ELR Citation: ELR 20157
No(s). C-70-349 (W.D. Tenn. Dec 28, 1972)

A Corps of Engineers stream channelization project is halted pending compliance with §§102(2)(A), (B), (C), and (D) of NEPA. Before arriving at a cost-benefit ratio, the interdisciplinary approach of §102(2)(A) requires consultation with agencies having jurisdiction over areas affected by a project, including here the Department of Agriculture, the Tennessee Highway Department, and the Tennessee Planning Commission. "Specific" inquiries must be made by the Corps with respect to project-related costs, including maintenance and loss of resources. Under §102(2)(B), consideration of presently unquantified environmental amenities requires objective, in-depth studies of reasonable opportunity losses, as well as effects on flyways, waterfowl production and water quality. The assumption that the Corps could ignore lost opportunities for hiking and bird watching because most of the land was privately owned was not reasonable. Furthermore, §102(2)(B)'s mandate to consult with CEQ does not require the Corps to consult with CEQ on each project if general methods for quantifying environmental amenities are identified and developed. In order to comply with both §102(2)(C)(iii) and §102(2)(D) the discussion of alternatives must include all those put forward by respectable opinion. Moreover, the alternative of deferring work until land for a Mitigation Plan is acquired must be included, since the Corps recognizes that it will be practically impossible to acquire suitable land after work is completed. In addition, the impact statement must otherwise comply with the standards set out in Environmental Defense Fund, Inc. v. Froehlke, 2 ELR 20620. The court does not reach the substantive question of whether the decision to proceed was correct. However, it does reiterate that substantive review would be narrow, and that an arbitrary and capricious finding would be rate where NEPA's rigorous procedural requirements have been met.

Counsel for Plaintiffs
John H. Warfield
Warfield, Entrekin and Jones
19th Floor, Third National Bank Building
Nashville, Tennessee 37219

Counsel for Defendants
Lurton Goodpasture
Goodpasture, Carpenter, Woods and Sasser
6th Floor, American Trust Building
Nashville, Tennessee 37201