Coalition for Lower Beaufort County v. Alexander

No. 77-0217 (434 F. Supp. 293, 10 ERC 1814) (D.D.C. May 26, 1977)

ELR Digest

The court dismisses a complaint alleging a violation of the National Environmental Policy Act (NEPA) 42 U.S.C. § 4321 et seq., ELR STAT. & REG. 41009, in the granting of a permit by the Secretary of the Army for dredging and construction of an 850-foot pier at Victoria Bluff, South Carolina, near the Colleton River. The pier will be part of industrial development by the intervenor Chicago Bridge & Iron Company (CBI), which sought the permit, that will improve employment and the economy and spur further development in an area presently characterized by tidal marshes and supporting much wildlife. Plaintiffs, local residents, seek to preserve the ecological integrity and aesthetics of a relatively unspoiled part of the Atlantic coast. CBI has set up a substantial buffer zone around the plant, which concededly will cause no air or water pollution, to help preserve the existing ecology.

Numerous reports were prepared, including draft, final, and supplemental environmental impact statements (EIS), public hearings were held on the project, and the permit was endorsed by the present Army Secretary. The Corps of Engineers carefully evaluated CBI's information and considered all relevant environmental factors at the various decision-making stages. The court holds that plaintiffs have failed to establish procedural irregularities in the consideration of environmental factors prior to granting the permit.

Although the final recommendation went forward from the Corps' District Engineer without consideration of the final supplement to the EIS, there was no significant information in this document, not already in the revised draft supplement, which was considered. This failure was at most a "technical deviation in procedure" given the lengthy processing of the permit which ventilated all pertinent environmental factors and brought them to the attention of the decision makers at all levels. NEPA "was not intended to create a bureaucratic nightmare in which form rather than substance governs." Long-range social and economic repercussions, while likely, are too remote and speculative in impact to be fully considered at this point. Kleppe v. Sierra Club, 427 U.S. 390, n.20, 6 ELR 20532, 20537 n.20 (1976). An alternate site was considered, but it was determined by the Corps to be inappropriate. Finally, comments of other agencies were reviewed. In the process, positions of the Army and other agencies were modified, and there was increasing uniformity as to most environmental issues. "NEPA does not require that all federal agencies be in complete agreement concerning any project." The complaint is dismissed because no violation of NEPA has been shown.

The complaint in this case is digested at ELR PEND. LIT. 65474.

The full text of this opinion is available from ELR (4 pp. $0.50, ELR Order No. C-1141).

Counsel for Plaintiffs
Frederick L. Miller, Jr.
Duncan, Brown, Weinberg & Palmer
1700 Pennsylvania Ave. NW, Suite 77, Washington DC 20006
(202) 296-4325

Counsel for Defendants
Tim E. Sleeth
Department of Justice, Washington DC 20530
(202) 739-2847

Counsel for Intervening Defendant Chicago Bridge & Iron Company
Fred F. Fielding
Morgan, Lewis & Bockius
1800 M St. NW, Washington DC 20036
(202) 872-5000

Charles O. Ziemer, Assoc. General Counsel
Chicago Bridge & Iron Co.
800 Jorie Blvd., Oak Brook IL 60521
(312) 654-7000

Gesell, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]