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Sierra Club v. Slater

ELR Citation: 27 ELR 21421
Nos. 96-3295, 120 F.3d 623/(6th Cir., 08/06/1997)

The court holds that environmental groups' and individuals' challenges involving the preparation of a final environmental impact statement (EIS) for a highway project in Toledo, Ohio, are time barred. The court rejects plaintiff-appellants' argument that because the National Environmental Policy Act (NEPA) contains no statute of limitations and creates an equitable remedy, the only applicable time limitation on their NEPA-related claims is that imposed by the doctrine of laches. These claims were brought pursuant to the Administrative Procedure Act (APA) and the six-year statute of limitations in the Tucker Act, 28 U.S.C. §2401(a), applies to APA actions. Under the APA, a right-of-action accrues at the time of final agency action. Although the court has never addressed the question, it appears well-established that a final EIS or record of decision (ROD) issued thereon constitutes final agency action for APA purposes. Plaintiff-appellants offer no case law support for their position that the relevant final agency action occurred in January 1995, when the Federal Highway Administration (FHwA) opted not to issue a supplemental EIS for the project. Plaintiff-appellants' position, moreover, defies logic because they complain of actions FHwA took when it approved the final EIS in February 1984 and issued the ROD in April 1984. Therefore, plaintiff-appellants' cause of action began to run in 1984 when the final EIS was approved.

The court next upholds the agencies' 1995 decision not to supplement the EIS. The court rejects plaintiff-appellants' argument that the district court improperly relied on a reevaluation environmental impact study that plaintiffs contend did not adequately take into account various adverse effects. The court holds that plaintiffs have failed to demonstrate that the agency decision in question was arbitrary and capricious. Plaintiffs have not pointed to any conflicting expert views, and their assertions are not supported by any citations to the record. While they contend that these adverse effects were not "adequately" taken into account, they do not dispute that the agencies in fact considered and addressed the effects. The court next addresses plaintiff-appellants' claim that in conducting the 1995 reevaluation, the agencies erroneously decided that no new historic or other sites under §4(f) of the Federal-Aid Highway Act were involved. The court notes that its treatment of this argument is determined by its earlier conclusion regarding the statute of limitations. There has been no change to the plan for the highway since the time of the initial EIS. Thus, nothing new occurred affecting the §4(f) properties in the period between the 1984 EIS and the 1995 reevaluation.

The court also holds that the U.S. Army Corps of Engineers' (the Corps') decision not to prepare an EIS in connection with the §404 permit process was not arbitrary or capricious. The Corps conducted a detailed survey, considered the project's impact, and determined that there would be no significant adverse effects. Plaintiff-appellants' claim that the Corps in fact found multiple adverse effects ignores the district court's observation that the language they point to is taken out of context, and refers either to temporary effects only, or to effects that would occur in the absence of a mitigation plan. The court further holds that the Corps was not required to prepare a final, detailed mitigation implementation plan before approving the §404 permit. A permit conditioned on future implementation of a mitigation plan complies with the Federal Water Pollution Control Act's dictates. Also, plaintiff-appellants are incorrect when they assert that the §404 permit was predicated merely on vague mitigation goals rather than on a sufficiently detailed plan. The mitigation plan the Corps relied on here was quite specific. The court also holds that the Corps' rejection of a particular alternative that plaintiff-appellants proposed was not arbitrary or capricious, and the Corps' failure to include in its public notice a requirement that the project receive water quality certification from the relevant state agency was harmless error.

Counsel for Plaintiffs
Lisa E. Jones
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Frederick C. Schoch, Ass't Attorney General
Attorney General's Office
State Office Tower
30 E. Broad St., Columbus OH 43266
(614) 466-3376

Before: CONTIE, RYAN, and BOGGS, Circuit Judges.