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River Road Alliance Inc. v. Corps of Engineers of United States Army

May 17, 1985


Appeals from the United States District Court for the Southern District of Illinois, Alton Division. Nos. 82 C 5285, 83 C 5071, William L. Beatty, Judge.

Wood, Eschbach, and Posner, Circuit Judges.

Author: Posner

POSNER, Circuit Judge.

We must decide whether, as the district court held, the Army Corps of Engineers violated section 102 of the National Environmental Policy Act of 1969, 42 U.S.C. § 4332, by granting a permit to National Marine Service Inc. for a temporary barge fleeting facility on the Mississippi River without having adequately considered the environmental consequences.

In 1980 National Marine Service (actually its predecessor, but we shall simplify the facts to shorten our opinion) applied to the Corps of Engineers for a permit under section 10 of the River and Harbors Appropriation Act of 1899, 33 U.S.C. § 403, for a barge fleeting facility on the Illinois bank of the Mississippi, just below the town of Grafton. A fleeting facility is a maritime parking lot--a place where barges are either anchored or moored to buoys while waiting to be towed. The facility was to have a capacity of 30 barges and to occupy 1,500 feet (and cover an area of five acres of water) of a seven-mile scenic stretch along what is called "Alton Lake" or "Alton Pool," but is actually a part of the Mississippi River. The State of Illinois, an appellee, acknowledges that Alton Lake "undergoes heavy barge traffic"; as many as 300 barges pass through it in a day. But the stores of the scenic portion are free from commercial development, except that National Marine Service has a shipyard, with until recently a fleeting facility attached, a half mile north of the proposed site. National Marine Service had leased that fleeting facility from the Illinois Department of Transportation, which cancelled the lease during this lawsuit.

The Illinois shore of Alton Lake is surmounted by dramatic bluffs; the Missouri shore is farm land. A scenic highway, the Great River Road, runs along the Illinois shore beneath the bluffs, and motorists have a view of Alton Lake and the Missouri shore beyond as well as of the bluffs to their east. (See Figure 1 at end of opinion.) National Marine Service's desire for the proposed fleeting facility was due in part to congestion at one of the locks of the Mississippi River. The lock is to be replaced (originally this was to be in 1987, but the current estimate is 1988), and the facility discontinued when that happens.

After holding a public hearing on the environmental impact of the proposed facility, the Corps of Engineers issued an "environmental assessment" which concluded that the facility would have no significant environmental impact. Concerning the facility's aesthetic impact, the Corps, while acknowledging that "bluff and river areas at and downstream of applicant's worksite clearly provide some of the most impressive and unique vistas of any area along the Mississippi River" and that "in the opinion of some individuals, the presence of [National Marine]'s proposed fleeting facility, or any similar intrusion into the natural setting, would be aesthetically objectionable," noted that "other individuals welcome the opportunity afforded by the Great River Road for a close-up view of towboats and barges. In addition to the static visual effect of moored barge fleets, a fleeting operation also presents a view of normal activities on the waterway as small push boats work to move barges in and out of fleets during the disassembly and assembly of large tows. In any event, the aesthetic impairment, or enhancement, should be minimal since [National Marine]'s fleet will be limited to the length of six barges. If a motorist were proceeding along Great River road at a rate of 40 miles per hour, a fleet six barges long would obstruct his view of the river for less than 25 seconds."

Among other issues addressed in the environmental assessment was the possible impact of the proposed fleeting facility on a very large mussel bed downstream. There was concern that while the barges were being toward into and out of the facility, and assembled into tows or disassembled, the propellors of the tug boats would stir up silt on the river bottom, and this silt would drift down onto the mussels and smother them. The environmental assessment (as fleshed out by later documents prepared by the Corps) noted that none of the mussels were members of any endangered species, but it directed that the mussel beds be inspected again after the facility had been in operation for two years. Later in the administrative process, concern was expressed that the facility might hurt wintering catfish. There was also concern that no fishing of any kind would be possible along the stretch of shoreline that the facility would occupy, and that boating and other sports might also be harmed. The Corps did not think any of these consequences would be serious, nor that two historic towns, respectively 1.5 and 4.0 miles downstream from and out of sight of the facility, would be harmed.

The National Environmental Policy Act requires a federal agency to "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." 42 U.S.C. § 4332(2)(C). Since the Corps found that the proposed barge fleeting facility would have no significant effect on the environment, it did not think it had to prepare the detailed environmental impact statement envisaged by section 4332(2)(C)(i); and if its premise was correct, so was its conclusion. See 40 C.F.R. §§ 1501.4(e), 1508.13 (regulations of Council on Environmental Quality). Since the proposed facility met the Corps' own cost-benefit criteria, see 33 C.F.R. § 320.4(a)(1), the Corps issued a permit for the facility, to expire however when the lock is replaced.

The facility went into operation in 1982. It operated at 30-40 percent capacity (9 to 12 barges) during the summer, the peak tourist season. A neighborhood group, and later the State of Illinois, brought this suit to enjoin it; the injunction was granted; and in 1984 the facility was shut down pending the outcome of this appeal. In granting the injunction the district judge issued an opinion that the plaintiffs had prepared for his signature. The main conclusion in the opinion is that the Corps of Engineers did not take a careful enough look at the environmental impact of the fleeting facility. The usual consequence of such a decision is an order to prepare an environmental impact statement. Although the district judge did not order the Corps to do so, and indeed expressly declined to decide whether the Corps had to do so, we find it hard to see how the Corps could have met his objections to the adequacy of its environmental assessment without doing so. The parties indicate implicit agreement with this point by relying for the most part on cases in which the question was whether an environmental impact sentence had to be filed. We can therefore promote clarity by recasting the main issue on appeal as whether the Corps should have prepared an environmental impact statement. If we are right that the Corps did not violate section 102's requirement of such a statement for all major federal actions having a significant environmental impact, or the section's separate requirement of consideration of alternatives to the proposed action, the plaintiffs' reservations about the adequacy of the environmental assessment and of related documents that the Corps did prepare would not warrant our upholding the district court's decision and returning the case to the Corps to prepare a somewhat more elaborate environmental assessment that would still fall short of being a full-fledged environmental impact statement.

Although the statute does not indicate how lengthy or detailed an environmental impact statement must be, and the required length and detail will of course vary with the nature of the proposed action whose impact is being studied, the implementing regulations require a formidable document. It will often be multi-volume and cost the government and the private applicant (if there is one, as there is here) hundreds of thousands of dollars to prepare; $250,000 is the estimate in this case. See 33 C.F.R. § 230.11; 33 C.F.R. Part 230, App. B, paras. 3, 10-11. An environmental impact sentence consisting of 858 pages plus two appendix volumes is mentioned in National Environmental Policy Act Oversight, Hearings Before Subcomm. on Fisheries, Etc., of H. Comm. on Merchant Marine and Fisheries, 94th Cong., 1st Sess., ser. 94-14, at 172 (G.P.O. 1975). If such a statement were required for every proposed federal action that might affect the environment, federal governmental activity and the private activity dependent on it would pretty much grind to a halt. The Corps of Engineers alone receives more than 14,000 permit applications a year. Applying for a routine permit would often be economically infeasible if an environmental impact statement were always required. So it is no surpise that the statute does not require such a statement for every federal action having some environmental impact. The action must be "major," and the impact "significant." The Corps filed only 119 environmental impact statements in 1983. Council on Environmental Quality, Environmental Quality 1983, at 333 (1983) (tab. A-81).

The purpose of an environmental assessment is to determine whether there is enough likelihood of significant environmental consequences to justify the time and expense of preparing an environmental impact statement. See also 33 C.F.R. § 230.10. The environmental assessment is a brief document, see 40 C.F.R. § 1508.9, which under the Corps of Engineers' regulations is normally not to exceed 15 pages, see 33 C.F.R. § 230.9, and which here was only 4 pages long but was supplemented by 17 pages of additional findings. The statutory concept of "significant" impact has no determinate meaning, and to interpret it sensibly in particular cases requires a comparison that is also a prediction: whether the time and expense of preparing an environmental impact statement are commensurate with the likely benefits from a more searching evaluation than an environmental assessment provides. The nature of the required judgment explains why we have held that an agency's decision not to prepare an environmental impact statement will be set aside only if it is an abuse of discretion. E.g., Wisconsin v. Weinberger, 745 F.2d 412, 417 (7th Cir. 1984).

Although other courts have adopted what they conceive to be the higher standard of "reasonableness," id. at 417 n. 5; Township of Lower Alloways Creek v. Public Service Elec. & Gas Co., 687 F.2d 732, 742 (3d Cir. 1982), we are not sure how much if any practical difference there is between "abuse of discretion" and "unreasonable." Courts dissatisfied with the "abuse of discretion" formulation are concerned that an agency whose primary mission is not the protection of the environment--an agency such as the Corps of Engineers--may tend to slight environmental concerns in deciding whether to encumber its decision-making process with an environmental impact statement. See the criticisms of the Corps in Sierra Club v. Corps of Engineers, 701 F.2d 1011, 1032-33 (2d Cir. 1983); Sierra Club v. Sigler, 695 F.2d 957, 962-63 n. 3 (5th Cir. 1983), and Manatee County v. Gorsuch, 554 F. Supp. 778, 783-96 (M.D. Fla. 1982)--but for a far more favorable view of the Corps see Andrews, Agency Responses to NEPA: A Comparison and Implications, 16 Natural Resources J. 301, 318 (1976). Such a tendency is bound to make the courts more alert for abuses of discretion than they might otherwise be. But realism about the danger of abuse does not require a change in the standard of judicial review. There is plenary review and there is deferential review, and whether it is fruitful to attempt fine gradations within the second category may be doubted, though there is no need to resolve our doubt here.

However the standard of review is worded, it is clear that the issue for us is not whether National Marine Service's barge fleeting facility was (and will again be, if we reverse) an unfortunate eyesore, marring one of the few remaining spots of essentially unspoiled natural beauty on the Mississippi River in the general vicinity of St. Louis; undoubtedly it is that (see Figure 2 at the end of opinion). It is not whether we, if we were the Army Corps of Engineers, would have denied the permit. It is whether the Corps exceeded the bounds of its decision-making authority in concluding that the fleeting facility would not have so significant an impact on the environment as to require a more elaborate study of environmental consequences.

In so stating the issue, we assume either that the Corps' action in granting the permit was "major" or that "major" adds nothing to "significant." Although the criteria have been treated as distinct in this circuit, see, e.g., Assure Competitive Transportation, Inc. v. United States, 635 F.2d 1301, 1308-09 (7th Cir. 1980), no court has embraced the peculiar suggestion (rejected in Minnesota Public Interest Research Group v. Butz, 498 F.2d 1314, 1321-22 (8th Cir. 1974) (en banc)) that an action that might have a grievous impact on the environment would not require the preparation of an environmental impact statement if the action was in some sense minor. Indeed, the "minor" action (implying few benefits) that may cause major environmental harms is a prime candidate for requiring such a statement; if the cost of preparing such a statement deters the action, there is little lost, ...

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