ELR Citation: ELR 20329
No(s). 72-2874 (5th Cir. Apr 19, 1974)

The Fifth Circuit Court of Appeals upholds a lower court ruling that full NEPA compliance has occurred with respect to the Tennessee-Tombigbee Waterway project, and affirms the dissolution of a preliminary injunction. After an initial ruling that plaintiffs must establish their claims of procedural NEPA violations by a preponderance of the evidence rather than by a prima facie showing as in Sierra Club v. Froehlke, 3 ELR 20248 (S.D. Tex. 1973), the court holds that the Corps of Engineers adequately considered all appropriate alternatives to the waterway project, and that the environmental impact statement is sufficiently detailed within the meaning of §102(2)(C). The Corps performed its statutory task of evaluating and considering the project's environmental effects with good-faith objectivity, and the EIS thus does not constitute a post hoc rationalization. Section 102(2)(B) of the Act does not require the Corps to develop any general or specific quantification process for presently unquantified environmental values, and the agency's good-faith weighing of ecological factors on a peer basis with technical and economic factors in reaching its ultimate approval of the project represents satisfactory compliance with that section. Substantive agency decisions under NEPA regarding ecological impacts are subject to limited judicial review under the Administrative Procedure Act (APA). The district court's refusal to allow plaintiffs to present evidence challenging such decisions in this case is not grounds for reversal however, since the APA applies only to administrative agency action, and Congress, after considering the EIS, resolved the substantive ecological-economic questions surrounding the project and made the final decision by appropriating funds for the waterway's construction.

For the district court's opinion, see 2 ELR 20536; for an earlier opinion issuing the preliminary injunction, see 1 ELR 20466.

Counsel for Plaintiffs
Richard S. Arnold
Arnold, Arnold & Lavender
P.O. Box 1938
Texarkana, AR 75501

Jon T. Brown
Duncan, Brown & Palmer
1700 Pennsylvania Avenue, NW
Washington, DC 20006

Counsel for Defendants
Irwin Goldbloom
A. Theodore Giattina
Morton Hollander
Department of Justice
Washington, DC 20530

H.M. Ray U.S. Attorney
P.O. Box 191
Oxford, MS 38655

Counsel for Intervenor Tennessee-Tombigbee Waterway Development Authority
Hunter M. Gholson
518 Second Avenue, North
Columbus, MS 39701

John H. Gullett
1250 Connecticut Avenue, NW
Washington, DC 20036

Counsel for Intervenor Tombigbee River Valley Water Management District
Fred M. Bush, Jr.
P.O. Box 446
Tupelo, MS 38801