Texas Committee on Natural Resources v. Marsh

No. 83-2145 (5th Cir. September 17, 1984)

The court holds that it erred in using the arbitrary and capricious standard of review to evaluate the discussion of alternatives in an environmental impact statement (EIS). The court denies a petition for rehearing en banc, but corrects its earlier statement of the standard of review. The use of the arbitrary and capricious standard by the court conflicts with the "hard look" standard annunciated by the Supreme Court. The court deletes the offending sentence from its earlier opinion, 14 ELR 20650, and inserts replacement language applying a reasonableness standard to agency limitations on the scope of the alternatives discussed in an EIS.

Counsel are listed at 14 ELR 20650.

Before TATE, JOLLY and DAVIS, Circuit Judges.

[14 ELR 20796]

E. GRADY JOLLY, Circuit Judge:

ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

No member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Federal Rules of Appellate Procedure and Local Rule 35) the Suggestion for Rehearing En Banc is DENIED.

The appellees have raised a number of issues in their petition for panel rehearing, some of which we addressed in the panel opinion. Primarily, the appellees are concerned that the panel did not apply the correct standards of review for determining the adequacy of the environmental impact statement for the Cooper Lake project. The appellees have identified one area in which the panel opinion requires correction. It involves the proper standard of review of the discussion of alternatives to the proposed project in the environmental impact statement. The panel opinion, 736 F.2d 262, erroneously states that an "arbitrary and capricious" standard must be applied to the Corps' decision not to discuss certain alternatives to the project. The appellees correctly point out that this statement conflicts with the "hard look" standard developed by the Supreme Court and cited by the panel earlier in the opinion. Accordingly, we withdraw the second sentence of the second full paragraph on page 4757, 736 F.2d 270, and insert in its place the following:

An environmental impact statement may not be held insufficient by a court merely because the agency has failed to discuss in it every conceivable alternative to the proposed project. Federal agencies must be free to make reasonable limitations on the scope of their discussions of such alternatives.

The petition for panel rehearing is GRANTED for the purpose of changing the opinion as stated above. In all other respects, the petition for rehearing is DENIED.