Sierra Club v. Marsh

No. 88-0116-B (701 F. Supp. 886 at 908) (D. Me. November 7, 1988)

The court holds that plaintiff's claims that construction by the Maine Department of Transportation (MDOT) of a causeway to, and a marine cargo terminal on, Sears Island would violate the Federal Water Pollution Control Act (FWPCA) and the National Environmental Policy Act (NEPA) raise questions to be considered in future litigation. The court first holds that plaintiff has standing under § 10 of the Administrative Procedure Act to sue the Coast Guard for allegedly violating § 9 of the Rivers and Harbors Act by not obtaining congressional consent before permitting MDOT to construct the causeway. The zone of interests protected by § 9 includes plaintiff's interests in the causeway's environmental impacts. The court holds that plaintiff is not likely to succeed on the merits of this claim, however, because the Coast Guard reasonably treated the proposed causeway site as a waterway whose navigable portions lie wholly within one state and thus as exempt from the congressional consent requirement.

The court next holds that questions remain as to the merits of plaintiff's claim that the Army Corps of Engineers violated FWPCA § 404 by issuing a permit without independently verifying the data produced by MDOT and its consultants, and challenged by the Environmental Protection Agency, regarding an alternative terminal site. Questions also remain regarding whether the Corps was justified in evaluating the suitability of an alternative site for MDOT's goal of eventually developing a larger facility, or should only have evaluated its suitability for the smaller project immediately at issue. The court also holds that questions remain regarding whether defendants violated NEPA. These questions involve whether defendants accepted data without assuring that the contractors who produced it had no conflicts of interest; whether the federal lead agency independently verified the environmental impact statement (EIS) produced by MDOT; whether the EIS adequately considered the project's secondary impacts, specifically the potential industrial development; and whether the EIS adequately discussed all reasonable alternatives, specifically whether it justifiably evaluated their suitability for MDOT's goal of eventually developing a larger facility, or should only have evaluated their suitability for the smaller project immediately at issue.

[Related opinions are published at 15 ELR 20911, 16 ELR 20487, and 19 ELR 20692.]

Counsel are listed at 19 ELR 20692.

[19 ELR 20699]

CYR, Chief Judge.

[19 ELR 20700]

In its earlier ruling denying the request for preliminary injunctive relief, see 'Memorandum Decision on Motion for Preliminary Injunction,' due to time constraints the court did not consider one of the four criteria established by Planned Parenthood League v. Bellotti, 641 F.2d 1006, 1009 (1st Cir.1981). The court now undertakes to do so in the context of this supplemental memorandum, with a view to focusing further litigation of the merits of the four claims brought by the plaintiffs.

I. PLAINTIFFS' RIGHT TO ASSERT VIOLATION OF RHA SECTION 9

A. Private Right of Action Under Section 9 of RHA

The Supreme Court has held that no private right of action exists under section 10 of the River and Harbor Act (RHA). California v. Sierra Club, 451 U.S. 287, 294-95 (1981). On that authority the Second Circuit correctly held, in Sierra Club v. United States Army Corps of Engineers, 701 F.2d 1011, 1033-34 (2d Cir.1983), that section 9 of the RHA likewise creates no private right of action.

B. Right of Action Under Section 10 of APA for Violation of Section 9 of RHA

Plaintiffs are proceeding not only against the alleged violator under section 9 of the RHA, but simultaneously under section 10 of the Administrative Procedure Act (APA), 5 U.S.C.A. § 702, against the permitting agency (i.e. the Coast Guard). The defendants argue that the plaintiffs lack standing under the APA to assert a violation of section 9 of the RHA, because plaintiffs' interests are not within the zone of interests protected by section 9 of the RHA. See Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153 (1970); Save Our Wetlands, Inc. v. Sands, 711 F.2d 634, 639 (5th Cir.1983). ("For [the plaintiffs] to have standing under APA Section 10, they must suffer injury in fact and the alleged injury must be to an interest arguably within the zone of interests to be protected or regulated by the statutes that the agencies were claimed to have violated.")

Defendants urge the court to accept the view that section 9 of the RHA was intended only to prevent the obstruction of interstate commerce in navigable waters, and not navigational interests of a recreational nature, or environmental interests. Defendants point to the Supreme Court's statement, in California v. Sierra Club, 451 U.S. at 295, that "the legislative history supports the view that the Act was designed to benefit the public at large by empowering the Federal Government to exercise its authority over interstate commerce with respect to obstructions on navigable rivers caused by bridges and other similar structures."

On the other hand, it does not appear that the quoted language from California v. Sierra Club was intended by the Court to exclude consideration of the environmental consequences of "obstructions on navigable rivers caused by bridges and other similar structures," id. Rather, as has been observed by the Fifth Circuit, the Coast Guard can deny a permit under section 9 on considerations of "conservation of natural resources, fish and wildlife, air and water quality, esthetics, scenic view, historic sites, ecology, and other public interest aspects of the waterway," Zabel v. Tabb, 430 F.2d 199, 214 n. 26 (5th Cir.1970) (quoting Our Waters and Wetlands: How the Corps of Engineers Can Help Prevent Their Destruction and Pollution, H.Rep. No. 91-917, 91st Cong.2d Sess. (1970)); see also United States v. Cumberland Farms of Connecticut, Inc., 826 F.2d 1151, 1158 (1st Cir.1987) (noting regulation of pollution under section 10 of the RHA by the Corps); Save Our Wetlands, 711 F.2d at 640. It has not been shown that the environmental consequences of the proposed Sears Island causeway are not within the zone of interests protected by section 9 of the RHA.

II. MERITS OF THE RHA CLAIM UNDER COUNT I

Plaintiffs contend that the Coast Guard violated section 9 of the RHA, 33 U.S.C. § 401,¹ by issuing MDOT a permit to construct a causeway from Sears Island to Kidder Point without the consent of Congress. Congressional consent is required unless the causeway is "built under the authority of the legislature of [a] State across [a] river] [ . . . [or] other waterway] [ the navigable portions of which lie wholly within the limits of a single State . . .," 33 U.S.C. § 401. Plaintiffs assert that the proposed causeway would not cross "a river] [ [or] other waterway] [" and that these particular waters are not "wholly within the limits of a single State."

Under the principle of ejusdem generis, plaintiffs argue that the generic term "waterways" must be read as akin to the more specific term "rivers" in the phrase "rivers and other waterways." The principle of ejusdem generis holds that "where general words follow an enumeration of specific items, the general words are read as applying only to other items akin to those specifically enumerated." Harrison v. PPG Industries, Inc., 446 U.S. 578, 588 (1980). Thus, plaintiffs contend that the waters between Sears Island and Kidder Point are not a waterway because those waters are not characteristic of a river. The Corps, on the other hand, defines "rivers and waterways" as "waterbodies" under 33 C.F.R. § 320.2(a), a less restrictive term than plaintiffs urge upon the court.

First, the court has difficulty with the premise of plaintiffs' argument, because it has not been made clear that the waters between Kidder Point and Sears Island do not have the characteristics of a tidal river.

More importantly, plaintiffs would appear to gain nothing by demonstrating that the terms "rivers and other waterways," appearing in the second sentence of section 401, do not apply to these waters. For if that is the case, it would seem that there is no requirement of congressional consent for construction of this causeway, under the first sentence of section 401. In other words, unless the terms "rivers and other [navigable] waterways" apply to these waters, or unless these waters are covered by the terms "port, roadstead, haven, harbor, canal, navigable river, or other navigable water of the United States," see section 401 (emphasis added),² section 401 would not require congressional consent for the construction of this causeway.

Plaintiffs argue also that the waters between Sears Island and Kidder Point are [19 ELR 20701] not wholly within the State of Maine.³ Seemingly to the contrary, in United States v. Maine, 469 U.S. 504, 513 (1985), the Supreme Court held that "waters up to three miles seaward of the coastline are also within a State's boundary. . . ." Cf. 43 U.S.C. § 1301(c). For present purposes, the court finds that the waters between Sears Island and Kidder Point "lie wholly within" the State of Maine.

It appears that the plaintiffs are not likely to succeed on the merits of their claim that the Coast Guard violated the APA by treating the waters over which the causeway is to be built as "a river] [ [or] other waterway] [ the navigable portions of which lie wholly within the limits" of Maine.⁴

III. MERITS OF THE CWA CLAIM UNDER COUNT II

The gist of the Clean Water Act [CWA] claim is that the Corps improperly based its decision to grant a permit under CWA section 404, 33 U.S.C. § 1344, on MDOT's contention that a six-berth facility is the appropriate scale for use in evaluating practicable alternative sites for the project. Plaintiffs contend that realistic port usage projections suggest a need for no more than a two-berth facility. Plaintiffs therefore argue that Mack Point would offer a practicable alternative site for the port on the basis of any realistic cargo volume forecasts. In addition, plaintiffs argue that the Corps failed to make an independent review of the information prepared by MDOT and its consultants.

Section 404(b) of the CWA, 33 U.S.C. § 1344(b), requires that Corps permits for the discharge of dredged or fill materials into navigable waters be issued according to EPA guidelines published at 40 C.F.R. Part 230. These EPA guidelines state:

Except as provided under section 404(b)(2), no discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences.

(1) For the purpose of this requirement, practicable alternatives include, but are not limited to:

(i) Activities which do not involve a discharge of dredged or fill material into the waters of the United States or ocean waters;

(ii) Discharges of dredged or fill material at other locations in waters of the United States or ocean waters:

40 C.F.R. § 230.10(a)(1).

An alternative is practicable if it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes. If it is otherwise a practicable alternative, an area not presently owned by the applicant which could reasonably be obtained, utilized, expanded or managed in order to fulfill the basic purpose of the proposed activity may be considered.

40 C.F.R. § 230.10(a)(2).

Plaintiffs challenge the section 404 permit on the ground that the Corps failed to make independent verification of MDOT's data concerning Mack Point as a practicable alternative port site. Plaintiffs rely on Van Abbema v. Fornell, 807 F.2d 633 (7th Cir.1986), which involved a challenge to a Corps permit for the construction of a coal transloading facility on the Mississippi River. The Seventh Circuit stated that, in conducting its public welfare review under 33 C.F.R. § 320.4(a) prior to issuance of a Corps permit,⁵ "[t]he Corps certainly may utilize reports and facts derived from outside reports and sources . . . but the Corps is responsible for the independent verification of specifically challenged information obtained from applicants or outside consultants." 807 F.2d at 639.

Specific challenges to a report used by the Corps in its public interest review require specific responses or a determination that the report is not being relied upon in its challenged aspects. . . . When the Corps receives particularized objections to material upon which it importantly relied in its review, the Corps must undertake some independent effort to verify or discredit the challenged material.

Id. at 640 (emphasis added). See also Friends of the Earth v. Hintz, 800 F.2d 822, 834 (9th Cir.1986); State v. Hudson, 665 F. Supp. 428, 442 (E.D.N.C.1987).

The information on which the Corps relied in concluding that Mack Point is not a practicable alternative was prepared by MDOT and its consultants, and was specifically challenged by EPA and its consultant, TBS. Booz-Allen, MDOT's consultant, based projected cargo volumes for the proposed terminal on the assumption that vessel service, port costs, and ocean costs would be equal to those at competing ports. See Booz-Allen & Hamilton, Study of the Market Potential and Direct Benefits of New Port Development at Searsport, at 4, Plaintiffs' Appendix, at 245 (April 1987) (Booz-Allen Study). "Potential cargo was defined as cargo that originates or is destined within the Searsport cost effective hinterland but is exported/imported via other U.S. and/or Canadian ports." Booz-Allen Study, at 6.

TBS raised specific challenges to Booz-Allen's assumptions. TBS concluded that "[b]ased on current and emerging economic and competitive trends within the New England region and the maritime industry it is unlikely [that the Booz-Allen assumptions] can be met in Searsport for containerized and breakbulk cargoes." TBS, A Review of Current and Future Dry Cargo Handling Capabilities at Mack Point, at 5, MDOT Appendix, at 423 (April 1987) (TBS Review). Although stated in general terms, this conclusion is followed by a more specific discussion of weaknesses perceived by TBS in Booz-Allen's assumptions. See TBS Review, at 5-7.

Under Van Abbema (the court is not aware of any First Circuit precedent), "[t]he Corps may rely on reports prepared by outsiders or applicants, but . . . [ ] when such information is specifically and credibly challenged as inaccurate, the Corps has an independent duty to investigate." Van Abbema, 807 F.2d at 642. After requesting further clarification from MDOT and Booz-Allen regarding their assumptions, the Corps responded to the TBS objections by referring to existing or new information provided by MDOT and Booz-Allen. See Corps Record of Decision, at 20-21. For example, with respect to the TBS objections to Booz-Allen's comparison of operational costs of Sears Island and Mack Point, the Corps relied on a Booz-Allen market feasibility study and transportation costs analysis; with respect to the TBS contention that bogies could reduce handling limitations between shipside and backland storage areas at Mack Point, the [19 ELR 20702] Corps referred to Booz-Allen's conclusion that the use of bogies would require additional space and would result in slower and more expensive operations; in refuting the TBS conclusion that operational limitations would not render Mack Point impracticable, the Corps referred exclusively to Booz-Allen's conclusions regarding operational limitations; and with respect to the TBS forecast of cargo volumes which would be handled in the foreseeable future, the Corps relied on Booz-Allen's contrary projections, on Booz-Allen's belief that their forecasts are conservative, and on additional studies conducted by the state.

Although the Corps may rely, even exclusively, on information provided by MDOT and its consultants, see Hintz, 800 F.2d at 834, the parties should invite the court's attention to evidence of Corps efforts to verify Booz-Allen's and MDOT's assumptions and conclusions relating to the practicability of the Mack Point alternative, and evidence that the Corps itself analyzed or verified MDOT's and its consultants' data.⁶

The Corps "may not reflexively rubber stamp" the information and conclusions of an applicant and its consultants. Save Our Wetlands v. Sands, 711 F.2d 634, 642 (5th Cir.1983). But the Corps may rely on, and even adopt, the work of a permit applicant as long as it independently reviews and verifies the work. Thus, where the Corps spends considerable time reviewing the applicant's submissions, considers additional data from other sources, applies its own knowledge and expertise, and conducts its own independent field studies, a finding that an independent review and verification was conducted is likely warranted. Id. at 643.

Although the Corps appears to have spent considerable time addressing the objections of EPA, FWS and NMFS, and responding to the TBS challenges to Booz-Allen's assumptions, the parties should point out what actions were undertaken by the Corps as the predicate for its "deferral" to the professional judgment and expertise of MDOT and its consultants.

The plaintiffs advance the related argument that the Corps should defer to EPA's conclusion that the Mack Point site is a practicable alternative. EPA's opposition to the Sears Island alternative is well-documented on the administrative record. See Plaintiff's Appendix, at 16-24, 32-42. EPA concluded that the Corps set out from the beginning to justify the Sears Island alternative, and to build a record against the practicability of the Mack Point alternative, by falsely inflating the proposed new port's growth potential,⁷ hence the need for an expandable facility.

The Corps public interest review regulations require that the Corps give full consideration to the views of the environmental agencies in deciding whether to issue a permit. 33 C.F.R. § 320.4(c). "Under these regulations the Corps is not bound to agree with the conclusions reached by these resource agencies, but simply required to listen to and consider their views in the decisionmaking process." Sierra Club v. United States Army Corps of Engineers, 772 F.2d 1043, 1054 (2d Cir.1985). Although the objections of EPA, FWS and NMFS to the project may have suggested a heightened duty on the part of the Corps to provide independent review and verification of the submissions of MDOT and its consultants, the Corps was well within its rights in rejecting demands to adopt the view of the EPA.

The plaintiffs argue also that the decision as to whether Mack Point is a practicable alternative should have been based on a consideration of the nonexpandable two-berth facility proposal for which the permit was granted, and not on a consideration of the six-berth facility envisioned at maximum build-out.

The Corps concedes that the aquatic resources adversely affected by development of the Sears Island terminal are more valuable than those at Mack Point. See Corps ROD, at 25. Thus, there is no dispute that EPA regulations require the Corps to deny the Sears Island permit if Mack Point is a practicable alternative. See 40 C.F.R. § 230.10(a)(1). The "practicability" determination, however, must be made in light of "cost, existing technology, and logistics in light of overall project purposes." 40 C.F.R. § 230.10(a)(1).

The Corps describes the project as "[c]onstruction of a dry cargo terminal . . . as part of a long range port development plan to meet the marine shipping needs of the State of Maine and the employment needs of the local area." Corps ROD, at 1. "The project purpose is to construct a modern port facility that is efficient and expandable to meet both current and future needs of the State." Id. at 17.

The parties should address whether under the CWA the "practicability" of an alternative is to be measured against these (or some other) general project goals, see Van Abbema, 807 F.2d at 638, or against the scope of the proposed project in its initial phase. Cf. Roosevelt Campobello International Park Commission v. USEPA, 684 F.2d 1041, 1046 (1st Cir.1982) (discussed infra with regard to consideration of "reasonable alternatives" under NEPA). Subsidiary issues which should be discussed include the extent to which it is the prerogative of the applicant to prescribe the type, dimensions and goals of the project to be evaluated under the CWA; whether, by proposing a two-berth facility, with the capacity for expansion to six berths, MDOT is entitled to have the Corps evaluate exactly that proposal under the CWA; or whether the Corps must evaluate the present and future economic assumptions, inter alia, upon which MDOT based its proposal, with a view to assessing their economic viability, thereby enabling the agency (and the reviewing court) to distinguish legitimate project typing and scoping from pretextual proposals designed to render otherwise "reasonable ("practicable") alternatives" unnecessary of consideration by the Corps under the CWA.

IV. NEPA CLAIMS

The National Environmental Policy Act (NEPA) is a basic national charter for protection of the environment, 40 C.F.R. § 1500.1 (1987), which mandates "a rather finely tuned and 'systematic' balancing" of environmental considerations. Calvert Cliffs' Coordinating Committee v. U.S. Atomic Energy Commission, 449 F.2d 1109, 1113 (D.C.Cir.1971). See also Silva v. Lynn, 482 F.2d 1282, 1284 (1st Cir.1973). The [19 ELR 20703] Environmental Impact Statement (the EIS) is at the heart of the NEPA process. An "action-forcing" device, the EIS is designed to serve at least three purposes:

First, it permits the court to ascertain whether the agency has made a good faith effort to take into account the values NEPA seeks to safeguard. To that end it must "explicate fully its course of inquiry, its analysis and its reasoning." Second, it serves as an environmental full disclosure law, providing information which Congress thought the public should have concerning the particular environmental costs involved in a project.

. . . .

[Therefore,] [i]t cannot be composed of statements "too vague, too general and too conclusory." . . . [Third,] and perhaps most substantively, the requirement of a detailed statement helps insure the integrity of the process of decision by precluding stubborn problems or serious criticism from being swept under the rug. A conclusory statement "unsupported by empirical or experimental data, scientific authorities, or explanatory information of any kind" not only fails to crystallize issues, but "affords no basis for a comparison of the problems involved with the proposed project and the difficulties involved in the alternatives." . . . Moreover, where comments from responsible experts or sister agencies disclose new or conflicting data or opinions that cause concern that the agency may not have fully evaluated the project and its alternatives, these comments may not simply be ignored. There must be good faith, reasoned analysis in response.

Silva, 482 F.2d at 1284 (citations omitted). See Conservation Law Foundation v. General Services Administration, 707 F.2d 626, 632 (1st Cir.1983).

Judicial assessment of NEPA compliance implicates both the substantive and the procedural aspects of the administrative action. Grazing Fields Farm v. Goldschmidt, 626 F.2d 1068, 1072 (1st Cir.1980). An administrative decision "may be set aside 'only for substantial procedural or substantive reasons mandated by statute.'" Baltimore Gas and Electric Co. v. National Resource Defense Council, 462 U.S. 87, 97 (1983) (quoting Vermont Yankee Nuclear Power Corp. v. N.R.D.C., 435 U.S. 519, 558 (1978)).

Substantively, the reviewing court must determine whether the agency action was "arbitrary, capricious [or] an abuse of discretion" under the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A). Sierra Club v. Marsh, 769 F.2d 868, 871 (1st Cir.1985) (Sierra Club I). See also Baltimore Gas & Electric, 462 U.S. at 98. Judicial review is to be narrow in scope. The court is to determine whether the agency gave "good faith" consideration to the environmental consequences of the proposed action, but may not pass judgment on the balance struck by the agency. Grazing Fields Farm, 626 F.2d at 1072; Roosevelt Campobello Int'l Park v. United States Environmental Protection Agency, 684 F.2d 1041, 1045 (1st Cir.1982).

The court must also evaluate the level of administrative compliance with the NEPA procedures. Because Congress has prescribed the procedures to be followed for the vindication of NEPA's substantive goals, the requirement of a properly detailed EIS is in no sense a pointless technicality, even where the agency in fact has considered the environmental factors in good faith. Grazing Fields Farm, at 1072-73. In the First Circuit, it is clear that only serious procedural violations warrant setting aside an EIS. Concerned Citizens on I-190 v. Secretary of Transportation, 641 F.2d 1, 3 (1st Cir.1980); Essex County Preservation Ass'n v. Campbell, 536 F.2d 956, 962-63 (1st Cir.1976).⁸

Plaintiffs contend that the EIS process for the Sears Island project has been disrupted. They allege that the defendants violated NEPA's substantive goals by producing a FEIS which merely rationalized a decision made long ago, rather than one based on a "good faith consideration" of the environmental consequences. The defendants prepared a detailed 500-plus page EIS, well over the normal 300 pages suggested by the CEQ for complex EIS's. 40 C.F.R. § 1502.7 (1987). Many environmental studies were commissioned, including 16 in response to comments on the DEIS. FEIS, Vol. I, at ix-xi, 12-1 to 12-7 (general discussion of literature considered). Plaintiffs nonetheless argue that the defendants failed to follow some of the NEPA regulations governing the content and preparation of an EIS,⁹ and that the failure to do so, combined with the "track record of the defendants in dealing with the Sears Island project," demonstrates that the defendants violated their duty of good faith.

A. Use of Contractors

Plaintiffs assert that preparation of the EIS did not meet the standards necessary to protect the "objectivity and integrity of the NEPA process," Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations, 46 Fed.Reg. 18026, 18031 (1981) (CEQ Forty Questions);¹⁰ specifically, plaintiffs challenge the involvement of Normandeau Associates, TYLIN/HBA, Olko Engineering and BAH.

Plaintiffs allege in their amended complaint three violations involving the alleged use of interested contractors in the preparation of the EIS. Plaintiffs argue that the FHWA did not select the contractors involved, that some of those involved in preparation of the EIS were not included in the list of preparers, and that no conflict-of-interest statements were obtained from the preparers, all in violation of 40 C.F.R. §§ 1506.5(c) and 1502.17.

The regulations clearly contemplate that the lead agency be involved in the process of choosing a contractor who prepares the EIS:

It is the intent of these regulations that the contractor be chosen solely by the lead agency, or by the lead agency in cooperation with cooperating agencies, or where appropriate by a cooperating agency to avoid any conflict of interest.

40 C.F.R. § 1506.5(c) (1987). The lead [19 ELR 20704] agency "must select the consulting firm, even though the applicant pays for the cost of preparing the EIS." CEQ Forty Questions, 46 Fed.Reg. at 18033. The NEPA conflict-of-interest regulation requires that the EIS include a list of preparers, 40 C.F. R. § 1502.17 (1987), and the NEPA regulations require that those "preparing significant background papers" be included in the EIS list of preparers, 40 C.F.R. § 1502.17 (1987).

The list of preparers names only Normandeau Associates, Economic Research Associates (ERA), MDOT and FHWA. As defendants correctly note, however, the FHWA "approved" MDOT's contracts with Normandeau Associates and ERA, but did not approve MDOT's contracts with TYLIN/HBA, BAH, or Olko Engineering. Nor are the latter three consultants included in the list of preparers. The defendants contend that NEPA regulations do not require that these three consultants be listed because they did not prepare the EIS, but merely provided information to the EIS preparers. TYLIN/HBA, BAH And Olko Engineering all provided background reports for the EIS.¹¹ The parties have not discussed the procedural or environmental significance of the alleged failure to list these consultants as preparers, nor the importance of their input in the EIS process. Although further treatment of these matters may be warranted, for present purposes it appears highly unlikely that extraordinary equitable relief can be predicated on a failure to list these consultants as preparers, absent some showing of consequence to the integrity of the process or the environment. See Amoco, 480 U.S. 531, 107 S. Ct. 1396, 94 L. Ed. 2d 542 (1987).

The regulation governing the use of outside contractors requires also that the agency obtain disclosure statements from the preparers "specifying that they have no financial or outside interest in the project." 40 C.F.R. § 1506.5(c) (1987). The CEQ interprets the terms "financial or other interest . . . broadly to cover any known benefits other than general enhancement of professional reputation." CEQ Forty Questions, 46 Fed.Reg. at 18031. The CEQ states that firms with interest in the outcome of the project should be disqualified from participation in the EIS, while a disclosure statement in the DEIS "should clearly state the scope and extent of a firm's prior involvement" if the consulting firm was "involved in developing initial data and plans." Id.

The defendants argue that the failure to obtain conflict-of-interest statements was at most a "technical" violation of NEPA, with no resulting harm because neither Normandeau Associates nor ERA had an actual conflict of interest.¹² The defendants cite to affidavits executed by Dr. William Berry of Normandeau Associates and Frank Mahady of ERA. Other evidence in the record appears to contradict Dr. Berry's denial of a conflict of interest.¹³ The exact nature and significance of any such conflicts of interest should be addressed by the parties.

B. FHWA Verification

Plaintiffs challenge the adequacy of the guidance given MDOT in the preparation of the EIS. Plaintiffs argue that a particularly close evaluation of the EIS was called for because the firms involved in the evaluation of the Mack Point site may have had a conflict of interest. In Essex County, the First Circuit stated that "considerable caution should be exercised" when possibly-interested parties are involved in EIS preparation. Essex County, 536 F.2d at 960. See also Sierra Club v. Sigler, 695 F.2d 957, 963 (5th Cir.1983) (use of EIS preparers involved in the design of the favored alternative described as "troubling"; the court should carefully review to be sure the agency did not "rubber stamp" the EIS.)

NEPA provides that a federal agency may delegate preparation of an EIS to a state agency only if:

(i) the State agency or official has statewide jurisdiction and has the responsibility for such action,

(ii) the responsible Federal official furnishes guidance and participates in such preparation,

(iii) the responsible Federal official independently evaluates such statement prior to its approval and adoption, and

(vi) after January 1, 1976, the responsible Federal official provides early notification to, and solicits the views of, any other State or any Federal land management entity of any action or any alternative thereto which may have significant impacts upon such State or affected Federal land management entity and, if there is any disagreement on such impacts, prepares a written, assessment of such impacts and views for incorporation into such detailed statement.

42 U.S.C. § 4332(2)(D) (1982). The regulations go on to say that "[i]t is the intent of this paragraph that acceptable work not be redone, but that it be verified by the agency." 40 C.F.R. § 1506.5(a) (1987) (emphasis added).

The defendants argue that the level of FHWA review at least matched that considered adequate by the First Circuit in Essex County. However, Essex County, as well as the other cases relied on by the defendants,¹⁴ either were decided prior to the promulgation of the regulation requiring verification, or relied on preregulation cases without considering the effect of the new requirement.

Four federal courts, the Second, Fifth and Ninth Circuits, and the U.S. District Court for the District of Columbia, have addressed what agency action is required to verify outside work. See Friends of the Earth v. Hintz, 800 F.2d 822 (9th Cir.1986) (construing the Corps regulation requiring verification); Save Our Wetlands v. Sands, 711 F.2d 634 (5th Cir.1983) (same); Sierra Club v. United States, 701 F.2d 1011 (2d Cir.1983) (same); Foundation on Economic Trends v. Lyng, 660 F. Supp. 10 (D.D.C.1988) (construing NEPA verification requirements).

In Hintz, the Corps "requested reports and supplemental reports from [the applicant], consulted various federal and state resource agencies [and] requested additional supplemental reports." The Hintz court [19 ELR 20705] held that the Corps, which "is not a business consulting firm," is not required to conduct its own study of alternatives, but is required to study the information provided by the applicant, and to seek "the expert views of resource agencies involved," Hintz, 800 F.2d at 835-36.

In Sands, Corps personnel reviewed the information submitted by the applicant, studied data from the area, and sought staff biologist review. The Corps conducted its own investigation concerning the effects of electrical transmission lines on wildlife and studied the effects of the project on Southern bald eagles. Corps personnel also flew over the area. The court held that "the evidence that the Corps reviewed, verified, and supplemented the consultant's reports is sufficient to fulfill the Corps' obligations under federal regulations." Sands, 711 F.2d at 643.

In Lyng, the U.S. District Court for the District of Columbia found that the agency met its duty of independent verification by "conduct[ing] independent statistical analysis of raw data, specify[ing] testing protocol, and submit[ting] certain materials to the National Veterinary Services Laboratory for confirmation." Lyng, 680 F. Supp. at 15 n. 4.

The record indicates that FHWA personnel participated in the preparation of the EIS. Defendant Richardson met with representatives of MDOT, the Coast Guard, and the Corps to "discuss EIS preparation and permitting procedures." MDOT Appendix, at 15. The FHWA approved the use of ERA and Normandeau Associates, the only consultants regarded as "preparers." FHWA representatives participated in the "scoping" procedure. Federal Defendants' Appendix, at 3-21. FHWA representatives met with MDOT and Corps personnel to discuss the draft outline. Federal Defendant's Appendix, at 25. FHWA representatives met also with MDOT personnel throughout the process, to monitor the progress of the EIS and to provide input. Id. at 30-33, 35-39, 55-57. Defendant Richardson (FHWA Division Administrator) toured Mack Point with MDOT and federal officials as part of their consideration of Mack Point as an alternative site. MDOT Appendix, at 89-92. FHWA "specialists" reviewed both the DEIS and the FEIS to insure compliance with the applicable laws. See, e.g., Federal Defendants' Appendix, at 33, 57. Defendant Richardson circulated the FEIS, with detailed responses to comments received on the DEIS.

The parties should address the respects in which the FHWA failed (or not) in its duty of independent verification of the EIS in the circumstances of this case.

C. Secondary Impacts

Plaintiffs challenge the adequacy of the FEIS discussion of the secondary impacts of the Sears Island project. Concerns over the secondary impacts of the project are not new to this litigation. In Sierra Club I, the First Circuit required that an EIS be prepared because the Corps EA "fail[ed] to consider adequately the fact that building a port and causeway may lead to further industrial development of Sears Island and that further development will significantly affect the environment." 769 F.2d at 877. The Corps concluded that, "because the secondary development being considered is 'light dry industrial[,] there should be no significant air or water quality impacts from this type of industrial operation.'" Sierra Club I, 746 F.2d at 881. But the First Circuit found that this conclusion was not "supported or explained, nor [did] the record indicate why this [was] so." Id. at 881.

The present FEIS devotes 47 pages to a discussion of the proposed industrial park as a secondary project impact. FEIS, Vol. I, at 4-108 to 4-154. The secondary impact analysis is based on assumptions about the scale of the development, the phasing of the development, the commuting distance of the industrial employees, and the types of industry expected to locate in the industrial part. The four industry types assertedly targeted for the proposed industrial park adjacent to the port terminal are: fabricated metal products; non-electrical machinery and equipment; electrical and electronic machinery and equipment; and transportation equipment. FEIS, Vol. I, at 4-109, 4-130. The FEIS environmental analysis is predicated on the assumption that "these industries would not be expected to have large steam demands; combustion of fuels would be primarily for space heating, and that the "industries targeted would . . . [not] have major water use and discharge requirements." FEIS, Vol. I, at 4-117, 4-120.

Plaintiffs find two faults with the FEIS secondary impact analysis. First, they argue that the FEIS does not include sufficient documentation of the assumption that only the four targeted "light" industries will locate at the industrial park. The assumption regarding these four types of target industry is predicated on the 1983 Municipal Response Plan For the Industrial Development of Sears Island (Mallar Report), prepared by Mallar Development Services for the Town of Searsport. The parties should discuss in detail the adequacy of the bases for all of the assumptions underlying the secondary impact analysis in the EIS.

Plaintiffsargue also that the EIS neglects to discuss the possible impacts of "heavy industry," which plaintiffs suggest is a reasonably foreseeable development.¹⁵ Plaintiffs point to earlier proposals for developing Sears Island, and to existing development plans for the Searsport area, as evidence of the foreseeability of "heavy industry" development. Plaintiffs point to the following FEIS information as evidence that heavy industry is likely to be located in the Sears Island industrial park: (1) Table A-2 states that Searsport is "one of two areas recommended for 'cluster development' of heavy industry;" (2) page 2-3 states that the Advisory Committee on Coastal Development and Conservation has "recommended that heavy industry be located either in the Portland-South Portland area or the Searsport-Stockton Springs-Penobscot area (emphasis added);" and (3) a September 2, 1986 letter from the State Development Office commenting on the number of surveys which have been conducted on the land use plans and secondary impacts of the Sears Island project and noting that "the park is intended for heavy industry." FEIS, Vol. II, at S-2.

Other portions of the record mention existing studies, or earlier plans for the development of Sears Island, which discuss location of heavy industry in the area. The FEIS notes that previous development proposals include a nuclear or coal-fired power plant or an aluminum smelter.¹⁶ FEIS, Vol. I, at 4-109; Sierra Club I, 769 F.2d at 872. The FEIS discusses the Coastal Conservation and Development Committee recommendations for cargo port development and heavy industry location. FEIS, Vol. I, at A-5. These recommendations are considered "essentially a preliminary master plan for the coastal zone of Maine." Id. One MDOT criterion for determining the preferred location of the cargo terminal was compatibility with the Coastal Committee recommendation.

NEPA regulations require that the EIS identify all indirect impacts known or "reasonably foreseeable". 40 C.F.R. § 1508.8(b) (1987). Although "the agency is not required to engage in speculation," appropriate inquiry and investigations may include "likely purchasers [of land] and development [19 ELR 20706] trends in the area or similar areas in recent years." Sierra Club I, 769 F.2d at 879 (quoting CEQ Forty Questions, 46 Fed.Reg. at 18031). From the FEIS it appears that the MDOT and FHWA were aware of existing studies and previous plans for Sears Island and the Searsport area which at least considered heavy industrial development for the area.

The parties should discuss in detail whether or not the agency decision to evaluate the environmental impact of only the four target industries in the Sears Island Industrial park was "arbitrary or capricious."

D. Reasonable Alternatives

Plaintiffs argue also that the FEIS fails to discuss all reasonable alternatives. Plaintiffs point in particular to an alleged need to consider methods for stimulating the economy of Waldo County, other than by means of a dry cargo terminal, and an alleged need to consider the construction of a nonexpandable two-berth facility.¹⁷

Under NEPA, federal agencies are required to "study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative use of available resources," 42 U.S.C. § 4332(2)(E) (1982), even if an EIS is not required. If an EIS is required, the agency must prepare a detailed statement considering the environmental consequences of the proposed action. 42 U.S.C. § 4332(2)(C) (1982). Alternatives to the proposed action must be included in the EIS. 42 U.S.C. § 4332(2)(C)(iii) (1982). Consideration of alternatives is "the heart of the environmental impact statement."¹⁸ 40 C.F.R. § 1502.4 (1987).

The NEPA regulations provide the following guidance with respect to the EIS discussion of reasonable alternatives:

Based on the information and analysis presented in the sections on the Affected Environment (§ 1502.15) and the Environmental Consequences (§ 1502.16), [the EIS] should present the environmental impacts of the proposal and the alternatives in comparative form, thus sharply defining the issues and providing a clear basis for choice among options by the decisionmaker and the public. In this section agencies shall:

(a) Rigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated.

(b) Devote substantial treatment to each alternative considered in detail including the proposed action so that reviewers may evaluate their comparative merits.

(d) Include the alternative of no action.

(e) Identify the agency's preferred alternative or alternatives, if one or more exists, in the draft statement and identify such alternative in the final statement unless another law prohibits the expression of such a preference.

(f) Include appropriate mitigation measures not already included in the proposed action or alternatives.

40 C.F.R. § 1502.14 (1987). In addition, the agency is to adopt procedures for

requiring that the alternatives considered by the decisionmaker are encompassed by the range of alternatives discussed in the relevant environmental documents and that the decisionmaker consider the alternatives described in the environmental impact statement. If another decision document accompanies the relevant environmental documents to the decisionmaker, agencies are encouraged to make available to the public before the decision is made any part of that document that relates to the comparison of alternatives.

40 C.F.R. § 1505.1 (1987).

The Supreme Court has spoken in broad terms about the need to discuss alternatives in the EIS.

As should be obvious even upon a moment's reflection, the term "alternatives" is not self-defining. To make an impact statement something more than an exercise in frivolous boilerplate the concept of alternatives must be bounded by some notion of feasibility. As the Court of Appeals for the District of Columbia Circuit has itself recognized:

"There is reason for concluding that NEPA was not meant to require detailed discussion of the environmental effects of 'alternatives' put forward in comments when these effects cannot be readily ascertained and the alternatives are deemed only remote and speculative possibilities, in view of basic changes required in statutes and policies of other agencies — making them available, if at all, only after protracted debate and litigation not meaningfully compatible with the time-frame of the needs to which the underlying proposal is addressed." Natural Resources Defense Council v. Morton, 148 U.S. App. D.C. 5, 15-16, 458 F.2d 827, 837-838 (1972).

See also Life of the Land v. Brinegar, 485 F.2d 460 (CA9 1973), cert. denied, 416 U.S. 961 (1974). Common sense also teaches us that the "detailed statement of alternatives" cannot be found wanting simply because the agency failed to include every alternative device and thought conceivable by the mind of man. Time and resources are simply too limited to hold that an impact statement fails because the agency failed to ferret out every possible alternative, regardless of how uncommon or unknown that alternative may have been at the time the project was approved.

Vermont Yankee, 435 U.S. at 551.

In the First Circuit there are three requirements to "preserve an alternatives issue for review." Roosevelt Campobello, 684 F.2d at 1047. First, the alternative must either appear reasonable and appropriate at the time the EIS was drafted or have been suggested during the comment period. Id. Second, the intervenor must make more than a "facially plausible suggestion, rather [he] must offer tangible evidence that an alternative [] might offer a 'substantial measure of superiority'" to the preferred alternative. Id. at 1047 (quoting Seacoast Anti-Pollution League v. NRC, 598 F.2d 1221, 1228 (1st Cir. 1979)). Third, the suggested alternative must be reasonable, given the primary objectives of the project applicant. Roosevelt Campobello, 684 F.2d at 1047.

The CEQ narrowly construes the primary objectives of a project applicant. Reasonable alternatives are those "that are practical or feasible from the technical and economic standpoint and using common sense [19 ELR 20707] rather than simply desirable from the standpoint of the applicant."¹⁹ CEQ Forty Questions, Fed.Reg. at 18026 (emphasis added). In the First Circuit economic concerns are recognized as important in defining the primary objectives of the applicant. Roosevelt Campobello, 684 F.2d at 1047; Silva, 482 F.2d at 1287.

In Roosevelt Campobello, the First Circuit viewed the primary objectives of the proposed oil refinery project as "a port with deep water near shore in order to accommodate [oil supertankers]." 684 F.2d at 1047. The refinery would not have been economically feasible if it could not take advantage of the economies of scale available with supertankers. Therefore, limiting the alternatives discussed to those areas with deep water access met the duty to consider all alternatives "reasonable and appropriate." Id.

In Silva, 482 F.2d at 1287, the First Circuit discussed the economic feasibility of a suggested alternative and the balancing of the project needs vis-a-vis the environmental consequences. There the court stated that

It is not too much to require an explanation why a lesser aggregation of housing units on the property would be either economically unsound or, as a policy matter, would represent less of a benefit in terms of low and middle cost housing needs than would be justified by the costs associated with the disadvantages to the environment.²⁰

(Emphasis added.)

Plaintiffs argue that the FEIS should have evaluated the alternative of constructing a nonexpandable two-berth facility.²¹ The comment was clearly presented in a timely fashion. FEIS, Vol. II at P-14; Letter from Elizabeth Higgens of the EPA, Plaintiffs' Appendix, at 205. The defendants argue that the proposal of a two-berth facility as a "reasonable alternative" distorts the scope of the project proposed by the applicant. The Corps considers the project applied for as "an initial 2 berth facility (Phases 1 and 2) with expansion potential to a six berth future facility (Phases 3 and 4)." Corps ROD, Federal Defendants' Appendix, at 202 (emphasis added). The EIS describes the project as having two goals:

The proposed general cargo terminal at Sears Island comprises one component of the State of Maine's larger strategy to improve the efficiency of its transportation system through selected infrastructure and other investments, consistent with the State's goals of preserving and enhancing its invaluable environmental resources. This strategy is intended to ensure the long term viability and expansion of the State's economy, especially in specific regions where chronic unemployment and underemployment warrant public action to help mitigate social disadvantages.

FEIS, Vol. I, at 1-1. The defendants maintain that an important objective of the project is construction of a facility expandable so as to accommodate the projected growth of marine traffic at the terminal. They do not consider a two-berth facility capable of meeting this goal.

Plaintiffs argue that the two-berth alternative is reasonable because sufficient information exists to indicate that a six-berth facility may not be necessary or even economically feasible. Plaintiffs point to the TBS cargo projections, which conclude that the BAH cargo estimates are flawed in that they rely on unsupportable assumptions. Even if the BAH cargo estimates are accurate, plaintiffs submit that a two-berth facility could handle high cargo estimates through the year 2010. Plaintiffs also characterize the chances of the cargo facility ever achieving full buildout as "totally speculative," noting that funding for the third berth and beyond has yet to be approved.

The role of the court is not to determine which expert to believe, TBS or BAH, but rather to determine whether the decision to discuss only the two-berth expandable facility was too unreasonable to permit it to stand. A port project, like a highway, airport, or other infrastructure improvement, is designed to meet the needs of the state well into the future. In this situation the capacity to expand may be analogous to the need for deep water in Roosevelt Campobello. The parties should address whether, under NEPA, the reasonableness of any alternative is to be measured against general project goals similar to those enunciated in the FEIS, cf. Van Abbema, 807 F.2d at 638, or against the scope of the proposed project in its initial phase. Subsidiary issues which should be discussed include the extent to which it is the prerogative of the applicant to prescribe the type, dimensions and goals of the project under NEPA; whether by proposing a two-berth facility, with the capacity for expansion to six berths, MDOT is entitled to have exactly that proposal evaluated under NEPA; or whether the present and future economic assumptions upon which MDOT based its proposal must be evaluated with a view to assessing their economic viability, thereby enabling the reviewing agency (and court) to distinguish legitimate project typing and scoping from pretextual proposals designed to render otherwise "reasonable alternatives" unnecessary of evaluation in the EIS.

1. § 401. Construction of bridges, causeways, dams or dikes generally; exemptions

It shall not be lawful to construct or commence the construction of any bridge, causeway, dam, or dike over or in any port, roadstead, haven, harbor, canal, navigable river, or other navigable water of the United States until the consent of Congress to the building of such structures shall have been obtained and until the plans for (1) the bridge or causeway shall have been submitted to and approved by the Secretary of Transportation, or (2) the dam or dike shall have been submitted to and approved by the Chief of Engineers and Secretary of the Army. However, such structures may be built under authority of the legislature of a State across rivers and other waterways the navigable portions of which lie wholly within the limits of a single State, provided the location and plans thereof are submitted to and approved by the Secretary of Transportation or by the Chief of Engineers and Secretary of the Army before construction is commenced. When plans for any bridge or other structure have been approved by the Secretary of Transportation or by the Chief of Engineers and Secretary of the Army, it shall not be lawful to deviate from such plans either before or after completion of the structure unless modification of said plans has previously been submitted to and received the approval of the Secretary of Transportation or the Chief of Engineers and the Secretary of the Army. The approval required by this section of the location and plans or any modification of plans of any bridge or causeway does not apply to any bridge or causeway over waters that are not subject to the ebb and flow of the tide and that are not used and are not susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce.

33 U.S.C.A. § 401 (1983).

2. See note 1 supra.

3. Plaintiffs cite to The Passaic Bridges, 70 U.S. 782 (1861), in which the Court, in finding that the Passaic River lies wholly within New Jersey, noted that the Passaic "is no highway to other States; no commerce passes thereon from States below the bridge to States above." 70 U.S. at 792. This language appears to evidence a focus primarily upon rivers running between states, rather than upon the coastal waterways of a single state. On the other hand, plaintiffs point out that it may be more reasonable to read the phrase: "rivers and other waterways the navigable portions of which lie wholly within the limits of a state", as not including the navigable waters of Penobscot Bay leading to coastal and international waters through which interstate commerce flows.

4. Nor are plaintiffs likely to be able to show irreparable injury resulting from a violation of RHA § 9, inasmuch as this court is expressly empowered to order removal of the causeway under section 12. 33 U.S.C.A. § 406. Cf. United States v. Cumberland Farms of Connecticut, Inc., 826 F.2d 1151 (1st Cir.1987) (upholding district court restorative order for violation of Clean Water Act).

5. The Corps considers the practicability of alternatives to dredging and filling activities as part of the public interest review mandated by 33 C.F.R. § 320.4(a). "For activities involving 404 discharges, a permit will be denied if the discharge that would be authorized by such permit would not comply with the [EPA's] 404(b)(1) guidelines." 33 C.F.R. § 320.4(a)(1). Review of project alternatives during the public interest review is further required under 33 C.F.R. § 320.4(a)(2)(i).

6. There is evidence that the Corps "deferred" to the professional judgment and expertise of MDOT's consultants. For example, the Corps ROD states: "In order to address the practicability of the Mack Point alternative, the Corps of Engineers requested a clarification of existing technical information contained in the record from the applicant. This information was prepared by the applicant's engineering consultants who have years of experience in the area of port engineering and who are recognized experts in this field." Corps ROD, at 19. And the ROD later states: "The Corps of Engineers accepts the professional judgment of the State, FHWA and their consultants concerning the engineering and operational requirements of this project." Corps ROD, at 22. An internal Corps memorandum to defendant Rhen states:

The main issues revolve around differences of opinion between EPA's consultant and the State and their consultants. EPA refuses to recognize or accept the applicant's professional judgments. EPA's consultant questions the applicant's assumptions, operational requirements, and professional judgments about other non-practicable alternatives. We acknowledge these professional differences of opinion, have address (sic) the Agencies' comments in the ROD, and defer to the expertise of the State Director of Ports and his consultants.

Memorandum from C. Godfrey to Col. Rhen (Feb. 17, 1988).

7. The EPA did not employ its most formidable weapon: its veto power over the project under 33 U.S.C. § 1344(c), which allows the EPA Administrator "to prohibit the specification of any area as a disposal site . . . whenever he determines that the discharge . . . into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas . . ., wildlife, or recreational areas." 33 U.S.C. § 1344(c); see also Bersani v. Robichaud, 850 F.2d 36, 40 (2d Cir.1988). The EPA rarely uses its veto power under § 1344(c). Although the Corps processes approximately 11,000 permit applications annually, EPA has vetoed only five Corps permits. Bersani, 850 F.2d at 40.

8. In Conservation Law Foundation, 707 F.2d at 632, the First Circuit evaluated NEPA procedural compliance under a "rule of reason" standard. How, if at all, this standard varies in application from the "arbitrary and capricious" standard is not clear.

9. Plaintiffs' contentions in these regards fall into four categories: (1) that the defendants failed to follow the proper procedures for employing contractors to prepare the EIS; (2) that the FHWA was insufficiently involved in the EIS process; (3) that the EIS inadequately discusses the secondary impacts of the project; and (4) that the EIS fails to discuss all reasonable alternatives.

In their supporting memorandum, however, plaintiffs did not pursue their contentions that the FHWA failed to respond adequately to comments on the DEIS, failed to prepare a Supplemental EIS addressing significant new information on the acreage requirements of a six-berth facility, and improperly incorporated key documents by reference. The plaintiffs failed also to focus on the allegations in the amended complaint that the Corps violated NEPA and its regulations, as well as the CWA, in accepting the FEIS and failing to require a supplemental EIS.

10. There is some apparent disagreement as to the deference to be accorded the CEQ Forty Questions. For instance, in Cabinet Mountains Wilderness v. Peterson, 685 F.2d 678, 682 (D.C. Cir.1982), the court considered that portion of the CEQ Forty Questions relating to mitigation measures. The court held that "the 'Forty Questions' publication . . . is merely an informal statement not a regulation and we do not find it to be persuasive authority." In Sierra Club I, the First Circuit cited to various sections of the CEQ Forty Questions in interpreting NEPA and its regulations. See Sierra Club I, 769 F.2d at 870, 874, 877, 879 (including a citation to the section disapproved in Cabinet Mountains Wilderness). Although the D.C.Circuit distinguished Andrus v. Sierra Club, 442 U.S. 347, 358 (1979), on the ground that it involved regulations which were subject to the notice and comment procedures, the Supreme Court noted that the CEQ was "created by NEPA and charged in that statute with the responsibility to 'review and appraise the various programs and activities of the Federal Government in light of the policies set forth . . . in [the] Act," id. at 358. The Court found therefore that the "CEQ's interpretation of NEPA is entitled to substantial deference." Id.

11. HBA prepared at least four reports, including a comparative analysis of the designs of dry-cargo terminals at Mac Point and Sears Island, and BAH prepared five reports, including a study of the effect the "no action" alternative would have on cargo volumes at Searsport and the state in general. EIS, Vol. I, at 12-6, 12-2, and x. TYLIN/HBA also organized the strategy for responding to comments to the DEIS. Although discounted by the MDOT because no actual writing or editing was involved, TYLIN/HBA was responsible for coordinating the response to the DEIS comments, including identifying the important issues and assigning the follow-up research. Olko Engineering's level of participation is somewhat less clear. But they served, at a minimum, on the EIS review team and were involved in answering the questions of the Corps.

12. Defendants argue also that this regulation only applies to those highly unique situations in which a contractor independently prepares an EIS for the state which the state in turn adopts as its own. The MDOT cites the FHWA Director of Environmental Policy for authority on this point, but provides no other authority for so narrowly construing this section. Plaintiffs argue that such a unique situation may never exist, because NEPA, when delegating the responsibility for preparation of the EIS to a preparer outside the agency, requires the delegating agency to guide the outside preparer and to participate in the EIS process.

13. The record indicates that on July 15, 1983, a document titled "Sears Island Maine Dry Cargo Searsport, Maine, Vol. I Preliminary Design Report" was prepared for MDOT by Hunter-Ballew Associates "in association with" Olko Engineering and Normandeau Associates. (Plaintiffs' Appendix, at 192). The plaintiffs also cite to the November 1983 environmental assessment (EA) summary prepared by these consultants, which identified Sears Island as the preferred alternative. Plaintiffs' Supplemental Appendix, at 9.

14. Conservation Society v. Secretary of Transportation, 531 F.2d 637, 639 (2d Cir.1976); Lange v. Brinegar, 625 F.2d 812, 818-19 (9th Cir.1980) (analyzing a 1972 EIS with a 1975 supplement); Friends of Endangered Species v. Jantzen, 596 F. Supp. 518, 526-27 (N.D.Cal.1984) (relying on pre-1979 cases without considering new regulation).

15. Plaintiffs challenge only the types of industries evaluated in the EIS. They do not appear to argue that the EIS inadequately evaluates the impacts of the industries actually discussed.

16. The FEIS excludes these industries from its analysis of the environmental impacts of secondary development for the following reasons: (1) the proposals relate to past plans and are unrelated to the present project; (2) the "scale of these sorts of investments would dwarf the cost of the preferred alternative and therefore proceed independently;" and (3) the present action would not "preclude separate environmental review should such large scale projects become feasible sometime in the future." FEIS, Vol. I, at 4-109 to 4-110.

17. Plaintiffs suggest that the FEIS should discuss industrial parks, governmental subsidies, and inland development projects as alternatives to the port project. FEIS, Vol. II, at F-5; Plaintiffs' Appendix, at 223-24. According to the FEIS, the Sears Island project has two goals: (1) to improve the efficiency of Maine's transportation system by creating a modern port facility and (2) to create jobs in an economically depressed area. Plaintiffs have not suggested even a facially plausible alternative for improving the economy of Waldo County that would meet both of the goals of the project planners.

18. Consideration of alternatives under NEPA is different than under the CWA. Under the CWA, consideration of "practicable alternatives" is mandated by EPA wetlands regulations promulgated pursuant to the Act. 40 C.F.R. § 230.10(a) (1987). The criteria for determining whether an alternative is practicable under the EPA wetlands regulations are similar to the factors for determining whether an alternative is reasonable under NEPA; consideration of cost, existing technology, and logistics in light of overall project purposes would seem to be required under both. Compare 40 C.F.R. § 230(a)(2) (1987) with CEQ Forty Questions, Fed.Reg. at 18026, and Roosevelt Campobello, 684 F.2d at 1047. The effect of the determination, however, is different under the two acts. Under NEPA, a determination that an alternative is reasonable requires that the agency examine fully the environmental impacts of that alternative in the EIS, even though the alternative may ultimately be rejected. Under the EPA wetlands regulations, a determination that an alternative is practicable requires the agency to select that alternative over any other, including a preferred alternative, which would have greater adverse impact on the aquatic ecosystem, so long as the "practicable alternative" does not have other significant adverse environmental consequences. For more detailed evaluation of the CWA, see Part III supra.

19. The Fifth Circuit defines reasonable alternatives as follows:

At the outset we note that the evaluation of "alternatives" mandated by NEPA is to be an evaluation of alternative means to accomplish the general goal of an action; it is not an evaluation of the alternative means by which a particular applicant can reach his goals. In the current proposal the general goal is to deliver coal from mine to utility.

Louisiana Wildlife Federation v. York, 761 F.2d 1044, 1048 (5th Cir.1985).

20. The CEQ Forty Questions supports the Silva holding. Where a comment to the DEIS raises "an alternative which is a minor variation of one of the alternatives discussed in the draft EIS but not given any consideration by the agency," the agency "should develop and evaluate the new alternative, if it is reasonable, in the final EIS." CEQ Forty Questions, 46 Fed.Reg. 18035 (emphasis added). However, the agency would not be required to circulate a supplemental DEIS for an alternative qualitatively within the spectrum of alternatives already discussed. One of the examples was a DEIS for an urban housing project, which discussed alternatives of constructing 2,000, 4,000 or 6,000 units, where a commentator suggested consideration of 5,000 units in a different configuration.

21. There is disagreement as to whether the two-berth alternative is discussed in the FEIS. Plaintiffs note that one reason for rejecting Mack Point as an alternative site was that Mack Point was a less suitable location for a six-berth facility. The FEIS section on "comparison of alternatives is limited to the impacts associated with the full build out of Mack Point, Sears Island and Long Cove." FEIS, Vol. I, at 2-7. The section evaluating the environmental consequences of the different sites states, "[in] all cases impacts relate to the full development of the terminal unless specifically stated otherwise." FEIS, Vol. I, at 4-1. The state defendants argue that a two-berth facility was considered, but that the consideration focused on a two-berth facility with certain characteristics, most notably its expandability to six berths. MDOT noted that although the CEQ regulations provide "that 'connected' and/or 'cumulative' actions should be considered in one impact statement" they considered it "unclear whether the agencies would have been required to consider the environmental impact of the full, six-berth project." Therefore, MDOT argues that the discussion of the environmental effects of the full build-out exceeded NEPA requirements. The federal defendants did not address this point, focusing instead on the unreasonableness of the plaintiffs' proposed alternative. The federal defendants argue that the two-berth proposal was not reasonable "in light of the purpose described by the applicant."