Sierra Club v. Froehlke
Citation: 17 ELR 20817
No. No. 86-2247, 816 F.2d 205/25 ERC 1993/(5th Cir., 05/11/1987) Rev'd & injunction vacated
The court, lifting the permanent injunction that has halted construction of the Wallisville Lake Project in Texas since 1973, holds that the Corps of Engineers has complied with the National Environmental Policy Act (NEPA) and Congress has authorized the project. The court first holds that the Corps' handling of a report it prepared in 1982, the Supplemental Information to the Post-Authorization Change Report (SIPACR), was reasonable under NEPA. The SIPACR was prepared by the Corps for internal use only and thus had not been subject to NEPA review. Congress somehow obtained the report and referenced it when it authorized a scaled-down version of the project in 1983. The court holds that the SIPACR did not require review and refinement as a supplemental environmental impact statement (EIS). The Corps did not seriously alter the environmental picture when it reinstated fish and wildlife enhancement as project purposes in the SIPACR. The SIPACR's analysis of the consequences of private development if the project was not built was simply a reconsideration of an issue left open in the 1981 EIS-Post Authorization Change Report (EIS-PACR). The SIPACR also did not seriously alter the environmental picture by reinstating navigation benefits as project purposes, since the navigation benefits discussed in the SIPACR resulted from a quantification of benefits already discussed in the EIS-PACR. The court also holds that the Corps' handling of the SIPACR satisfied NEPA's public review and comment requirements. After Congress authorized the project in 1983, the Corps prepared a supplemental information report containing comments on the final EIS and the SIPACR. The court holds that this post hoc review satisfies NEPA since the SIPACR did not seriously alter the environmental picture.
The court holds that the 1981 EIS-PACR satisfies NEPA. The Corps took the requisite hard look at the project's impacts on salinity and nutrient conditions. Finally, the court holds that Congress need not authorize the project before construction resumes. Although Congress authorized the project in 1983 based on data that had not been subject to the entire NEPA process, there is no need for it to reauthorize the project now that the Corps has completed its review.
Counsel for Plaintiff
11281 Richmond Bldg. J, #110B, Houston TX 77802
Counsel for Defendant
James R. Gough, Ass't U.S. Attorney
P.O. Box 61129, Houston TX 77208
Counsel for Intervenor
James H. Keahy
414 Brady Lane, Austin TX 78746
Before THORNBERRY, GEE and REAVLEY, Circuit Judges.