UNITED
STATES COURT OF APPEALS
For
the Second Circuit
__________________
August
Term, 2002
(Argued: September 4, 2002 Decided:
October 09, 2002 )
Docket No. 01-6199(L), 01-6102(XAP)
__________________
Walter Pogliani, Jacqueline Dunn, Stephen Dunn,
Robert H. Boyle
Dimitri Sevastopoulo, Ian Nitschke, and
Stand Together Oppose Power Plant,
Plaintiffs-Appellants,
— v .—
United States Army Corps of Engineers,
Defendant-Appellee.
__________________
B e f o r e :
Calabresi and B. D. Parker,
Jr.,
Circuit Judges,
and Stein,
District Judge.*
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Plaintiffs
appeal from an August 10, 2001 opinion of the United States District Court for
the Northern District of New York (Norman A. Mordue, Judge) denying
their motion for a preliminary injunction.
We affirm.
__________________
Kenneth F.
McCallion, New York,
New York, for Plaintiffs-Appellants.
Elizabeth S.
Riker, Assistant United
States Attorney (for Joseph A. Pavone, United States Attorney), United States
Attorney’s Office for the Northern District of New York, Syracuse, New York, for
Defendant-Appellee.
__________________
Per Curiam:
Plaintiffs,
concerned citizens and property owners in Athens, New York, appeal from the
denial of their motion to preliminarily enjoin the issuance of an Army Corps of
Engineers (“Corps”) permit allowing the use of federal waters and wetlands for
construction of an electric generating plant in Athens, near the banks of the
Hudson River. The majority of the
issues raised on this appeal have been resolved in a summary order filed today
separately from this opinion. We write
to address whether the Corps was statutorily required to give plaintiffs thirty
days advance notice of certain of its decisions.
The
facts and procedural history of this case, with which we assume familiarity,
are set forth in the thorough opinion of the District Court. See Pogliani v. United States Army
Corps of Eng’rs, 166 F. Supp. 2d 673 (N.D.N.Y. 2001). Relevant here are the procedures the Corps
was required to follow in its review of the generating project under the
National Environmental Policy Act of 1969, (“NEPA”), 42 U.S.C. §§ 4321 et
seq., which Congress enacted to ensure that federal agencies examine and
disclose the potential environmental impacts of projects before allowing them
to proceed. See Baltimore Gas
& Elec. Co v. Natural Res. Def. Council, 462 U.S. 87, 100 (1983); Kleppe
v. Sierra Club, 427 U.S. 390, 417 (1976); 40 C.F.R. § 1500.1(b) (2001)
(“NEPA procedures must insure that environmental information is available to
public officials and citizens before decisions are made and before actions are
taken.”). The Act provides that “all
agencies of the Federal Government” shall, upon proposing a “major federal
action” that will “significantly affect the quality of the human environment,”
prepare a detailed statement describing the environmental impact of the
proposed action, a so-called environmental impact statement or EIS. 42 U.S.C. § 4332(2)(C) (2000); see also
40 C.F.R. § 1502 (2001). If, at the
outset, an agency is unsure about the potential environmental impact of a
project or believes that there will be no significant impact, it prepares an
environmental assessment or EA, which examines the environmental aspects of the
project in less detailed terms than an EIS.[1] See 40 C.F.R. § 1501.4(b) (2001); 33
C.F.R Pt. 325, App. B ¶ 7 (2001). NEPA
does not require an EIS to be issued; an agency need only prepare an EIS when
it finds (either at the outset or through an EA) that a project will have a
significant environmental impact. See
42 U.S.C. § 4332(2)(C); 40 C.F.R. §§ 1501.4(c), 1508.9(a)(1), 1508.13
(2001). The agency must involve the
public in the NEPA review process and consider the views of other interested
federal, state, and local entities in making its decision. See 42 U.S.C. § 4332(2)(C); 40
C.F.R. § 1506.6 (2001).
In
this case, the project owner, Athens Generating Company (“AGC”), applied for a
Corps permit in February 1999. After
more than two years of review during which the Corps consulted with several
other federal and state agencies and held multiple public hearings, it issued a
permit to AGC along with an EA in which it concluded that the proposed
construction would not have a significant impact on the environment (a
so-called Finding of No Significant Impact (“FONSI”)). In their complaint, plaintiffs seek to
enjoin the permit on the ground that an EIS should have been prepared. The District Court denied their motion for a
preliminary injunction, and plaintiffs appealed.
We
review the denial of a preliminary injunction motion for abuse of
discretion. Zervos v. Verizon New
York, Inc., 252 F.3d 163, 171 (2d Cir. 2001). “A district court ‘abuses’ or ‘exceeds’ the discretion accorded
to it when (1) its decision rests on an error of law (such as application of
the wrong legal principle) or a clearly erroneous factual finding, or (2) its
decision -- though not necessarily the product of a legal error or a clearly
erroneous factual finding -- cannot be located within the range of permissible
decisions.” Id. at 169. We find no abuse of discretion here.
Plaintiffs
contend that the Corps erred by failing to release its draft EA and FONSI for
public comment prior to their issuance.
As they point out, and the District Court correctly found, Council on
Environmental Quality (“CEQ”) regulations[2]
require agencies to “involve the public” in the NEPA review process by noticing
and holding public hearings, soliciting information from the public, and making
the final EA and FONSI publicly available pursuant to the Freedom of
Information Act, 5 U.S.C. § 552. See
40 C.F.R. § 1506.6; see also 40 C.F.R. §§ 1501.4(b), (e)(1) (2001). Corps regulations require the public comment
period to be completed prior to the EA’s issuance. See 33 C.F.R Pt. 325, App. B ¶ 7(a). The District Court failed, however, fully to
analyze the requirement that in “certain limited circumstances, which
the agency may cover in its procedures . . . the agency shall make [a FONSI]
available for public review . . . for 30 days before [it] makes its final
determination whether to prepare an [EIS] . . . .” 40 C.F.R. § 1501.4(e)(2) (emphasis added). These circumstances are when “(i) [t]he
proposed action is, or is closely similar to, one which normally requires the
preparation of an environmental impact statement . . ., or (ii) [t]he nature of
the proposed action is one without precedent.”
Id.
The
Corps’ NEPA implementing procedures, which supplement the CEQ regulations, see
33 C.F.R. § 230.1; 40 C.F.R. §§ 1500.6, 1507.3(a), apply the thirty-day public
comment requirement to draft FONSIs and EAs “in the case of feasibility,
continuing authority, or special planning reports and certain
planning/engineering reports.” 33
C.F.R. § 230.11 (2001). These
procedures go on to state that “[f]or all other Corps project actions, a notice
of availability of the FONSI will be sent to concerned agencies,
organizations, and the interested public.”
Id. (emphasis added); see 40 C.F.R. § 1506.6.
“A
party seeking a preliminary injunction must establish irreparable harm and
either (a) a likelihood of success on the merits or (b) sufficiently serious
questions going to the merits and a balance of hardships tipping decidedly in
its favor.” Kamerling v. Massanari,
295 F.3d 206, 214 (2d Cir. 2002).
Plaintiffs contend that the Corps’ NEPA review in this case is among the
“limited circumstances” to which the thirty-day public comment requirement
applies. We believe they are unlikely
to succeed on this point. Nor are there
sufficiently serious questions on the merits of the issue to make it a fair
ground for litigation. Plaintiffs first
argue that § 230.11 applies because the Corps permit provides for “continuing
authority” over the generating project, as it contemplates Corps monitoring of
mitigation efforts and periodic reports on environmental conditions. However, this section refers not to “continuing
authority projects” or “continuing authority permits” but to “continuing
authority . . . reports.” §
230.11 (emphasis added); see also 33 C.F.R. § 230.13 (discussing
“continuing authority reports” in the EIS context). These reports, agency regulations reveal, are distinct from Corps
decisions on permit applications like the one in this case. “Continuing authority reports” are those
produced under the Corps’ own “Continuing Authorities Program,” an
administrative streamlining mechanism which enables the agency “to plan,
design, and construct certain types of water resource improvements without
specific Congressional authorization.”[3] 33 C.F.R. § 263.10. The planning process for such improvements,
as contemplated by the regulations, centers on three reports: an initial
“Reconaissance (Recon) Report”; a subsequent “feasibility study”; and a final
“Detailed Project Report.” See
33 C.F.R. §§ 263.15, 263.19. These
reports, which may include an EIS or EA, surely are the “continuing authority
reports” referenced in § 230.11.[4] See 33 C.F.R. Pt. 230, App. A ¶
2(a) (2001) (requiring circulation of a draft EA and FONSI to the interested
public under the Continuing Authorities Program).
Further,
the NEPA procedures applicable to Continuing Authority Program studies, which
require the circulation of a draft EIS or EA, explicitly state that they apply
to “Civil Works activities other than permits.” 33 C.F.R. Pt. 230, App. A (emphasis added). The rationale for releasing draft reports
before their issuance for continuing authority studies, as opposed to other
Corps projects, is reflected in the regulations, which state:
Since plans
formulated under [the Continuing Authority Program] are usually smaller in
scope than those specifically authorized by Congress, planners should be
able to more readily identify the affected and interested public early in the
planning process and initiate a public involvement program that can be
continued through plan implementation.
33 C.F.R. § 263.15(e) (emphasis
added). Tellingly, the regulations
require “terminat[ion]” of a feasibility study “if there is a lack of public
support.” 33 C.F.R. § 263.15(c)(2)(iii).
We therefore conclude that the thirty-day public comment requirement
under § 230.11 is inapplicable to the Corps permit issued to AGC in this case.
Referencing
the CEQ regulations, plaintiffs also contend that the Athens generating project
“is or is closely similar to” those actions which normally require an EIS, or
is “without precedent,” thus triggering the thirty-day requirement under 40
C.F.R. § 1501.4(e)(2). But they provide
no explanation as to why this is so, and even fail to specify which of these
mutually incompatible conditions they believe to describe the Athens project.[5] Without any supporting evidence, we see no
reason to assume that either condition has been demonstrated.[6]
Accordingly,
the District Court was correct in declining to issue a preliminary injunction
based on the Corps’ failure to disclose its draft EA and FONSI to
plaintiffs. The judgment is affirmed.
*
The Honorable Sidney H. Stein, United States District Court for the Southern
District of New York, sitting by designation.
[1] The EA is a “concise
public document . . . that serves to”:
(1)
Briefly provide sufficient evidence and analysis for determining whether to
prepare an environmental impact statement or a finding of no significant
impact[;]
(2)
Aid an agency’s compliance with the Act when no environmental impact statement
is necessary[; and]
(3)
Facilitate preparation of a statement when one is necessary.
40 C.F.R. § 1508.9(a)
(2001). It “[s]hall include brief
discussions of the need for the proposal, of alternatives . . ., of the
environmental impacts of the proposed action and alternatives, and a listing of
agencies and persons consulted.” 40
C.F.R. § 1508.9(b); see also 40 C.F.R. § 1501.3(b) (2001) (“Agencies may
prepare an environmental assessment on any action at any time in order to
assist agency planning and decisionmaking.”).
[2] These regulations were
enacted “to tell federal agencies what they must do to comply with the
procedures and achieve the goals of [NEPA].”
40 C.F.R. § 1500.1(a).
[3] Corps regulations list
seven “continuing authorities” that enable the agency to initiate federal
involvement in a project. They include:
(i) the Small Flood Control Project Authority; (ii) authority for snagging and
clearing for flood control; (iii) authority for emergency streambank and
shoreline protection of Public Works and nonprofit public services; (iv) small
navigation project authority; (v) authority for snagging and clearing for
navigation; (vi) small beach erosion control project authority; and (vii)
authority for mitigation of shore damages attributable to navigation
projects. 33 C.F.R. § 263.13 (2001)
(citations omitted).
[4] It is also noteworthy that
Corps regulations define “monitoring” as an “oversight activity” focused on
mitigation measures and other aspects of the Corps’ decision, not a “continuing
authority.” 33 C.F.R. § 230.15.
[5] The entirety of
plaintiffs’ argument on this point is as follows:
In
circumstances such as those presented here, where the proposed action is, or is
closely similar to, one which normally requires preparation of an EIS or where
the nature of the proposed action is without precedent, “the agency shall make
the finding of no significant impact available for public review . . . for 30
days before the agency makes it final determination whether to prepare an
environmental impact statement.”
Br. for Pl.-Appellants at 51-52 (quoting 40 C.F.R. §
1501.4(e)(2)).