National Wildlife Fed'n v. Benn
Citation: 10 ELR 20755
No. No. 78 Civ. 2118 (CHT), 491 F. Supp. 1234/14 ERC 1754/(S.D.N.Y., 06/12/1980)
The court concludes that the Corps of Engineers' procedures for testing and evaluation of ocean dumping of dredged material into the New York Bight do not violate the Marine Protection, Research, and Sanctuaries Act of 1972, but the court requires the Corps to prepare a programmatic environmental impact statement (EIS) for dumping at the site. The court first rejects the Corps' two procedural defenses. The court finds that notwithstanding that plaintiffs are not challenging a specific project, the case is ripe for review because plaintiffs are challenging the Corps' specific procedures and policies for issuing permits and approving projects. Furthermore, the hardship that would result to plaintiffs' interests if judicial review were withheld is sufficient to render the claims ripe for review. In addition, the court finds that joinder of the Environmental Protection Agency (EPA) is not required because the Corps' current interpretation and application of joint EPA/Corps procedures are consistent with the statutory criteria. As to the proper standard of review of the Corps' procedures, the court notes that it should defer to the Agency's expertise if exercised reasonably and consistently with the regulatory purpose. Turning to the merits, the court concludes that the Corps has a certain degree of discretion to adopt various testing and evaluation procedures, finding that the pooling of bioassay test results and the use of a 10 percent mortality difference between control and test organisms to determine what constitutes a significant undesirable effect of ocean dumping falls within this discretion. Finally, the court finds that the Corps has violated the National Environmental Policy Act by treating individual ocean dumping projects as isolated ventures rather than parts of a large venture. It holds that the Corps must prepare a programmatic EIS for the entire Mud Dump Site. The court rejects the arguments that EPA is responsible for the EIS and that plaintiffs must challenge a specific permit to resolve this issue, pointing out that the "steady flood of activity in a well-defined area" justifies requiring a programmatic EIS.
Counsel for Plaintiffs
Kenneth S. Kamlet
National Wildlife Federation
1412 16th St. NW, Washington DC 20036
James T. B. Tripp
Environmental Defense Fund, Inc.
475 Park Ave. S, New York NY 10016
Counsel for Defendants
John S. Martin Jr., U.S. Attorney; Peter R. Paden, Ass't U.S. Attorney
One St. Andrews Plaza, New York NY 10007