Akers v. Resor

Civil Action No. C-70-349 (W.D. Tenn. December 28, 1972)

A Corps of Engineers stream channelization project is halted pending compliance with §§ 102(2)(A), (B), (C) and (D) of NEPA. Before arriving at a cost-benefit ratio, the interdisciplinary approach of § 102 (2) (A) requires consultation with agencies having jurisdiction over areas affected by a project, including here the Department of Agriculture, the Tennessee Highway Department, and the Tennessee Planning Commission. "Specific" inquiries must be made by the Corps with respect to project-related costs, including maintenance and loss of resources. Under § 102 (2) (B), consideration of presently unquantified environmental amenities requires objective, in-depth studies of reasonable opportunity losses, as well as effects on flyways, waterfowl production and water quality. The assumption that the Corps could ignore lost opportunities for hiking and bird watching because most of the land was privately owned was not reasonable. Furthermore, § 102(2)(B)'s mandate to consult with CEQ does not require the Corps to consult with CEQ on each project if general methods for quantifying environmental amenities are identified and developed. In order to comply with both § 102(2)(C)(iii) and § 102(2)(D) the discussion of alternatives must include all those put forward by respectable opinion. Moreover, the alternative of deferring work until land for a Mitigation Plan is acquired must be included, since the Corps recognizes that it will be practically impossible to acquire suitable land after work is completed. In addition, the impact statement must otherwise comply with the standards set out in Environmental Defense Fund, Inc. v. Froehlke, 2 ELR 20620. The court does not reach the substantive question of whether the decision to proceed was correct. However, it does reiterate that substantive review would be narrow, and that an arbitrary and capricious finding would be rate where NEPA's rigorous procedural requirements have been met.

Counsel for Plaintiffs
John H. Warfield
Warfield, Entrekin and Jones
19th Floor, Third National Bank Building
Nashville, Tennessee 37219

Counsel for Defendants
Lurton Goodpasture
Goodpasture, Carpenter, Woods and Sasser
6th Floor, American Trust Building
Nashville, Tennessee 37201

[3 ELR 20157]

Brown, C.J.

MEMORANDUM DECISION

The last rulings we made in this case are set out in the memorandum decision reported in 339 F. Supp. at 1375. Since then we have held a plenary evidentiary hearing and, after the transcript finally became available, the parties filed post-trial briefs. Moreover, the federal defendant has supplemented the record to show that the plan of mitigation proposed by the Corps of Engineers has been submitted to Congress.

We made clear in our prior memorandum that we would be concerned, at the plenary hearing, with the question whether the Corps, in deciding to continue work on this project, had complied with the procedural requirements of the National Environmental Policy Act of 1969 (42 U.S.C.A. 4321 et seq., hereinafter "NEPA").¹ We also indicated in our prior memorandum that we would be concerned with the substantive question whether the Corps' decision to proceed with the project was, under NEPA, a correct one, but we indicated that our review would be a narrow one, limited to the question whether the decision was arbitrary or capricious.² It is difficult to imagine, however, a situation in which [3 ELR 20158] an agency had complied with the rigorous procedural requirements of NEPA and yet the substantive decision could be held to be arbitrary or capricious. In any case, since we herein determine that the Corps has not complied with the procedural requirements of NEPA, we do not reach the substantive issue.³

The procedural requirements of NEPA are contained in 42 U.S.C.A. § 4332. Therein it is provided, first:

"The Congress . . . directs that, to the fullest extent possible: . . . (2) all agencies of the Federal Government shall —

(A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and environmental design arts in planning and in decisionmaking which may have an impact on man's environment;"

Pursuant to this provision, it is required of a decision maker that it take into account all possible approaches to the project, including abandonment; and while the agency sponsoring the project is assumed to have a built-in bias in favor of the project and is not required to be subjectively impartial, it must exercise good faith objectivity. Environmental Defense Fund, Inc. v. Corps of Engineers, __ F.2d __, (8th Cir., decided November 28, 1972).

In justifying this project on a benefit-cost basis, the Corps relies a great deal on the flood protection the project will render to lands already in cultivation and on the fact that increased flood protection and improved drainage will cause more clearing of land for cultivation. Thus the increase in crop output, in the view of the Corps, will raise the relatively low average income in the area.⁴ However, the Corps did not consult with the United States Department of Agriculture, other than the Forest Service, although the Soil Conservation Division of the Department had issued a memorandum to the effect that channelization should not be effected where the purpose is to bring new lands into agricultural production. Moreover, the Department administers programs of payments to landowners to keep land out of production for the purpose of supporting the price of some products or for the purpose of building up the land. It therefore appears that the Department of Agriculture is obviously an agency to be consulted in taking an interdisciplinary approach to the problems of these river basins. Another reason why the Corps should have consulted with the Department of Agriculture is that its Soil Conservation Division has been making a study, with the Tennessee Department of Conservation as one of the sponsoring agencies, to determine the best use that can be made of the resources of these river basins. It further appears that if the contemplated channelization is to be completed, there is not much point in conducting or completing this study.

In arriving at its favorable benefit-cost ratio with respect to this project, the Corps had to take into account the cost of maintenance of these channels although the State of Tennessee has been standing and will stand this expense. It appears that the Corps estimated this cost to be $600.00 per mile without having consulted with the Tennessee Highway Department, which is the involved State agency and which, it appears, is of the view that the cost will be substantially higher. It is true that the Corps sent a copy of its Environmental Impact Statement (hereinafter "EIS"), together with its proposed Fish and Wildlife Mitigation Plan (hereinafter "Mitigation Plan") to the Highway Department for comment, and it is true that the Corps' estimate of maintenance cost is embedded in these documents, and it is true that the Highway Department did not comment, but we do not believe that this satisfies the requirement the Corps exercise an interdisciplinary approach. Certainly the Corps could and should have made specific inquiry with respect to projected maintenance cost.⁵

It appears that the Corps, though it has a division that is concerned with such matters, did not consult with the Tennessee Planning Commission. The function of the Planning Commission is to make studies of land use and to make zoning recommendations to the relevant governmental bodies such as municipalities and counties. The Planning Commission is generally opposed to building in the flood plains of rivers and to denuding such flood plains of their forests. Certainly, since the basins of these two rivers include a large area in this State, the Corps should have consulted with the Planning Commission before deciding to go ahead with a project that would profoundly affect the land use in the project area.

The procedural requirements of NEPA (contained in 42 U.S.C.A. § 4332) next provide:

"The Congress . . . directs that, to the fullest extent possible . . . (2) all agencies of the Federal Government shall —

* * *

(B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality . . . which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations;"

At the outset we do not agree with plaintiffs that this provision requires consultation by the Corps with the Council with respect to each project, though it does require consultation with the Council to develop general methods and procedures to insure that unquantified values are given due consideration by the Corps in the handling of its many projects. It does not appear clearly in this record as to what the Corps did with regard to such required consultation, but it does appear clear that the Corps did not give unquantified amenities and values appropriate consideration.

The Corps recognizes that the proposed channel enlargement and straightening with the consequent reduced flooding and the consequent drainage of these wetlands will have a profound effect on the ecology of the area. In arriving at its benefit-cost ratio, the Corps gave money values to the hunting and fishing that will be lost and which loss need be offset by mitigation features. It determined that, since most of the involved land is privately owned, no loss of opportunities for hiking, bird watching and the like need be considered. This factual assumption that there will not be, as a result of this project, any decrease in such opportunities does not seem to be reasonable. But, more important, in the EIS and accompanying Mitigation Plan the Corps deals only peremptorily with the accepted importance of these wetlands to the Mississippi flyway, to the production of water fowl, to the water quality in these streams and to other unquantifiable values. In acknowledging that it had been urged by others, including the Tennessee Game and Fish Commission, that much more than its proposed acquisition of 14,400 acres of mitigation land should be acquired to reduce the loss of these unquantified values, the Corps replied that acquisition of more land "involves an exercise of judgment." The point is that the EIS and Mitigation Plan must affirmatively show that the Corps has made an in-depth study of these unquantified values that are to be lost and has made an objective judgment as to the effect such loss should have on the decision to drain these wetlands and on the decision, if the project is to proceed, as to how much mitigation land should be purchased and developed.

The procedural requirements of NEPA (contained in 42 U.S.C.A. § 4332) further provide for the filing of the EIS with the Council on Environmental Quality, setting out the matters to be covered in the EIS. It is provided:

[3 ELR 20159]

"The Congress . . . directs that, to the fullest extent possible . . . (2) all agencies of the Federal Government shall —

* * *

(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on —

(i) the environmental impact of the proposed action,

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

(iii) alternatives to the proposed action,

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

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

Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes;"

In Environmental Defense Fund, Inc., et al. v. Froehlke, et al., __ F.2d __ (8th Cir., decided December 14, 1972), the Court of Appeals reversed the District Court which had approved an EIS filed by the Corps in connection with the Cache River project in northeastern Arkansas. It appears from the opinion that the project is very similar to the one before this Court, and presented very similar issues. Much of what that Court of Appeals said with respect to the EIS in that case could be said about the EIS in this case. The EIS before this Court deals with the impacts of the proposed action in one page, the adverse effects in less than one page, and the alternatives in three pages. Suffice to say, this EIS is, in the words of the Eighth Circuit Court of Appeals, ". . . too vague, too general and too conclusionary."

Since the next following subsection of 42 U.S.C.A. § 4332 provides that the sponsoring agency must:

"(D) study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available services;"

we will deal together with the shortcomings of the EIS with respect to its discussion of alternatives and with the failure of the Corps to satisfy the just-quoted provision.

With respect to the possibility of substituting clearing and snagging for channel straightening and enlargement, after stating such is now proposed for the very upper reaches of the rivers, the EIS says only this:

"However, in the lower reaches the channels are clogged with debris and sediment to the extent that they are almost non-existent. Clearing and snagging of these reaches would be a major and costly operation and no material savings in construction cost would be realized by the substitution. In addition, based on our observations of this and other basins in the district, it is believed that substituting clearing and snagging for enlargement would not significantly affect the amount of woodland converted to agricultural use. Therefore, it was concluded that the flood control benefits foregone would be much greater than the savings in cost, and, as a result, a reduction in the degree of flood protection to be provided in the lower reaches is not feasible."

From this statement one would first conclude that the cost of clearing and snagging would be substantially as great as channel enlargement and straightening. Next one would conclude that it would be almost as effective with respect to flood control and drainage, since there would not be significantly less woodland converted to agricultural use. However, the statement then seems to say, after all, that flood control would be less. It is our opinion that the foregoing discussion is insufficient as a basis for making a judgment as between clearing and snagging versus channel enlargement and straightening.

In addition to its failure to discuss in depth the alternatives that are dealt with, the EIS simply omits dealing with alternatives that are put forward by respectable opinion, such as flood plain planning and zoning, flood plain insurance, and upstream structures to hold back water. Moreover, while the Corps is recommending the acquisition and development of 14,000 acres of mitigation land, it does not discuss and deal with the alternative of deferring channel enlargement and straighening until after such land is acquired. Rather, the Corps proposes to go ahead now with its channel work and discusses the alternative of acquiring the mitigation land if and when Congress provides the funds. The Corps is, of course, correct in its position that it is up to Congress whether that body will supply funds for the mitigation land recommended for acquisition; but it is up to the Corps to consider in depth and discuss in its EIS the alternative of deferring its work until the land can be acquired, especially since it recognizes that it will be practically impossible to acquire suitable land after it has done its work.

In summary, then, this Court concludes that the Corps has not complied with the procedural requirements of NEPA, including the requirement with respect to the content of the EIS. With respect to the EIS, it should be pointed out, as is stated in the Froehlke case from the Eighth Circuit, supra, the Corps must comply with the guidelines of the Council on Environmental Quality and the Corps' own guidelines.

Counsel will prepare a judgment for submission to the Court. We suggest that counsel consider the remedies described at the end of the Froehlke opinion, supra, in this connection.

1. We did not make it clear that we would not be additionally and separately concerned with compliance with the procedural requirements of the Fish and Wildlife Coordination Act of 1958 (16 U.S.C.A. § 661 et seq.). However, since it appears that compliance with NEPA would automatically mean compliance with the Act of 1958 (Environmental Defense Fund, Inc., et al. v. Froehlke, et al., __ F.2d __ (8th Cir. decided December 14, 1972)), we can now state that we have no concern with such compliance with the latter Act.

2. At that time there was not much decisional law on the question whether NEPA creates a right assertable by private plaintiffs to challenge the ultimate decision to proceed with a project. Calvert Cliffs' Coordinating Committee, Inc. v. United States Atomic Energy Commission, 449 F.2d 1109 (D.C. Cir. 1971) held that it does create such a right. Since then, our own Court of Appeals, in Environmental Defense Fund, et al. v. Tennessee Valley Authority, __ F.2d __ (decided December 13, 1972) alluded to but expressly did not decide this question. In Environmental Defense Fund, Inc. v. Corps of Engineers, __ F.2d __ (decided November 28, 1972), the Eighth Circuit, citing considerable recent decisional support, held that NEPA does create the substantive right to challenge the validity of decisions made by agencies and also held that the review should be the narrow one herein indicated.

3. With respect to this issue, a few observations now, however, may not be amiss. It appears from the proof that the work to be done will, when completed, according to the Corps render only a "low degree" of flood protection. Thus we suspect that the local supporters of the project have an overly sanguine view as towhat it will accomplish. On the other hand, the situation as it now exists is far from ideal from the ecological point of view because there is considerable timber killing due to water standing too long in the flood plain. Thus even plaintiffs agree that something should be done to remedy such conditions. Lastly, there is disagreement as to whether the program of the Corps for carrying out this project is, from a strictly engineering point of view, a valid one. Plaintiffs contend that the contemplated channelization upstream will not accomplish its purpose unless the plug is pulled at the outlet to the Mississippi River. The Dyer County Levee and Drainage District No. 1 passed a resolution to that effect on December 2, 1970.

4. It does not appear from the record to what extent increased income caused by increased crop output will actually go into the hands of lower income people.

5. We do not agree, however, with plaintiffs that the requirement that the Corps exercise an interdisciplinary approach means that the Corps must have face-to-face meetings with other agencies.