Environmental Defense Fund, Inc. v. Corps of Engineers of the United States Army

No. LR-70-C-203 (E.D. Ark. May 5, 1972)

An injunction restraining construction of an earth embankment dam across the Cossatot River in Arkansas is dissolved upon the filing of an environmental impact statement by the Corps of Engineers. The injunction is based on five separate memorandum opinions reported together at 1 ELR 20130. Although the court finds that the impact statement misstates the facts in regard to resulting canoeing and floating conditions, and in regard to a request by the State of Arkansas for designation of the Cossatot as a "scenic river", the impact statement is sufficient to alert the decision-maker to relevant problems. The court also finds that no misrepresentations were consciously made, so that the impact statement meets the required standard of objectivity. NEPA creates neither the possibility of judicial decision-making nor of continual delay, but is intended only to provide a record upon which a decision-maker can arrive at an informed decision.

Counsel for Plaintiffs
Richard S. Arnold
Arnold & Arnold
P.O. Box 1938
Texarkana, Arkansas 75501

Edward Lee Rogers
P.O. Drawer 740
Stony Brook, New York 11790

Counsel for Defendants
W. H. Dillahunty U.S. Attorney
P.O. Box 1229
Little Rock, Arkansas 77203

[2 ELR 20353]

Eisele, J.:

MEMORANDUM OPINION NUMBER SIX

On January 13, 1972, the defendants filed with the Court the new environmental impact statement and simultaneously filed a motion for summary judgment in which they have asked the Court to dissolve and set aside the injunction.¹ The plaintiffs thereupon [2 ELR 20354] filed a comprehensive brief in opposition to the defendants' motion, contending, among other things, that there were genuine issues of fact yet to be disposed of.² Plaintiffs first contended that defendants' new EIS was "not impartial and objective" Court and counsel engaged in correspondence in an effort to define the type and degree of "objectivity" that was required by the NEPA. The Court concluded that, "at a minimum, the involved federal agency must make a good faith effort to comply with the provisions of NEPA". It further concluded that the NEPA does not permit impact statements to be "consciously slanted or biased" since a "contrary view would negate the requirement of good faith". The Court specifically emphasized the word "consciously" which, it stated, carried with it, "the inference of intentional misrepresentation".

After the above correspondence, the plaintiffs advised the Court that they would like the opportunity to prove that the impact statement was "consciously slanted or biased" and to show "actual bad faith or improper behavior" on the part of the defendants.A hearing for this purpose, and, indeed, to provide plaintiffs with an opportunity to present evidence upon any genuine issue of material fact which they believed remained in the case, commenced at 9:30 a.m. on April 27, 1972, and was concluded on the afternoon of April 28, 1972. At the conclusion of the hearing, the Court found from the bench that the defendants prepared the new impact statement in good faith and that said defendants had made a good faith effort to comply with the provisions of the NEPA. The Court further found that the new EIS was not consciously slanted or biased and that the defendants had not consciously or intentionally made any misrepresentations in the new EIS or consciously or intentionally withheld any pertinent information required by the NEPA. The Court also found that the defendants had attempted to make a full disclosure of the pertinent facts and opinions, both favorable and unfavorable, in the new EIS. The Court concluded that the new EIS met the "objectivity" requirements of the NEPA.

The plaintiffs also contend that the EIS arbitrarily and capriciously misstates the facts with respect to the effect of the dam upon the sport and recreation of canoeing. An expert canoeist, Mr. David Gail Cowart, testified that the most desirable canoeing conditions are those described in the new EIS as "intermediate". He further testified that these optimum flow conitions would be adversely affected by the construction of the dam. By personally observing the Cossatot River he made the judgment that the best canoeing conditions would result when the flow was between 200 cubic feet per second and 400 cubic feet per second. Starting with this judgment he then analyzed the hydrographs to determine the frequency of such conditions, first, assuming the dam in place and, secondly, assuming that the Cossatot remained a free-flowing river. The plaintiffs also urge, in this connection, that the basic hydrological information which now makes possible Mr. Cowart's testimony was not released by the defendants until the close of the period for comment on the new EIS.

Although one may fault the defendants for concluding that there was a much broader spectrum of flows which would support good canoeing and good floating (without first getting the advice and opinion of an expert canoeist), the Court cannot find from the evidence, or conclude as a matter of law, that the defendants have arbitrarily and capriciously misstated the facts. Certainly there was no deliberate or intentional misrepresentation on the part of the defendants.

Plaintiffs assert that the most seious deficiencies in the new EIS are evident in the defendants' discussion and development of the alternative of preserving the Cossatot as a "scenic river" under the National Wild and Scenic Rivers Act, 16 U.S.C. §§ 1271 et seq. The EIS does state that "the Cossatot . . . appears to have merit for consideration as a scenic river" (p. 3-38) and that "the Cossatot appears to have merit within the qualifications outlined for a scenic river designation because the river is indeed replete with scenic amenities" (p. 5-25). But plaintiffs argue that the statement appearing at page 5-24 that "the State of Arkansas has not designated, recommended, or asked for any action on the Cossatot pursuant to the Wild and Scenic Rivers Act" is not true. Evidence intended to support this charge was received at the most recent hearing. That evidence reveals that Mr. Troyt York, the Director of the Department of Planning for the State of Arkansas, wrote to Mr. Roy Wood, Regional Director, United States Department of Interior, Bureau of Outdoor Recreation, on June 16, 1971, recommending the Cossatot River for consideration "because it is the most unique white-water recreatiinal stream in the Ouachita and southwest Arkansas area, and becaus it is the only remaining high quality stream of this type in the southern part of the state having possibilities of preservation". It is clear that the existence of this letter was known to the defendants as early as August 31, 1971, on which date a representative of the plaintiffs so apprised the defendants in an oral statement read at a public hearing held by the defendants at Fort Smith, Arkansas. The problem, however, arises from the difficulty which the defendants had in obtaining directly from the State of Arkansas, or its appropriate agencies, a clear indication of the actual position of the state. Resolutions passed by the Arkansas General Assembly appeared to indicate that the state's position is that the dam should be constructed. On October 4, 1971, Colonel Morris wrote to Mr. York as follows:

"Information presented at the public meetings, held to secure information for the Gillham Lake environmental impact statement, indicates that your agency made some type of request to the Southeast Regional Office of the Bureau of Outdoor Recreation concerning the Cossatot as a Wild and/or Scenic River.

"Since we did not receive a copy of such a request in your correspondence or from BOR we assume you inadvertently overlooked furnishing it for inclusion in the environmental impact statement.

"Could we please have a copy of the request so it may be included."

On October 27, 1971, Mr. Harold E. Alexander, Head, Environmental Planning Division, Arkansas Department of Planning, responded to Colonel Morris' letter, stating, inter alia:

". . .I wish to note that our correspondence with the BOR did not specifically recommend that the Cossatot be so designated, but was in response to a request for suggestions as to outstanding scenic and recreational rivers in Arkansas which might be included in a study list which is being compiled by the BOR to evaluate possible inclusion in a list of rivers which might be recommended as components of the National Wild and Scenic River System. . . .

"We do believe that the Cossatot has outstanding qualities which would merit its consideration for designation as a wild and scenic river, and our comments included on the suggestions that this stream be added to the study list for such rivers. It is also our belief that this possibility [2 ELR 20355] provides an alternative to other plans which have been developed for this river, and that such an alternative should be considered as an alternative."

Mr. Roy Wood, the Atlanta office Regional Director of BOR, testified at this latest hearing as a witness for the plaintiffs. He indicated that the BOR had treated Mr. York's letter of June 1, 1971, as a recommendation that the Cossatot be designated as a scenic river and was proceeding accordingly.

It appears from Mr. Wood's testimony that his office has recommended the Cossatot, and it apparently is on the "50 list", specifying streams approved for study jointly by the Secretary of the Interior and by the Secretary of Agriculture. Mr. Wood was unable to give the Court any specific time frame within which further decisions or actions might be made or taken with respect to the Cossatot under the Wild and Scenic Rivers Act.

The Corps of Engineers did not write to Mr. Wood requesting a copy of the June 16, 1971, letter which he had received from Mr. York, but, as noted above, they did make the effort to obtain a copy of that letter directly from the Arkansas Department of Planning. It also appears from the evidence that neither the Arkansas Department of Planning nor any other agency of the State of Arkansas has written to Mr. Wood or to the BOR to withdraw the recommendation of June 16, 1971.

From all the above, the Court cannot find, as claimed by the Plaintiffs, that the statement in the EIS that "the State of Arkansas has not designated, recommended, or asked for any action on the Cossatot pursuant to the Wild and Scenic Rivers Act" is not true. Certainly it was not intentionally false, and, from all the facts, it can only be fairly said that the position of the State of Arkansas on the issue is ambiguous, probably reflecting the efforts of the various protagonists to affect state action.

It is clear that Mr. Wood has strong views on the desirability of preserving the Cossatot as a free-flowing river. The proposed dam would, in his words, "cut the heart out of it as a free-flowing river". The Court finds Mr. Wood to be very sincere in this opinion, and further finds that that personal opininion also represents the official position of the BOR as reflected by the evidence. Nevertheless, the Court finds that the EIS is sufficient to alert the decision-maker to the problem. And, so alerted, the decision-maker can make such further inquiry as might be deemed necessary, useful or helpful.

The defendants, immediately prior to the hearing on April 27, 1972, renewed their challenge to the standing of the various plaintiffs as a result of the decision of the United States Supreme Court in Sierra Club v. Horton, U.S. (decided April 19, 1972). The plaintiffs were permitted to orally amend the complaint to, in effect, allege the personal involvement by many of the members of the various plaintiff organizations, as well as of the two named, individual plaintiffs, in the use and benefit of the Cossatot as a free-flowing stream. Under the new allegations all plaintiffs contend that they, or members of plaintiff organizations,³ would be injured, in fact, by the damming of the Cossatot. Evidence in accordance with these new allegations was received at the hearing and, on the basis of all of the evidence and the law, the Court concludes that the decisions previously made by it with respect to the standing of the various plaintiffs should now be reaffirmed.

Finally, some general comments:

If this Court is correct in its interpretation of the NEPA, the plaintiffs here cannot look to the judiciary to reverse or modify any decision with respect to the building of the embankment across the Cossatot. If that decision is to be changed or modified, it must be through the actions of the appropriate decision-makers in the executive or legislative branches of our government. The judiciary can delay the construction of the dam pending compliance by the defendants with the congressionally mandated provisions of the NEPA but, ultimately, plaintiffs' only chance to stop the dam, or to alter same, lies in their ability — perhaps with the aidof others — to convince the decision-makers of the wisdom and correctness of their views on the merits.

The NEPA sets up certain requirements which, if followed, will insure that the decision-maker is fully aware of all the pertinent facts, problems and opinions with respect to the environmental impact of the proposed project. But the plaintiffs are not relegated solely to the provisions of the NEPA in contacting, and attempting to influence, those decision-makers. In addition, there are formal and informal, direct and indirect, means which the plaintiffs, and other citizens, may use in their attempt to reach and influence those decision-makers. The Court mentions this because it is obvious that the Congress must have been aware of such alternative methods of communication when it enacted the NEPA. The environmental impact statement is not to be equated to a trial court record which is examined on appeal by a higher court. Although the impact statement should, within reason, be as complete as possible, there is nothing to prevent either the agency involved, or the parties opposing proposed agency action, from bringing new or additional information, opinions and arguments to the attention of the "upstream" decision-makers even after the final EIS has been forwarded to CEQ. So it is not necessary to dot all the I's and cross all the T's in an impact statement.

Congress, we must assume, intended and expected the courts to interpret the NEPA in a reasonable manner in order to effectuate its obvious purposes and objectives. It is doubtful that any agency, however objective, however sincere, however well-staffed, and however well-financed, could come up with a perfect environmental impact statement in connection with any major project. Further studies, evaluations and analyses by experts are almost certain to reveal inadequacies or deficiencies. But even such deficiencies and inadequacies, discovered after the fact, can be brought to the attention of the decision-makers, including, ultimately, the President and the Congress itself. All of the usual methods of communication, political and otherwise, are still available for this purpose.

The Court does not believe that the Congress intended that the NEPA be used as a vehicle for the continual delay and postponement of legislative and executive decisions. From the very beginning of this case the Court has emphasized the freedom of the defendants to comply with the provisions of the NEPA and thereby to avoid the injunctive power of the courts. In the months between the filing of this action and the bearing upon the merits, the defendants could have complied with the Act and thereby have avoided the injunction. They chose, however, to stand upon a 12-page environmental impact statement, which, admittedly, was a mere recast of information already in defendants' files. Now, after having been enjoined, pending compliance with the NEPA, they have filed a voluminous report which, the Cort is advised, cost the taxpayers approximately a quarter of a million dollars. The Court cannot say that either the costs or the delays were necessary or justified in this case. In any event, these costs and delays were occasioned by the defendants' failure to comply with the law.

The Court is satisfied that the new EIS, although obviously not at fair and impartial and objective as if it had been compiled by a disinterested third person, meets the full disclosure requirements of the NEPA and is a record upon which a decision-maker could arrive at an informed decision. It may be that that decision-maker, in order to fully comprehend the objections and arguments advanced by the plaintiffs and others who oppose the project, will have to look carefully into the "back pages" and the appendices of the EIS. But there is no way that he can fail to note the facts and understand the very serious arguments advanced by the plaintiffs if he carefully reviews the entire environmental impact statement. Whether that decision-maker is influenced by such facts, opinions and arguments, or whether such facts, opinions and arguments cause that decision-maker to call for further studies and investigations, is another matter — not one over which this, or any other court, has any control.

The court reaffirms the conclusions of law set forth in its prior decisions in this case. 325 F. Supp. 728 and 325 F. Supp. 749 (1971).

The defendants, having now complied with the law, are no [2 ELR 20356] longer acting ultra vires. The basis of the Court's jurisdiction has therefore been removed. The injunction will be vacated and the case dismissed.

1. The new environmental impact statement (EIS) starts with the following resume:

"This statement represents the Corps' effort to comply with the Court's Final Order. Commensurate with the Court's opinion to the effect that the National Environmental Policy Act of 1969 is an environmental full disclosure law, all comments by persons, organizations, and government agencies, regarding the environmental impact statement, have been included and responded to in the statement.

"We have either reassessed or reaffirmed earlier decisions. A significant reassessment was our decision to modify the existing outlet works to include a higher level low-flow intake to gain additional flexibility in selective water quality discharges.

"A full range of alternatives to the completion of the project as designed has been considered and environmental impacts of each alternative have been evaluated. The principal thrust of the statement is an interdisciplinary assessment of the environmental impacts of the project and the alternatives on the total environment."

The main body of the statement, consisting of approximately 200 pages, is broken down into a summary and eight "paragraphs". The first paragraph contains a description of the project as originally approved. The remaining seven paragraphs, as indicated by their respective titles, contain a statement of: "Environmental Setting Without the Project", "Environmental Impacts of the Proposed Action", "Adverse Environmental Effects Which Cannot Be Avoided Should the Proposal Be Implemented", "Alternatives to the Proposed Actions", "Relationship Between Short Term Uses of Man's Environment and the Maintenance and Enhancement of Long Term Productivity", "Irreversible or Irretrievable Commitment of Resources Which Would Be Involved in the Proposed Action Should It Be Implemented", and "Coordination With Others".

There are six appendices to the statement, consisting of approximately 1,150 pages. Appendix I contains copies of all correspondence between the Corps and concerned public and private agencies and individuals and the transcripts of public meetings held at Fort Smith, Arkansas, on August 31, 1971, and in DeQueen, Arkansas, on September 8, 1971. Appendix II contains copies of photographs taken of the project area. Appendix III contains statements with respect to the following "Environmental Elements": Archeology; Geology; Botany; Zoology; Economic Conditions, Social Relationships, and Human Well-being; and Hydrology and Water Quality. Appendix IV contains a bibliography of all literature cited in the statement. Appendix V contains a copy of the transcripts of this Court's proceedings held on November 24, 1970, and February 8, 9 and 10, 1971, including a copy of the pleadings filed in the case. Appendix VI sets forth the qualifications of the "Interdisciplinary Personnel" utilized by the Corps in connection with the statement.

A large portion of the EIS concerns the Corps' coordination with other agencies and individuals. This coordination began on July 2, 1971, with a letter to all known interested agencies, groups and individuals. That letter, which enclosed the format and portions of the preliminary draft of the new EIS, requested that the recipients furnish any environmental data which they thought should be used in the preparation of the statement. This letter was followed by letters on July 16 and July 30 enclosing additional or revised sections of the preliminary draft. And, on August 6, additional material was forwarded completing the draft EIS. The inputs received from these letters were summarized and responded to in the main body of the impact statement. The federal agencies which responded to this letter were: The Nation Oceanic and Atmospheric Administration; The Environmental Protection Agency; The Department of Health, Education and Welfare; The Department of Transportation; The National Park Service; The Bureau of Outdoor Recreation; The Soil Conservation Service; The Forest Service; The Department of State; The Federal Power Commission; and The Bureau of Sport Fisheries and Wildlife. The State of Arkansas agencies which responded were: The Soil and Water Conservation Commission, The Department of Health, The Department of Pollution Control and Ecology, and The Department of Planning. In addition, several private environmental societies and groups were contacted. Among them were: The Arkansas Environmental Research Society, The Arkansas Ecology Center, The Ozark Society, The National Water Resources Committee — Sierra Club, The Sierra Club — Tulsa Group and The Environmental Defense Fund. Also, many individuals, including the attorney for the plaintiffs and the individually-named plaintiffs, were contacted and did respond.

The final phase of coordination occurred in connection with the review of the August 6, 1971, draft of the statement. This coordination was conducted with many of the federal and state agencies and private groups listed above. Their comments and suggestions were also included in the final draft of the EIS.

Finally, the Corps conducted public hearings at Fort Smith, Arkansas, on August 31, 1971, nd in DeQueen. Arkansas, on september 8, 1971. These meetings drew a large attendance, approximately 261 people, and their comments were categorized and responded to in the final statement. In addition, a transcript of these proceedings was included as an appendix to the statement.

2. Although the Court agreed with the plaintiffs that certain limited factual issues remained, most of the arguments and contentions of the plaintiffs turn upon issues of law which can be disposed of by summary judgment. Because of severe restrictions upon the Court's time and because the Court is not required to file an opinion with respect to the disposition of legal issues upon summary judgment, this memorandum will not take up and discuss all of the issues of law raised by the plaintiffs. It will deal primarily with the factual issues remaining in the case and those issues of law which relate to such factual issues.

3. The Court ruled in its Memorandum Opinion Number Two, Environmental Defense Fund, Inc., et al v. Corps of Engineers of the United States Army, et al, 325 F. Supp. 736 (E.D. Ark. 1971). that the plaintiff non-profit membership organizations had standing to represent the active members of those organizations, and the Court further instructed said plaintiffs to notify their members of the pendency of this suit. Defendants did not, at that time, contend, nor do they now contend, that plaintiff organizations do not have the standing to represent their active members.