McPhail v. Corps of Engineers

No. 38203 (E.D. Mich. September 12, 1972)

The court refuses to grant a temporary restraining order in a suit to enjoin further construction on the River Rouge Flood Control Project in the Detroit metropolitan area. The court concludes that the omission of data utilized in the cost-benefit analysis does not invalidate the environmental impact statement.

Counsel for Plaintiffs
V. Paul Donnelly
7706 Amboy Road
Dearborn Heights, Michigan 48127

Edmund O'Rourke
Elsman, Young & O'Rourke
2050 Guardian Building
Detroit, Michigan 48226

Counsel for Defendants
Barry Blyvis Assistant U.S. Attorney
813 Federal Building
Detroit, Michigan 48226

Joseph Burtell
William C. Hultgran
13615 Michigan Avenue
Dearborn, Michigan 48126

[3 ELR 20237]

Joiner, J.

MEMORANDUM OPINION

The plaintiffs, a group of concerned citizens, have come before this court seeking to enjoin further construction on the River Rouge Flood Control Project by the United States Army Corps of Engineers. If the construction is not enjoined one of the few remaining areas of wild greenery in the Detroit metropolitan area will be destroyed. Plaintiffs contend the destruction will cause them to lose the opportunity to observe and enjoy the wildlife and vegetation which abounds in any "natural" environment.¹

The Corps of Engineers is not merely destroying this beautiful area for the mere sake of destruction; on the contrary, it is a sacrifice that must be made, the Corps contends, in order to control the flood problem annually faced by the City of Dearborn.² The River Rouge has for years gone over its embankment and caused untold thousands of dollars in damages.

The plaintiffs base their request for a temporary restraining order on the alleged failure of the Corps of Engineers to comply with 42 U.S.C.A. 4332 (2) (C), the plaintiffs contending that the Corps has not filed a sufficiently detailed environmental impact statement.³

There is no doubt the recent years have seen more concern about our nation's environment than at any other time in our history. The [3 ELR 20238] volume of litigation has increased to such an extent that a market now exists for the publication of a reporter containing nothing other than cases concerning the environment. The Congress in response to these concerns declared a national policy to promote and encourage harmony between man and his environment.⁴ The Congress set as its goal the preservation or rehabilitation of the natural environment on behalf of future generations of Americans.⁵ In order to attain these policies and goals the Congress enacted 42 U.S.C.A. 4332, set forth in the margin supra, and popularly known as the National Environmental Policy Act, or more simply as NEPA. It is the NEPA, paragraph (2) (C) which requires a detailed environmental impact statement.

The purpose of the impact statement is to make certain that the decision maker is fully aware of all the pertinent facts, problems and opinions regarding a project's environmental impact before the decision maker makes his decision. Thus at a minimum the involved federal agency, here the Corps of Engineers, must make a good faith effort to comply with the provisions of NEPA. A consciously biased or slanted impact statement would not meet this test. To hold otherwise would negate the good faith requirement, EDF vs. Corps of Engineers, 342 F. Supp. 1211 (E.D. Ark. 1972), 4 ERC 1097. Nor may omissions from the impact statement be tolerated."The Courts must be certain the responsible federal agency has made a full disclosure of environmental consequences to the decisionmakers.", EDF vs. Corps of Engineers, __ F. Supp. __ (N.D. Miss. 1972), 4 ERC 1408.

In the present case there is no allegation that the environmental impact statement submitted by the defendants was consciously slanted or biased. The plaintiff does, however, contend there has been some serious omissions. The plaintiff specifically contends, in the affidavit of Mr. Joseph C. Goss,⁶ ". . . that the benefit cost ratio test (in the impact statement) uses figures so gross that it is impossible to critically analyse (sic) the data."

The court in the Mississippi EDF vs. Corps of Engineers case grappled with a similar issue. There it was noted that the impact statement is to supply explicit findings concerning the proposed activity's impact on the environment. The court went on, however, to apply what it termed a rule of reason by holding that insignificant matters may be excluded. The court concluded that ". . . maps, backup data, or documentation dupporting the agency's views . . ." may be omitted. (Emphasis added.)

The NEPA requires submission of a detailed statement on five specific points. The plaintiffs here are complaining the statement is not detailed enough because conclusions were used in the computation of the benefit cost test and the data upon which the conclusions were based was omitted. Plaintiffs do not, however, make clear which of the five points was not given careful (or careful enough) consideration. This ruling does not turn on plaintiffs' failure for it is likely the complaint could be amended to reflect the necessary specificity.

If the environmental impact statement submitted by the Corps of Engineers in the River Rouge Flood Control Project is compared to the requirements of 42 U.S.C.A. 4332 (2) (C), it is readily apparent that the statute has been complied with, at least in reference to the five specific subpoints on which a detailed statement is to be submitted.

The statute requires a detailed statement on:

(i) the environmental impact of the proposed action. The report bluntly states, at page 3-2, that the ". . . natural (river) bottom and banks will be replaced by concrete pavement;⁷ the habitat conditions for the existing biological communities will be eliminated." This statement is direct, clear and concise. One need not approve of the impact, but it cannot be denied that the Corps of Engineers has set forth what the impact will be.

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented. The Corps of Engineers has set forth at page 4-1 of the impact statement that the ". . . wildlife habitats and biological productivity of the river in the proposed project will be reduced significantly . . ." Further, ". . . meandering bends in the river . . . will be eliminated . . ." And, "The aesthetic quality of the open natural area adjoining (the river) will be diminished by the Project." While it might be argued that the Corps has been extremely delicate in its choice of words, the implication is clear that anything resembling a natural river or habitat (assuming this is an adverse environmental effect) is going to be removed or destroyed should the proposal be implemented. Again, the Corps of Engineers, albeit not as forthrightly as possible, has complied with the terms of the statute.

(iii) alternatives to the proposed action. The Corps of Engineers has listed in the impact statement a list of alternatives to the "Whole Project", which included levees and floodwalls, channel diversion, reservoirs, and acquisition of the flood plain. The Corps of Engineers also provided a list of alternatives to Channel Section B.⁸ The first [3 ELR 20239] three alternatives are for a wet-weather earth channel, for a modified concrete channel, or for levees and floodwalls. The first three plans were submitted to the Corps of Engineers by the Rescue the Rouge Committee or by the Rouge River Basin Council. They are set forth in detail, along with the mitigated environmental effects, and the reasons why the Corps of Engineers considers them not feasible.

Among other alternatives to the plan for Channel Section B was the Corps of Engineers' own levees plan, proposals by the Bureau of Sport Fisheries and Wildlife, and what is termed the "no action" alternative. Each of the plans is discussed in detail, along with the Corps of Engineers' reasons for not adopting the particular plan. Because of this finding, it must be concluded the plaintiffs' amended complaint is in error.⁹

The environmental impact statement does not indicate whether this is all the alternative plans, but there is nothing to indicate the existence of any other plan, reasonable or otherwise. The plaintiffs have not asserted that any plans have been overlooked or omitted.

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity. The Council for Environmental Quality explains in its Guidelines that this portion of the statute ". . . in essence requires the agency to assess the action for cumulative and long-term effects from the perspective that each generation is trustee of the environment for succeeding generations." 35 Fed. Reg. 7390 (April, 1970). This apparently means to contrast the effect of the proposed action on future generations of Americans to the effect of no action on the same future Americans.

The Corps of Engineers has explained in the impact statement that the obvious value of the project is flood control. It has more trouble assessing the future use of the river if the project were not implemented. Much seems to depend on whether the river continued in its now incredibly polluted state, and on whether the pollution increased or decreased in the future. It is also pointed out in the impact statement that some conflict will nevertheless exist between the potential long-term productivity of the river and adjacent land area, and the development of the flood control project.

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. Once again, the Corps of Engineers has been extremely candid in the environmental statement. At page 7-1 it is noted that "Irretrievable commitments of resources when the project is implemented will be the present natural bed of the Rouge River with its accompanying cover, habitats, and biological communities in the 5.8 mile section included in the project. Also lost will be some flood plain forests and some open fields and woodlots in the project area. Practically no natural, productive wildlife habitat will survive if the project is implemented and there will be a permanent loss to present recreational uses, and aesthetic qualities afforded by the open natural area." (Emphasis added.)

The CEQ Guideline, 35 Fed. Reg. 7390 (April, 1970), explains that this portion of the statute ". . . requires the agency to identify the extent to which the action curtails the range of beneficial uses of the environment." There is no doubt that the Corps of Engineers' position as set forth in the impact statement identified the extent to which the project will curtail the beneficial use of the environment in that the Corps of Engineers is admitting the project will virtually destroy the natural environment.

It was previously noted that the Corps of Engineers used conclusions, an obvious mathematical necessity, in the computation of the benefit cost test. The Corps omitted the data upon which the conclusions were based. Plaintiffs contend this omission violates the NEPA requirements for a detailed statement. This court has concluded the omission does not violate the statutory mandate of 42 U.S.C.A. (2) (C) (i)-(v). It is, of course, possible that such an omission would reflect a lack of good faith. It must be remembered, however, that the entire purpose of the NEPA is to provide the decision maker with the appropriate data concerning the environment so as to enable him to make a decision in accord with the policies and goals of the Congress. The Final Environmental Impact Statement and its attached appendix indicate this was achieved.

Appendix A to the Final Environmental Impact Statement consists of letters from the Department of Commerce, the Department of Agriculture, the Environmental Protection Agency, the Department of Transportation, the Department of Housing and Urban Development, the Michigan Department of Natural Resources, the City of Dearborn, the City of Detroit, the Rouge River Basin Council, the Ford Motor Company, the Michigan United Conservation Clubs, the Michigan Audubon Society, all of whom commented on the draft environmental impact statement. There are also included letters from some individual concerned citizens who obtained a copy of the initial draft. The final impact statement includes a condensation of the comments in each of these letters and the Corps of Engineers response thereto.

The plaintiff in its brief accurately contend that the Department of the Interior and the Department of Commerce raise questions about the benefit cost test which the plaintiffs are contending is inadequate. The letter from the environmental action group, the Rouge River Basin Council, specifically raised a question about the supporting data used in the compilation of the conclusions utilized in the benefit cost ratio test.¹⁰ The questions raised by these parties are supposed to substantiate plaintiffs' allegation of incompleteness.

The Corps of Engineers included in the impact statement a response to each of these letters. It may be that the parties were not or are not satisfied with the answer or response the Corps makes to each of these letters. The point is, however, that these questions were raised and included in the impact statement.If one assumes the decision maker read the impact statement before any action on the project was authorized, then it must necessarily be assumed that he knew of the objections surrounding the benefit cost test. The objections would certainly put him on notice of the omission plaintiff complains of. The decision maker could have requested the supporting data if he deemed the omission substantial, material, or in some other manner important.

The rule of reason says some conclusions without supporting data are acceptable. Implicit in this rule is the statement that not all omissions are such as to force a conclusion that a NEPA environmental impact statement is not sufficiently detailed. This being true the courts will not interfere with, nor second guess, the decision of the decision maker, especially where the decision maker knew of the omissions and their possible consequences.

The plaintiffs will be left to whatever political devices they can muster and the exercise of their not inconsiderably political muscle, and the request for a temporary restraining order is denied.

1. Plaintiffs make these assertions in the affidavits of Messrs. Saillant, Salmeen, Peters, and Ms. Young, which were filed with the original complaint.

2. The City of Dearborn, wherein the natural area is located, has through its attorneys intervened in support of the defendants.

3. 42 U.S.C.A. 4332

The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (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 the environmental design arts in planning and in decisionmaking which may have an impact on man's environment;

(B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by sub-chapter II of this chapter, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations;

(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 withand 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 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;

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

(E) recognize the worldwide and long-range character of environmental problems and, where consistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and programs designed to maximize international cooperation in anticipating and preventing a decline in the quality of mankind's world environment;

(F) make available to States, counties, municipalities, institutions, and individuals, advice and information useful in restoring, maintaining, and enhancing the quality of the environment;

(G) initiate and utilize ecological information in the planning and development of resource-oriented projects; and

(H) assist the Council on Environmental Quality established by subchapter II of this chapter.

4. 42 U.S.C.A. 4321

The purposes of this chapter are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.

5. 42 U.S.C.A. 4331

(a) The Congress, recognizing the profound impact of man's activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.

(b) In order to carry out the policy set forth in this chapter, it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may —

(1) fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;

(2) assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings;

(3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences;

(4) preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity and variety of individual choice;

(5) achieve a balance between population and resources use which will permit high standards of living and a wide sharing of life's amenities; and

(6) enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.

(c) The Congress recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.

6. Mr. Goss is a cost account employed by the Ford Motor Company.

7. Plaintiffs' amended complaint, page 2, describes this as "channelization", or the straightening and deepening of a riverbed and the provision of a cement bottom.

8. Channel Section B is the portion of the plan in which the affected wild areas are located. At the present time the plan is approximately 3% completed. The government attorneys estimated at the hearing that to suspend further performance of the contract would cost the government between $50,000 and $75,000 per week. If these estimates are correct, a 30 day restraining order, using the lesser of the figures, would cost the United States taxpayers in excess of $200,000. Of course irreparable damage will result if the restraining order is not issued, and the plaintiffs ultimately prevail at a trial.

9. Paragraphs 13(G) through 13(J) of the amended complaint charges the Corps of Engineers with"Failure to consider in detail . . ." or "Grossly discounting . . ." or "Failure to adequately consider . . ." some of the possible alternatives to the project.

10. The impact statement includes a twelve page response to the comments and inquiries of this party alone.