Supplemental EIS Mandated for Tennessee-Tombigbee Waterway

The National Environmental Policy Act's (NEPA's) requirement that environmental impact statements (EISs) be prepared for "major Federal actions significantly affecting the quality of the human environment"¹ has been well defined by the courts and is now a fact of life with which federal agencies routinely contend. Less well defined or accepted, however, is the requirement that impact statements be supplemented when important new information comes to light or when a project has been modified such that the original EIS is rendered inadequate. To this relatively immature area of the case law has recently been added a major ruling by the Fifth Circuit.

In Environmental Defense Fund, Inc. v. Marsh,² the court ordered that construction on major portions of the controversial Tennessee-Tombigbee Waterway project (Tenn-Tom or TTW) be enjoined pending completion of a supplemental environmental impact statement (SEIS). The court, although reluctant to impede the completion of the mammoth project, was unable to find a reasonable basis for the Corps of Engineers' failure to prepare an SEIS given the sweeping revisions that had been made in the design of the project since the initial EIS was prepared.

NEPA's Supplementation Requirement

All requirements relating to environmental impact statements originate with § 102(2)(C) of NEPA.³ For "every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment," § 102(2)(C) requires a detailed statement on, among other things,⁴ the environmental impact of the proposed action. The statement, along with comments from other federal agencies, is to be made available to the President, the Council on Environmental Quality (CEQ), and the public and must accompany the proposal through the agency's review process.⁵

Although NEPA was enacted in 1969, no authoritative, government-wide regulations for the implementation of the EIS requirements appeared until 1979. The Council on Environmental Quality had issued guidelines in 1973, but they were generally considered advisory only.⁶ Although in 1977 President Carter directed CEQ to "issue regulations to Federal agencies for the implementation of the procedural provisons of NEPA,"⁷ the legal significance of CEQ's new NEPA regulations, which became effective on July 30, 1979, was still questioned. However, in 1979, the Supreme Court ruled that they are "entitled to substantial deference," and characterized them as "mandatory regulations applicable to all federal agencies."⁸

NEPA itself contains no express provisions for supplemental EISs. Such documents, however, received early judicial approval as a means for remedying inadequate EISs or giving proper environmental consideration to post-EIS project changes.⁹ Prior to July 30, 1979, CEQ's guidelines merely suggested that supplemental EISs be prepared.¹⁰ The NEPA regulations, however, contain a mandatory supplementation requirement:

(1) Shall prepare supplements to either draft or final environmental impact statements if:

(i) The agency makes substantial changes in the proposed action that are relevant to environmental concerns or

(ii) There are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.

(2) May also prepare supplements when the agency determines that the purposes of the Act will be furthered by doing so.

(3) Shall adopt procedures for introducting a supplement into its formal administrative record, if such a record exists.

(4) Shall prepare, circulate, and file a supplement to a statement in the same fashion (exclusive of scoping) as a draft and final statement unless alternative procedures are approved by the Council.¹¹

This provision not only specifies the circumstances under which an SEIS is to be written but requires that the document [11 ELR 10214] be prepared and circulated with virtually all the formality of an initial EIS.

A supplementation requirement also appears in the Corps' NEPA regulations. Long-standing Corps regulations called for preparation of an SEIS for projects whose design features were "modified significantly."¹² Current Corps regulations are no less demanding.¹³

The Tenn-Tom Litigation

Known by its detractors as a "clone of the Mississippi," the 253-mile Tennessee-Tombigbee Waterway was designed to provide barge operators a shortcut from the Tennessee River to the Gulf of Mexico. At present, traffic originating on the Tennessee River reaches the Gulf by way of the Ohio and Mississippi Rivers. The TTW would exit the Tennessee River near the common border of Tennessee, Alabama, and Mississippi, flow south through an extensive cut to the head of the Tombigbee River, and follow the Tombigbee south to its junction with the Black Warrior-Tombigbee Waterway (BWT) in west-central Alabama. The BWT, which originates near Birmingham, continues south to Mobile Bay and the Gulf. A major project by any measure, the TTW is now expected to cost about $2 billion, of which $800 million has already been spent. Companion improvements on the BWT, still in the planning stage, would cost an additional $1 billion.¹⁴

Although first recommended to Congress in 1939 and authorized in 1946, the Tenn-Tom remained on the drawing board until 1971. In that year the Corps prepared an environmental impact statement based on a 1966 economic study, and Congress appropriated the first construction funds. The EIS was upheld by a district court and its decision was affirmed by the Fifth Circuit.¹⁵

With construction underway, and after substantial cost increases due to design changes and inflation, a revised economic analysis was prepared in 1976. This analysis publicly revealed for the first time major changes in the TTW design as well as increased traffic projections. When the Corps did not prepare an SEIS on the revised project plans, the Environmental Defense Fund, Inc., other environmental groups, and the Louisville and Nashville Railroad filed a second suit in federal district court, requesting an injunction against continued construction of the waterway until the Corps has prepared an SEIS and Congress had specifically authorized expansion of the project.¹⁶ In the first of two decisions, the district court in Environmental Defense Fund, Inc. v. Alexander¹⁷ held that the equitable doctrine of laches barred any challenge to the Corps' authority to build the TTW in accordance with plans that were publicly known by 1971. In addition, it held that the post-1971 changes fell within the Corps' authority to make discretionary changes in congressionally approved projects without securing renewed congressional approval. This decision was upheld on appeal.¹⁸

In the second decision,¹⁹ the district court rejected plaintiffs' claims under NEPA. The court first held that a challenge to the 1971 EIS based on a failure to consider downstream impacts on the BWT and Mobile Harbor was barred by the doctrine of res judicata. Since those changes had been at least contemplated in 1971, it reasoned that this challenge could have been raised in the earlier litigation in which the sufficiency of the 1971 EIS was upheld. Further, the court ruled that an SEIS for the TTW need not be prepared. It found that the Corps complied with its own NEPA regulations by preparing supplemental environmental reports (SERs) since no major changes had occurred warranting preparation of an SEIS.²⁰

The Fifth Circuit's Decision

The Fifth Circuit Court of Appeals, in Environmental Defense Fund, Inc. v. Marsh,²¹ reversed in part and affirmed in part the district court's decision and ordered that aspects of the construction of the TTW be halted pending completion of an SEIS. Although the court took notice of the new CEQ regulations and the new conforming Corps regulations, it found no need to apply them to issues that arose in 1976. Rather, it derived a supplementation duty directly from NEPA itself and from longstanding Corps regulations. Although NEPA does not specifically require an SEIS, the court read NEPA broadly to require supplementation when subsequent project changes can be classified as "major Federal actions significantly affecting the quality of the human environment." The standard the court applied was thus "whether the post 1971 changes in the TTW will have a 'significant' impact upon the environment" not previously covered by the 1971 EIS. The operative word in this test, [11 ELR 10215] the court said, is "'significant,' a chameleon-like word that takes its functional meaning from its context."²²

The court first considered the environmental significance of an increase in projected traffic on the waterway. The Corps' 1976 study revealed that barge traffic in the first year of the waterway's operation would be 28 million tons, rather than the 8 million tons projected in the 1971 EIS, and would include nine times the amount of coal previously forecast. The Corps argued that this revised traffic estimate was not significant or new because the 1966 economic study, upon which the EIS was based, projected traffic at the same level by the year 2010. Rejecting this argument, the court found that "[t]he 1971 EIS did not discuss the eventual impact of such a traffic level on the environment, much less the impact of that level if achieved in the first year."²³ Plaintiffs had presented unrebutted evidence of the environmental significance of the increased traffic in the form of increased stream turbidity, bank sloughing, congestion, and pollution.²⁴

A design change revealed in the 1976 study was an increase in land use from 70,000 acres to 105,000 acres. The district court found this increase insignificant in part because major sections of the additional land would be unaffected by construction and would not result in the destruction of habitat.²⁵ The Fifth Circuit rejected this reasoning, framing the question not as whether major sections would not be affected, but whether some sections would be. Plaintiffs' evidence, again unrebutted, showed that at least some significant portions of the land would be used for spoil disposal. In addition, the Corps admitted that substantial portions of the new land would be "destroyed or substantially modified."²⁶

The 1976 study also revealed a change in the design of a 45-mile section of canal from a "perched canal," created by artificial levees on both sides, to a "chain of lakes," using an artificial levee on one side and a natural barrier of hills on the other. In finding this change environmentally insignificant, the district court relied on its earlier finding, concerning the validity of the congressional authorization for the project, that the new design does not "materially change the plan of improvement."²⁷ The Fifth Circuit, however, distinguished between what is "material" or "significant" from the standpoint of congressional authorization, and what is "significant" to the environment. Plaintiffs had presented undisputed evidence of what the Fifth Circuit termed "very significant" environmental impacts from the chain-of-lakes design, including the flooding of an additional 5,000 acres and the waterlogging of an additional 50,000 acres.²⁸

Another design change was the straightening of the Tombigbee River using cutoffs that would isolate 21 miles of the previous channel. Though the district court had essentially ignored the environmental implications of this change,²⁹ the Fifth Circuit was presuaded by plaintiffs' evidence, once again unrebutted, which showed that the cutoffs would greatly increase loss of wildlife habitat, adversely affect thousands of acres of land adjacent to the new cuts, and possibly create thousands of acres of stagnant and eutrophic water. In its view the sum of the environmental impacts associated with the revised project plans was more than sufficiently "significant" to require supplementation of the EIS.³⁰

The courts' rulings on other issues were of less immediate consequence. The court refused to require preparation of a comprehensive environmental impact statement embracing modifications in the Black Warrior-Tombigbee Waterway that would be needed to accommodate traffic from the TTW. It found that since there was no proposal yet for federal action on the BWT, there was no need to file an EIS addressed to that project.³¹

The court also refused to review alleged errors in the Corps' latest computation of costs and benefits for the project. The Fifth Circuit has in the past reviewed benefit/cost ratios for Corps projects, but only as part of a broader review of an EIS.³² Since the ratios at issue had never appeared in any EIS, there was no private right of review.³³ The court, however, disapproved any future use by the Corps of an artificially low interest rate in computing costs and benefits for the project, on grounds that local assurances of support required under the Water Resources Development Act had not been obtained.³⁴

Discussion

The SEIS Determination

The legal standard governing the preparation of supplemental impact statements which emerges from the Fifth Circuit's opinion is drawn from the test for determining initially whether an EIS is required for a project. The question to be asked is whether the environmental impacts of a project change or new information is significant. While the Fifth Circuit fairly characterized this standard as "chameleon-like," ten years of case law [11 ELR 10216] and administrative experience has equipped the agencies to make these determinations without undue difficulty. In this respect the Tenn-Tom ruling is logical and consistent with the spirit of NEPA's requirements.³⁵

A question remains whether CEQ's SEIS regulation has established a standard that differs materially from the court's "significance" test.Section 1502.9(c)(1)(i) states somewhat ambiguously that an SEIS must be prepared if the agency makes "substantial changes in the proposed action that are relevant to environmental concerns."³⁶ In a 1980 decision, the District Court for the District of New Mexico stated that, "[t]his 'substantial change' prong is consistent with the judicial conclusion that a new or supplemental EIS needs to be prepared only where there has been a 'significant' change in a project during the interval since the existing EIS record was prepared."³⁷ This statement suggests that the "significance" test has not been materially modified by the CEQ regulation.³⁸

Beneficial Impacts

A further question is the degree to which project changes that are beneficial to the environment require supplementation of an EIS. In Tenn-Tom, part of the district court's rationale for regarding theproject's increased land use as insignificant was that the additional lands were acquired to mitigate environmental impact.³⁹ Rejecting this reasoning, the Fifth Circuit said:

[M]erely because some of the new land acquisitions may have been intended to "mitigate environmental impact" does not shield those acquisitions from review under NEPA and the Corps' own regulations. The proper question is not the intent behind the acquisitions, but the significance of the new environmental impacts. And even if the Corps was correct in deciding that the new land use will be beneficial in impact, a beneficial impact must nevertheless be discussed in an EIS, so long as it is significant. NEPA is concerned with all significant environmental effects, not merely adverse ones.⁴⁰

A similar point arose concerning the chain-of-lakes design, which was substituted for the proposed canal. In part, the district court reasoned that, "[p]lainly, the chain-of-lakes design in the canal section was adopted because of its environmental and aesthetic advantages."⁴¹ The Fifth Circuit found this an inadequate basis for ruling against a need for supplementation, concluding that

[e]ven if the Corps correctly decided that the design is superior in terms of overall environmental impact, that decision does not dispose of the material issue before the court: does the design have any significant new environmental impacts, whether beneficial or harmful? The original perched canal design may have been so problematic that the new flooding, waterlogging, and environmental dynamics of the chain-of-lacks design are a net improvement. But as discussed in section B. above, that improvement may still be significant for the purposes of NEPA ….⁴²

There is precedent for the Fifth Circuit's strict approach on beneficial impacts. In a 1973 decision,⁴³ the court expressed disapproval of the Department of Housing and Urban Development's practice of examining only adverse environmental impacts. It said that:

[a] close reading of Section 102(2)(C) in its entirety discloses that Congress was not only concerned with just adverse effects but with all potential environmental effects that affect the quality of the human environment.⁴⁴

On the other hand, a project modification involving purely beneficial impacts was considered not to require an SEIS in a recent decision by the First Circuit.⁴⁵ At issue were changes in mitigation measures for a highway construction project. The court found it undisputed that all of the changes constituted improvements in mitigation techniques. It added, "a requirement that a supplemental EIS be prepared each time such improvements were instituted [11 ELR 10217] would surely serve as a practical deterrent to just such desirable efforts."⁴⁶

The CEQ regulations also address this question, stating that:

[i]mpacts may be both beneficial and adverse. A significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial.⁴⁷

If CEQ had wanted to say that purely beneficial effects can be significant, it could have done so in a more direct manner. The use of the term "on balance," however, seems to incorporate rulings in both of the lines oif cases discussed above. Thus, a project or project alteration presenting purely beneficial effects may not require an EIS or an SEIS, whereas a mixture of beneficial and adverse effects clearly triggers § 102(2)(C)'s requirements.

Standard of Review

When reviewing an agency's decision not to supplement an EIS, the courts appear to apply the same standard used when reviewing a decision not to prepare an EIS in the first instance.⁴⁸ However, the circuit courts have articulated markedly divergent formulations of this standard, ranging from the deferential "arbitrary and capricious" standard traditionally applied to informal agency decisions,⁴⁹ to review do novo.⁵⁰ In Tenn-Tom, the court stated that:

[i]t is the initial responsibility of the Corps to … decide whether or not a supplemental EIS is necessary. If a party affected by that decision challenges it in court and raises a "substantial environmental issue," the reviewing court should uphold the agency's decision only if it is reasonable, rather than use the deferential "substantial evidence" standard.⁵¹

While the court thus appeared to side with those circuits favoring a strict reviewing standard, this "split" among the courts seems to turn on semantics rather than substance. As the Sixth Circuit noted recently in respect to a negative Corps EIS determination, "[n]o matter what standard courts have used, they have looked to see whether the Corps made a reasoned determination."⁵²

Format for the Negative Determination

Given the judicial requirement for a reasoned agency determination, an important question is the procedure to be used by agencies to announce a no-SEIS decision. Although CEQ's NEPA regulations provide that a decision not to issue an initial EIS must be announced in a "finding of no significant impact" (FONSI) based on an environmental assessment,⁵³ they contain no explicit directions on the format for a decision not to issue an SEIS.

In practice, varying approaches have been approved by the courts. In Monarch Chemical Works v. Thone,⁵⁴ the decision not to supplement an EIS was embodied in an 11-page "Written Statement" with 15 exhibits, copies of which were sent to all local, state, and federal agencies which received a copy of the original EIS. In Warm Springs Dam Task Force v. Gribble,⁵⁵ the facts regarding the Corps' new studies of an earthquake fault near the dam were submitted to the court in the form of an affidavit and this was deemed sufficient for upholding the decision not to further supplement the EIS. More recently, in National Indian Youth Council v. Andrus,⁵⁶ the court found that a FONSI may be used to embody a decision not to supplement an EIS, but did not hold that a FONSI must be prepared. The lesson of these cases is that the particular format of the agency's determination is less important than the more basic need for a clear articulation of its rationale.

A key to the Corps' undoing in Tenn-Tom was the fact that it failed to articulate the reasons for its decision not to supplement the EIS. In its search for an explanatory Corps document, the court found only an internal Corps memorandum couched in the following conclusory terms:

The facts to date clearly show … that no significant deviations have been discovered or actions taken which were not in the best interest of the natural environment in the project area.⁵⁷

Neither the rationale for this conclusion nor its underlying data were spelled out. The court concluded that:

When we look to the reasonableness of the Corps' decision in light of the plaintiffs' evidence, we find no solid evidence that the Corps has ever asked the right question, much less answered it reasonably ….

Moreover, even if the Corps had asked the right question, the record indicates that they had no evidence to reach a conclusion.⁵⁸

Under these circumstances, the court had no basis for its decision other than plaintiffs' unrebutted evidence concerning the environmental significance of the project changes.

Conclusion

Given the long lifespan of many public works construction projects and the length of time that often passes between the initial preparation of the EIS and full-scale implementation of the project, the issue of EIS supplementation may be expected to arise frequently with respect to the larger projects. In such cases, NEPA challenges present the courts with the most vexing choices. While the projects commonly entail massive environmental impacts and thus arguably deserve strict compliance with NEPA, the fact that they are partially completed makes it very difficult to redress plain violations of the Act without imposing a substantial economic burden on someone, usually the taxpaying public. The Fifth Circuit, admitting freely its discomfort at having to accommodate these opposing pressures, limited the scope of its remedy to restraining [11 ELR 10218] those aspects of the project that were revised after the completion of the EIS. In addition, it expressly authorized the district courtto grant exemptions from the injunction, based upon a balancing of the public interest. In this respect the court of appeals' ruling stands as a useful model to which future courts can turn when faced with similar circumstances.

Tenn-Tom also provides important lessons to agencies seeking to avoid mid-project interruptions on NEPA grounds. The most obvious is that agencies choosing not to prepare SEISs can minimize their difficulties upon judicial review if they make an effort to demonstrate the reasonableness of their decision in a reviewable document.⁵⁹ Had Tenn-Tom been a closer case, for example, the Corps might have avoided its setback if it had prepared a carefully reasoned statement showing why each of the TTW developments which arose subsequent to the 1971 EIS would not have a significant environmental impact that was not previously considered.

Second, the Fifth Circuit's opinion teaches that when project alterations or newly discovered information suggest that an SEIS might be required, an agency is well-advised to stop and make a careful evaluation of its NEPA obligations. Subjective judgments that "things don't seem that much different" will not suffice. If the newly discovered impacts are significant, regardless of whether they pale in comparison to a mammoth public works enterprise, supplementation of the original EIS may be relatively inexpensive "insurance" against a possibly devastating midconstruction injunction.

1. NEPA § 102(2)(C), 42 U.S.C. § 4332(2)(C), ELR STAT. & REG. 41010.

2. 651 F.2d 983, 11 ELR 21012 (5th Cir. July 13, 1981).

3. 42 U.S.C. § 4332(2)(C), ELR STAT. & REG. 41010.

4. NEPA lists five factors to be considered in the EIS:

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

Id.

5. Id. See generally, Calvert Cliffs Coordinating Committee, Inc. v. Atomic Energy Commission, 449 F.2d 1109, 1 ELR 20346 (D.C. Cir. 1971).

6. See generally, Comment, Reorganization: Council on Environmental Quality Emerges Stronger, Review of Federal Agencies Continues, 7 ELR 10168 (1977).

7. Exec. Order No. 11991 § 1, 3 C.F.R. 124 (1978).

8. Andrus v. Sierra Club, 442 U.S. 347, 358, 9 ELR 20390, 20393 (1979).

9. Natural Resources Defense Council v. Callaway, 524 F.2d 79, 92, 5 ELR 20640, 20646 (2d Cir. 1975).

10. CEQ's guidelines provided that

[a]n agency may at any time supplement or amend a draft or final environmental statement, particularly when substantial changes are made in the proposed action, or significant new information becomes available concerning its environmental aspects.

40 C.F.R. § 1500.11(b)(1979).

11. 40 C.F.R. § 1502.9(c) (1980), ELR STAT. & REG. 46021.

12. The Corps' regulations required the preparation of a complete SEIS in either of the following situations:

(1) If the final environmental statement previously filed clearly failed to comply with the requirements of NEPA: e.g., failed to discuss alternatives or failed to disclose the environmental impacts of the proposed action, or if there has been a major change in the plan of development or method of operation of the proposed action.

(2) Whenever the final environmental statement on file becomes deficient because certain environmental effects of the project were not discussed or design features or project purposes were modified significantly subsequent to the filing of the original environmental statement.

They also allowed the filing of a more informal document in relation to less significant changes:

(3) Whenever it is necessary only to clarify or amplify a point of concern raised after the final environmental statement was filed with CEQ (and such point of concern was considered in making the initial decision) or if comments on the final environmental statement are received from Federal, State or local governmental agencies or the public, the clarification, amplification or response to the comments received shall be prepared and filed with CEQ. No waiting periods are required ….

33 C.F.R. § 209.410(g) (1979).

13. See 45 Fed. Reg. 56760, 56764-65 (1980) (to be codified at 33 C.F.R. § 230).

14. 651 F.2d at 990, 11 ELR at 21014.

15. Environmental Defense Fund, Inc. v. Corps of Engineers, 348 F. Supp. 916, 2 ELR 20536 (N.D. Miss. 1972), aff'd 492 F.2d 1123, 4 ELR 20329 (5th Cir. 1974).

16. In addition to challenging the SEIS omission, plaintiffs argued that a pre-1971 plan to expand the waterway's width from 200 feet to 300 feet had not been authorized by Congress.

17. 467 F. Supp. 885, 9 ELR 20492 (N.D. Miss. 1979).

18. 614 F.2d 474, 10 ELR 20302 (5th Cir. 1980).

19. 501 F. Supp. 742, 11 ELR 20242 (N.D. Miss. 1980).

20. See note 12, supra. The SERs apparently contained little substantive analysis of the post-1971 project changes. 651 F.2d at 989-90, 11 ELR at 21014.

21. 651 F.2d 983, 11 ELR 21012 (5th Cir. 1981).

22. 651 F.2d at 991-92, 11 ELR at 21015.

23. 651 F.2d at 992, 11 ELR at 21015.

24. Id.

25. 501 F. Supp. at 753, 11 ELR at 20247.

26. 651 F.2d at 993, 11 ELR at 21016.

27. 501 F. Supp. at 753, 11 ELR at 20247.

28. 651 F.2d at 993-95, 11 ELR at 21016-17.

29. 501 F. Supp. at 753, 11 ELR at 20247.

30. 651 F.2d at 995, 11 ELR at 21017. Another project change emphasized by appellants was the disposal of 9 million cubic yards more spoil than was projected in the 1971 EIS. Here, the Fifth Circuit agreed with the lower court's finding of insignificance. Acknowledging that 9 million cubic yards is "an enormous amount of spoil," the Fifth Circuit nevertheless concluded that it was not a significant amount when viewed in relation to the 260 million tons of spoil disposal already discussed in the 1971 EIS. 651 F.2d at 996, 11 ELR at 21017.

31. The court added, however, that it expects the Tenn-Tom SEIS to contain an analysis of the impact of traffic from the TTW on the BWT and Mobile Harbor. 651 F.2d at 999-1000, 11 ELR at 21019.

32. See South Louisiana Environmental Council, Inc. v. Sand, 629 F.2d 1005 (5th Cir. 1980). Leading Fifth Circuit decisions concerning cost-benefit analysis as applied to major federal water resource projects include Sierra Club v. Callaway, 499 F.2d 982, 4 ELR 20731 (5th Cir. 1974) and Montgomery v. Ellis, 364 F. Supp. 517, 3 ELR 20845 (N.D. Ala. 1973).

33. Here, the court added that the SEIS would provide an opportunity for plaintiffs to challenge the accuracy of the benefit-cost computations, to the extent they are incorporated into the SEIS. 651 F.2d at 1000-01, 11 ELR at 21019-20.

34. 651 F.2d at 1001-06, 11 ELR at 21020-22.

35. The significance test has been applied in several recent decisions where the need for an SEIS was alleged. In Monarch Chemical Works, Inc. v. Thone, 604 F.2d 1083, 9 ELR 20697 (8th Cir. 1979), after an EIS was prepared for a redevelopment project, a decision was made to construct a prison on the site instead. This project change was found not to be environmentally significant; the difference in environmental impacts between the old and new plans was minimal, with the new plans having a lesser impact in four ecological categories. Project changes were also found insignificant in Red Line Alert v. Adams, __ F. Supp. __, 10 ELR 20314 (D. Mass. Feb. 13, 1980) (change in terminus of proposed subway extension and change in excavation method); and in National Indian Youth Council v. Andrus, 501 F. Supp. 649, 11 ELR 20107 (D.N.M. 1980) (revision of mining plan).

New information or changed circumstances led a court of appeals to require EIS supplementation in Essex County Preservation Ass'n v. Campbell, 536 F.2d 956, 6 ELR 20577 (1st Cir. 1976). There, the announcement of a moratorium on the extension of an interstate highway was deemed significant because it would affect traffic flow on an existing segment of the highway that was proposed to be widened. On the other hand, in Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017, 10 ELR 20559 (9th Cir. 1980), new information about the dimensions of an earthquake fault near a proposed dam site was held not to require EIS supplementation. Further study showed that the fault's earthquake potential did not exceed the dam's engineered tolerance. New information also proved insignificant in Green Mountain Grange No. One v. Goldschmidt, __ F. Supp. __, 11 ELR 20079 (D. Vt. Nov. 26, 1980) (CEQ memorandum, state position paper, and advent of the energy crisis held not to shed new light on project impacts); Concerned Citizens on I-190 v. Secretary of Transportation, 641 F.2d 1, 11 ELR 20087 (1st Cir. Feb. 9, 1981) (new statute and regulations governing drinking water); and National Indian Youth Council, supra (archeological survey reports).

36. 40 C.F.R. § 1502.9(c)(1)(i), ELR STAT. & REG. 46021.

37. National Indian Yough Council v. Andrus, 501 F. Supp. 649, 662, 11 ELR 20107, 20112 (D.N.M. 1980).

38. CEQ's provision relating to new information is more obviously consistent with existing judicial standards, since it explicitly employs the significance criterion; it calls for EIS supplementation when "there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." 40 C.F.R. § 1502.9(c)(1)(ii), ELR STAT. & REG. 46021.

39. 501 F. Supp. at 753, 11 ELR at 20247.

40. 651 F.2d at 993, 11 ELR at 21016.

41. 501 F. Supp. at 753, 11 ELR at 20247.

42. 651 F.2d at 994, 11 ELR at 21016 (emphasis in original).

43. Hiram Clarke Civic Club v. Lynn, 476 F.2d 421, 3 ELR 20287 (5th Cir. 1973).

44. 476 F.2d at 424-25, 3 ELR at 20290 (emphasis in original).

45. Concerned Citizens on I-190 v. Secretary of Transportation, 641 F.2d 1, 11 ELR 20087 (1st Cir. Feb. 9, 1981).

46. 641 F.2d at 6, 11 ELR at 20090.

47. 40 C.F.R. § 1508.27(b)(1), ELR STAT. & REG. 46034.

48. See Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017, 10 ELR 20559 (9th Cir. 1980); Monarch Chemical Works, Inc. v. Thone, 604 F.2d 1083, 9 ELR 20697 (8th Cir. 1979); National Indian Youth Council v. Andrus, 501 F. Supp. 649, 11 ELR 20107 (D.N.M. 1980).

49. Cf. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 1 ELR 20110 (1971).

50. See W. RODGERS, ENVIRONMENTAL LAW § 7.6 at 751 (1977).

51. 651 F.2d at 992, 11 ELR at 21015.

52. Boles v. Onton Dock, Inc., __ F.2d __, 11 ELR 20986 (6th Cir. July 16, 1981).

53. 40 C.F.R. § 1501.4(e), ELR STAT. & REG. 46017.

54. 604 F.2d 1083, 1087, 9 ELR 20697, 20698.

55. 621 F.2d 1017, 1026, 10 ELR 20559, 20563.

56. 501 F. Supp. 649, 660, 11 ELR 20107, 20112.

57. 651 F.2d at 996-97, 11 ELR at 21017-18.

58. Id.

59. Tenn-Tom does not address the timing of the determination. Questions remain as to the exact points during the progress of a project at which an agency must issue factually supported determinations not to act.