Environmental Defense Fund v. Marsh
Citation: 11 ELR 21012
No. No. 80-3915, 651 F.2d 983/16 ERC 1233/(5th Cir., 07/13/1981) Rev'd in part
Affirming in part and reversing in part the decision of the district court, 11 ELR 20242, the circuit court orders the entry of a preliminary injunction against construction of portions of the Tennessee-Tombigbee Waterway (TTW) pending supplementation of the project's environmental impact statement (EIS). Since plaintiffs' unrefuted evidence shows significant environmental impacts from major changes in the project, the court holds that the Army Corps of Engineers violated the National Environmental Policy Act as well as its own regulations by refusing to prepare a supplemental EIS. The Corps is not required, however, to prepare a comprehensive EIS embracing impacts of improvements that would be needed in the Black Warrior-Tombigbee Waterway (BWTW) to accommodate potential traffic flows from the TTW, since the Corps has not, as yet, proposed the BWTW improvements for federal action.The court holds that cost-benefit ratios computed by the Corps for the information of Congress under the Water Resources Planning Act, the Department of Transportation Act, and Corps regulations are not judicially reviewable except as they may be incorporated into the supplemental EIS. Nonetheless, because the Corps failed to obtain local assurances of support as required by the Water Resources Development Act (WRDA), it may not use a low, alternative interest rate in place of the current rate in computing future TTW cost-benefit ratios. Although the environmental plaintiffs lack standing under the WRDA to challenge the use of the alternate rate, the Louisville & Nashville Railroad Co. (L&N) meets both the "injury in fact" and "zone of interest" requirements for standing. L&N would suffer economic injury from defendants' construction of the project and L&N's well-being is an aspect of the local economic development sought to be enhanced by the WRDA.
Counsel are listed at 11 ELR 20243.
Before SKELTON*, Senior Judge, and RUBIN and REAVLEY, Circuit Judges.