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South Carolina Dep't of Wildlife & Marine Resources v. Marsh

Citation: 19 ELR 20727
No. No. 88-2840, 866 F.2d 97/29 ERC 1227/(4th Cir., 01/24/1989)

The court holds that the operation of pumped storage generators by the Corps of Engineers on the Savannah River should be enjoined pending completion of a supplemental environmental impact statement addressing the adverse effects of pumped storage, but that the installation of the generators may proceed. The Corps had challenged a preliminary injunction prohibiting both the operation and the installation of the generators. The court holds that the district court, in issuing the injunction, did not clearly err in finding that plaintiffs were likely to prove that the Corps had violated the National Environmental Policy Act by preparing an environmental impact statement that inadequately addressed the environmental risks of operating the proposed pumped storage facilities. The court also holds that the district court did not abuse its discretion in determining that the balance of hardships favors plaintiffs. However, the court holds that the scope of the injunction was broader than necessary to protect against the environmental risk. Installation alone of the generators, which have already been purchased, will cause no environmental damage. Because operation of the generators in either their pumping or generating mode may create a risk of harm to the environment, their operation, but not their installation, should be enjoined.

Counsel for Appellants
Michael Paul Healy
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2757

Counsel for Appellees
Ellison D. Smith IV
Smith & Bundy
P.O. Box 579, Charleston SC 29402
(803) 577-6302

Buford S. Mabry Jr.
South Carolina Wildlife and Marine Resources Department
P.O. Box 167, Columbia SC 29202
(803) 734-4006

Before WILKINS, Circuit Judge, HOWARD, United States District Judge for the Eastern District of North Carolina, sitting by designation, and MERHIGE, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.