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Anson v. Eastburn

Citation: 14 ELR 20528
No. No. TH 82-114 C, 582 F. Supp. 18/(S.D. Ind., 11/22/1983)

The court holds that the Corps of Engineers' National Environmental Policy Act (NEPA) environmental impact statement (EIS) adequately addressed the need for a proposed power plant and the environmental effects of its power transmission lines. The court first rules that the Corps adequately addressed the need for the proposed plant. The Council on Environmental Quality's NEPA regulations require a statement of the underlying purpose and need for a project, but the court rules that the regulations do not require a de novo determination of need. An agency may use reports furnished by the permit applicant in fulfilling NEPA requirements so long as the agency performs an independent evaluation of the environmental issues. This the Corps did. Even if the Corps was arguably wrong in its evaluation, NEPA is satisfied. To judge the correctness of the evaluations is beyond the scope of judicial review under NEPA.

Next, the courts holds that the Corps adequately considered the environmental effects of power transmission lines that the Corps permitted to cross navigable waters. The Corps' permit jurisdiction under §10 of the Rivers and Harbors Act only extends to areas in and affecting navigable waters, and under NEPA the Corps need not address the placement or size of the lines other than as they affect the river crossings. The project EIS adequately discusses the power lines.

Plaintiffs' remaining claims are based on conclusions or environmental studies not in the administrative record. The court rules that so long as the Corps met all the procedural requirements of NEPA and compiled a record sufficient to allow informed decisionmaking, the challanges must fail. The court grants the defendants summary judgment on the NEPA issues.

Counsel for Plaintiffs
Max E. Goodwin
Mann, Chaney, Johnson, Goodwin & Williams
P.O. Box 1643, Terra Haute IN 47808
(812) 232-0107

Counsel for Defendants
Sara E. Barker, U.S. Attorney
274 U.S. Cthse., 46 E. Ohio St., Indianapolis IN 46204
(317) 269-6333

Jennifer Payton
Office of District Counsel
Army Corps of Engineers, Louisville District
P.O. Box 59, Louisville KY 40201
(502) 582-5678

Edward Berlin, Robert S. Taylor
Swidler, Berlin & Strelow
1000 Thomas Jefferson St. NW, Washington DC 20007
(202) 342-5500

Henry J. Price
Barnes & Thornburg
1313 Merchants Bank Bldg., Indianapolis IN 46204
(317) 638-1313