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Environmental Defense Fund v. Alexander

Citation: 11 ELR 20242
No. Nos. EC 77-53, 77-54-K, 501 F. Supp. 742/(N.D. Miss., 10/01/1980)

The court refuses to enjoin continued construction of the Tennessee-Tombigbee Waterway and rules that plaintiffs are barred by res judicata and collateral estoppel from challenging defendants for alleged violations of the National Environmental Policy Act (NEPA), the Fish and Wildlife Coordination Act (FWCA), and other statutes. The Fifth Circuit Court of Appeals had previously ruled that the Corps of Engineers had fully complied with NEPA, 4 ELR 20329. Subsequently, in 1976, the Corps prepared an economic reanalysis of the project and made changes in project design that plaintiffs argued required a supplement to the environmental impact statement (EIS) for the project. The court rules that plaintiffs are barred by res judicata and collateral estoppel from relitigating issues of NEPA compliance. Alternatively, the 1976 economic study is only a general plan, not a proposal, and thus does not constitute a major federal action requiring preparation of an EIS. In addition, since there have been no major design changes, the Corps' regulations do not require a revised EIS. Plaintiffs are also barred by res judicata and collateral estoppel from relitigating whether benefit/cost calculations are subject to judicial review. In addition, since the Water Resources Planning Act, the Department of Transportation Act, the Flood Control Act of 1970, and Corps regulations were enacted to provide data to Congress for making legislative decisions, they do not provide a basis for judicial review. The court further finds that since the environmental plaintiffs are unable to show injury-in-fact from the failure by local contributors to pay for the nonfederal share of the project they have no standing under § 80(b) of the Water Resources Development Act to challenge defendants' use of an alternate rate rather than the current rate in computing costs and benefits of the project. However, the Louisville and Nashville Railroad Co. has standing since it would suffer economic injury if defendants constructed the project. Further, because § 80 confers sole discretion on the Secretary of the Army to determine the sufficiency of local assurances to pay nonfederal costs, there is no law to apply, and the action is not reviewable under the Administrative Procedure Act. The court next rules that defendants did not violate § 221 of the Flood Control Act of 1970 by failing to obtain written agreements from nonfederal agencies since project construction began prior to the § 221 cutoff date of 1972. Plaintiffs are also barred by res judicata and collateral estoppel from asserting new violations of the FWCA. Additionally, the FWCA confers no private right of action when parties also challenge compliance with NEPA. The court further finds that defendants did not violate §§ 404, concerning dredge and fill permits in wetlands, or 401, concerning state waiver of certification rights, of the Federal Water pollution Control Act. Finally, the court finds that defendants' failure to publish regulations has not harmed plaintiffs since they were able to obtain them through discovery.

Counsel for Plaintiffs
Jon T. Brown, Stephen E. Roady
Brown & Roady
1333 New Hampshire Ave. NW, Suite 1070, Washington DC 20036
(202) 466-6142

Joseph L. Lenihan, General Counsel
Louisville and Nashville R.R. Co.
908 W. Broadway, Louisville KY 40203
(502) 587-5000

James T. B. Tripp
Environmental Defense Fund, Inc.
475 Park Ave. S., New York NY 10016
(212) 686-4191

William A. Butler
National Audubon Society
950 Third Ave., New York NY 10022
(212) 832-3000

Stewart L. Udall
Hill, Christopher & Phillips
1900 M St. NW, Washington DC 20036
(202) 452-7000

Counsel for Defendants
Lewis K. Wise, Lawrence Maloney, Edward Christenburg, Glenn V. Whitaker
Civil Division
Department of Justice, Washington DC 20530
(202) 633-3786

Hunter M. Gholson
Gholson, Hicks & Nichols
Court Sq. Towers, 695 Second Ave. S., Columbus MS 39701
(601) 327-0662

William L. Robertson Jr., Engineer Division
Army Corps of Engineers, 510 Title Bldg., 30 Pryor St. SW, Atlanta GA 30303
(404) 221-6754

Jane McIntire
Office of Chief Counsel
Army Corps of Engineers, 20 Massachusetts Ave. NW, Washington DC 20314
(202) 272-0027