent requirement.

The court next holds that questions remain as to the merits of plaintiff's claim that the Army Corps of Engineers violated FWPCA § 404 by issuing a permit without independently verifying the data produced by MDOT and its consultants, and challenged by the Environmental Protection Agency, regarding an alternative terminal site. Questions also remain regarding whether the Corps was justified in evaluating the suitability of an alternative site for MDOT's goal of eventually developing a larger facility, or should only have evaluated its suitability for the smaller project immediately at issue. The court also holds that questions remain regarding whether defendants violated NEPA. These questions involve whether defendants accepted data without assuring that the contractors who produced it had no conflicts of interest; whether the federal lead agency independently verified the environmental impact statement (EIS) produced by MDOT; whether the EIS adequately considered the project's secondary impacts, specifically the potential industrial development; and whether the EIS adequately discussed all reasonable alternatives, specifically whether it justifiably evaluated their suitability for MDOT's goal of eventually developing a larger facility, or should only have evaluated their suitability for the smaller project immediately at issue.

[Related opinions are published at 15 ELR 20911, 16 ELR 20487, and 19 ELR 20692.]

Counsel are listed at 19 ELR 20692.