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Sierra Club v. Froehlke

decided: October 2, 1973.

SIERRA CLUB ET AL., PLAINTIFFS-APPELLANTS,
v.
ROBERT F. FROEHLKE, SECRETARY OF THE ARMY, ET AL., DEFENDANTS-APPELLEES, AND MILAND AND DORIS SLAYBACK ET AL., INTERVENORS-APPELLEES



Before Cummings, Circuit Judge, Grant,*fn* Senior District Judge, and Gordon,*fn** District Judge.

Author: Grant

The primary issue raised by this appeal is whether an environmental impact statement prepared by the Corps of Engineers concerning a flood control dam project on the Kickapoo River, Wisconsin, complied with the mandates of the National Environmental Policy Act of 1969 (hereinafter NEPA).*fn1 A secondary question is whether the failure of the Corps of Engineers to request and obtain local assurances of participation from two downstream communities voided the project. The district court answered the former question in the affirmative and the latter in the negative. We affirm.

In 1962 Congress authorized*fn2 the construction of a flood control dam on the Kickapoo River, a free-flowing river with a history of annual destructive floods, located in the southwestern section of Wisconsin. The final design for the dam specified a height of 103 feet with an over-all length of 3,960 feet. The dam would create a reservoir covering 1,780 acres and result in the inundation of approximately 12 miles of the river between the communities of LaFarge and Ontario. This section of the river is popular with canoeists and noted for its picturesque bluffs and sandstone ledges containing rare floral plants. The project also involved supplemental flood protection levees at two small downstream communities, for which both communities were required to make cost-sharing commitments.

The Corps had initially prepared a draft environmental impact statement in November of 1970. After publication of the statement and review by state and local agencies, environmental groups, etc., a final environmental impact statement was prepared and forwarded to the Council on Environmental Quality on April 18, 1972. As correctly noted by the Court below, the statement

Sierra Club v. Froehlke, 345 F.Supp. 440, 443 (W.D.Wis.1972).

Plaintiffs filed suit in the district court with four counts of their complaint alleging, in effect, that the Corps' environmental impact statement was inadequate in violation of § 102 of the National Environmental Policy Act and, therefore, that continuation of the project was enjoinable under the Administrative Procedure Act. A fifth claim alleged that the project was enjoinable under the Administrative Procedure Act because the requests for local assurances of participation on the project had not been made and received as required by law. Plaintiffs filed a motion for a preliminary injunction with supporting affidavits and legal memoranda. Defendants and intervenors filed counter-affidavits and memoranda of law. The motion was denied by the trial court on 2 June 1972. Ibid. Defendants and intervenors then filed a motion for summary judgment which was granted by the court on 24 July 1972, the court finding that the "environmental statement provided adequate notice to all concerned persons, agencies, and organizations, of the probable environmental consequences of the proposed project." App. at 50a.

Plaintiffs argue that the statement is inadequate in that the Corps failed to consider useful existing studies, misstated water quality problems, failed to conduct vegetation studies with particular reference to the unique flora of the river's cliffs which would be inundated by the dam-lake, overstated the beneficial effects of the project, understated the detrimental effects and failed to give proper consideration to available alternatives. Plaintiffs further argue that the district court utilized the wrong test or standard in determining the sufficiency of the statement. They contend that the court's "notice of problems" test is improper.

The Corps argues that the impact statement objectively meets the requirements of NEPA noting that the statement treats the five specific subject areas set forth in § 4332(2)(C), NEPA.*fn3 They contend that plaintiffs' real point is that the agency decision-makers did not accord some factors the weight which plaintiffs would assign them. In response to plaintiffs' contention that the statement demonstrates bias and partiality by the Corps rather than objectivity, the Corps argues that it "is obviously not required to give the same weight to plaintiffs' concern as plaintiffs do," Hanly v. Mitchell, 460 F.2d 640, 648 (2nd Cir. 1972), cert. denied, 409 U.S. 990, 93 S. Ct. 313, 34 L. Ed. 2d 256, and that some bias is even to be expected, citing Environmental Defense Fund v. Corps of Eng., U.S. Army, 470 F.2d 289 (8th Cir. 1972), cert. denied, 412 U.S. 931, 93 S. Ct. 2749, 37 L. Ed. 2d 160 (1973). The Eighth Circuit Court of Appeals stated in that case as follows:

The court concluded that "[The] test of compliance with § 102, then, is one of good faith objectivity rather than subjective impartiality." Id. at 296.

Federal agencies are required to demonstrate objectivity in the treatment and consideration of the environmental consequences of a particular project, Environmental Defense Fund, supra, 470 F.2d at 295; Environmental Defense Fund v. Corps of Eng., U.S. Army, 348 F.Supp. 916, 927 (N.D.Miss. 1972). The detailed statement of the environmental consequences required by § 102 "must be sufficiently detailed to allow a responsible executive to arrive at a reasonably accurate decision regarding the environmental benefits and detriments to be expected from program implementation." Environmental Defense Fund v. Hardin, 325 F.Supp. 1401, 1403-1404 (D.D.C.1971). Stated slightly differently, the statement must provide "a record upon which a decisionmaker could arrive at an informed decision." Environmental Defense Fund v. Corps of Eng., U.S. Army, 342 F.Supp. 1211, 1217 (E.D.Ark.1972), aff'd (8th Cir.), 470 F.2d 289.

In the instant case, plaintiffs argue that Judge Doyle's finding "that the agency at least recognizes and puts interested persons on notice of problems which exist in these areas [of siltation, water quality, vegetation and identification and discussion of alternatives]," 345 F.Supp. at 444, constitutes a "notice of problems" test which is less demanding than a requirement that the environmental impact statement "be a record upon which a decision-maker could arrive at an informed decision." 342 F.Supp. at 1217. If this were the only finding made by the district court, we might be inclined to agree with plaintiffs' argument. However, the court also found that plaintiffs had not shown a sufficient probability of success on the merits as to their "contention that the statement in its present form does not constitute 'full disclosure"' of the environmental consequences of the project "as required by NEPA." 345 F.Supp. at 444. The court also concluded that plaintiffs had "failed to show a sufficient chance of success on the merits of a contention that the present statement is not a record upon which a decisionmaker could make an informed decision." Id. at 445. These contentions were later decided adversely to the plaintiffs upon the basis of the entire record. App. at 50a. With reference to plaintiffs' contention that the Corps failed to conduct certain studies in addition to those which were conducted, the district court correctly noted that NEPA

does not require that every conceivable study be performed and that each problem be documented from every angle to explore its every potential for good or ill. Rather, what is required is that officials and agencies take a "hard look" at environmental consequences. Id. at 444.

Or as observed in Environmental Defense Fund, supra, 342 F.Supp. at 1217:

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 ...


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