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Kentucky ex rel. Beshear v. Alexander

ELR Citation: 11 ELR 20787
Nos. Nos. 80-3452 et al., 655 F.2d 714/16 ERC 1353/(6th Cir., 07/21/1981)

Rejecting a challenge by the Commonwealth of Kentucky, the circuit court reverses the district court's invalidation of an environmental impact statement (EIS) prepared by the Army Corps of Engineers concerning the construction of the Clark Maritime Complex, a port and industrial complex on the Ohio River near Jeffersonville, Indiana. The circuit court observes that the lower court, in faulting the Corps for not evaluating three alternative Indiana sites, failed to address the preliminary issue of whether these alternatives were feasible. The court finds an adequate basis in the record as a whole for the Corps' rejection of the alternatives as economically infeasible, and notes that appellee provided no meaningful comment on this issue during the proceedings before the Corps. It also holds that other conclusions in the EIS were not arbitrary. An alternative site near Louisville, Kentucky, was properly regarded as too speculative. Louisville authorities had sought no permit for it, and Kentucky itself did not urge it as an alternative in commenting on the EIS. A Corps finding that the widening of a channel in the Ohio River would not significantly increase erosion at the port site was based solidly on two studies and similarly was not challenged during the Corps' proceedings. Finally, environmental effects of petroleum handling at the port were considered adequately if not intensively in the EIS.

Counsel for Commonwealth of Kentucky
Steven L. Beshear, Attorney General; David K. Martin, Dale D. Brodkey, Ass't Attorneys General
Department of Law, State Capitol, Frankfurt KY 40601
(502) 564-7600

Lively M. Wilson, James D. Moyer
Wallace, Gordinier, Wilson, Ruck & Cooper
3400 First Nat'l Tower, Louisville KY 40202
(502) 587-3400

Counsel for Federal Parties
Peter R. Steenland Jr.
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2748

John L. Smith, U.S. Attorney; Hancy Jones, Ass't U.S. Attorney
U.S. P.O. & Cthse. Bldg., 601 W. Broadway, Louisville KY 40202
(502) 582-5911

Counsel for Intervenor State of Indiana
Theodore L. Sendak, Attorney General; David C. Weigel
219 State House, Indianapolis IN 46204
(317) 232-6201

Before: KEITH, BROWN, and KENNEDY, Circuit Judges.