Jump to Navigation
Jump to Content

Mall Properties, Inc. v. Marsh

ELR Citation: 18 ELR 20135
Nos. No. 85-4038-W, 672 F. Supp. 561/27 ERC 1008/(D. Mass., 09/09/1987)

The court holds that the Corps of Engineers exceeded its authority under Rivers and Harbors Act (RHA) §10 and Federal Water Pollution Control Act (FWPCA) §404 by basing its denial of a dredge and fill permit for construction of a shopping mall in North Haven, Connecticut, on socioeconomic harms that are not proximately related to changes in the physical environment. The court first rules that the Corps may consider economic impacts in deciding whether to grant a permit only if the impacts are related to changes in the physical environment. This conclusion is supported by the purposes and policies of FWPCA §404 and RHA §10, the pertinent provisions of the statutes and their regulations, the limited case law on the economic component of the Corps' public interest review, and analogous cases involving the National Environmental Policy Act (NEPA). The court holds that NEPA does not authorize the Corps to give significant weight to economic effects. The Supreme Court's decision in Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 13 ELR 20515 (1983), construed NEPA to authorize consideration only of harms proximately related to a change in the physical environment. Cases cited by defendants holding that socioeconomic effects may be considered when a proposed action has a primary impact on the natural environment have little, if any, vitality after Metroplitan Edison. Even if this line of cases remains in effect, consideration of socioeconomic impacts would not be appropriate here because the primary impacts that concerned the Corps did not involve the physical environment.

The court holds that the Corps violated its regulations by failing to provide the developer with notice and an opportunity to respond to the the governor of Connecticut's objection to the construction of the mall. The court holds that the meeting between Corps' officials and the governor during which the governor expressed his opposition to the mall was not itself prohibited as an ex parte contact. The court holds, however, that the Corps violated its regulations by failing to inform the developer of the meeting until after the permit was denied. Defendants' claim that the governor provided the Corps with no new information is irrelevant, since the regulations require the Corps to allow an applicant to respond to all objections from other government agencies.

Counsel for Plaintiff
Daniel Riesel, Mark Chertok
Sive, Paget & Riesel
460 Park Ave., New York NY 10022
(212) 421-2150

Counsel for Defendant
David Dearing
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2741