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Sierra Club v. Corps of Eng'rs

ELR Citation: 13 ELR 20326
Nos. Nos. 82-6125 et al., 701 F.2d 1011/18 ERC 1748/(2d Cir., 02/25/1983) Decisions at 12 ELR 20533 & 20742 aff'd

The Second Circuit affirms the district court decisions, 12 ELR 20519 and 20742, that the Federal Highway Administration (FHwA) and the Army Corps of Engineers violated the National Environmental Policy Act (NEPA) and that the Corps violated the Federal Water Pollution Control Act (FWPCA) in approving the Westway highway project in New York, but vacates the court's appointment of a special master and its ruling that the two agencies may not act as joint lead agencies. The court agrees with the district court that the environmental impact statement (EIS) did not provide enough information about the impact of the project on fisheries to allow the decisionmaker to fully consider environmental factors and that the conclusions about fisheries impact lacked a substantial basis in fact. Therefore, the FHwA's issuance of the EIS and the Corps' reliance on it violated NEPA.

The court also affirms the district court's ruling that the Corps' decision to issue a permit under §404 of the FWPCA was arbitrary and capricious because the Corps relied on the EIS without independently reviewing the fisheries information. However, the Second Circuit rules that neither §9 nor §10 of the Rivers and Harbors Act (RHA) provides a private right-of-action, and thus reverses the district court's ruling that the Corps violated §10 and affirms its rejection of appellees' claims under §9.

The Second Circuit rules that before the Westway project may proceed, the FHwA or the Corps must prepare a supplemental EIS on the fisheries issue. However, the supplemental EIS need not include information on nonfisheries issues since the district court found that the agencies' earlier consideration of such issues complied with NEPA. The mere passage of time does not warrant preparation of a supplemental EIS unless significant new information becomes available. In addition, although the Corps improperly relied on an EIS prepared by a state agency in making its permit decision, the court finds it unnecessary for the Corps to prepare a supplemental EIS on nonfisheries issues because it would be a wasteful duplication of an adequate EIS.

The Second Circuit upholds the district court's orders that the Corps and the FHwA keep records on all activities and communications occurring in connection with the project. However, the district court exceeded its authority in ruling that the two agencies could not act as joint lead agencies in preparing the EIS because that decision is within the discretion of the agencies. In addition, the district court's appointment of a special master to oversee the EIS preparation improperly interfered with agency discretion. The court rules that the district court's findings of bad faith, while in part supported in the record, do not demonstrate "extremely compelling circumstances" warranting so intrusive an application of this exceptional remedy.

[Related decisions are reported at 12 ELR 20533 and 13 ELR 20170 and 20347 — Ed.]

Counsel for Appellants
R. Nicholas Gimbel, Gaines Gwathmey III, Thomas D. Warren; John S. Martin Jr., U.S. Attorney
One St. Andrew's Plaza, New York NY 10007
(212) 791-0555

Milton S. Gould, Bernard D. Fischman
Shea & Gould
330 Madison Ave., New York NY 10017
(212) 370-8000

Gary H. Baise, Jonathan Z. Cannon, Karl S. Bourdeau
Beveridge & Diamond
1333 New Hampshire Ave. NW, Washington DC 20036
(202) 828-0200

Counsel for Appellees
Albert K. Butzel
Butzel & Kass
45 Rockefeller Plaza, New York NY 10111
(212) 765-1800

Kearse, J. joined by Oakes and Meskill, JJ.