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Lake Erie Alliance for the Protection of the Coastal Corridor v. Corps of Eng'rs

Citation: 12 ELR 20639
No. No. 79-110 B Erie, 526 F. Supp. 1063/18 ERC 1050/(W.D. Pa., 11/23/1981) Judgment for defendants

The court rules that the Corps of Engineers complied with the National Environmental Policy Act (NEPA), the Federal Water Pollution Control Act (FWPCA), and other environmental statutes in issuing a permit for preliminary construction in and near Lake Erie of facilities for a proposed steel mill. The court notes that in reviewing the environmental impact statement (EIS), its role is to ensure that NEPA's procedural requirements have been complied with, not to substitute its judgment for that of the agency. The EIS adequately considered the impact of the project on air, land, and water quality as well as human resources. Applying the rule of reason, the court rules that the Corps gave reasonable consideration to alternative sites, including partial alternatives utilizing different methods of achieving the steelmaker's objectives. While the Corps relied on data prepared by the applicant in preparing the EIS, it did not improperly delegate its responsibilities under NEPA to prepare the EIS since it independently evaluated all studies submitted by the applicant. The Corps also gave adequate consideration to the environmental impacts of the expansion of facilities in the harbor adjacent to the proposed steel mill project, to the requirements of the Great Lakes Water Quality Agreement of 1978 between the United States and Canada, and to the anticipated impacts on wetlands. The Corps is not required to supplement the EIS because it decided to culvert rather than divert Turkey Creek since the change was not substantial and did not involve significant new circumstances. The administrative record and the EIS indicate that the Corps did not violate the Fish and Wildlife Coordination Act or the Migratory Bird Act. While the Corps must consult with the federal and state fish and wildlife agencies, it need not adopt their positions. The court also rules that plaintiffs are barred by the doctrine of res judicata from relitigating the validity of the certification issued by the State of Ohio under § 401 of the FWPCA; a state court had already found the certification lawful. Nor must the Corps receive certification from Pennsylvania since the facility is not located in Pennsylvania. The Corps also met the § 401 requirements that the state be notified if discharges from a project in another state will affect its water quality. The Technical Team, which supervised the project, contained representatives from Pennsylvania. The court grants summary judgment in favor of defendants.

Counselfor Plaintiffs
Brent L. English
922 Leader Bldg., 526 Superior Ave. E., Cleveland OH 44114
(216) 241-3141

Thomas J. Kennedy
U. Pittsburgh School of Law
3900 Forbes Ave., Pittsburgh PA 15260
(412) 624-6200

Counsel for Defendants
Craig McKay
Pittsburgh Dist., Army Corps of Engineers

Fed. Bldg., 1000 Liberty Ave., Pittsburgh PA 15222
(412) 644-6889

Counsel for Intervenor-Defendant
Thomas Wright
U.S. Steel Corp., 600 Grant St., Pittsburgh PA 15230
(412) 433-1121