ELR Citation: ELR 21070
No(s). 84-2592 (5th Cir. Oct 7, 1985)

The court holds that the Corps of Engineers did not perform an adequate analysis of the cumulative impacts that may flow from a home development project on Galveston Island, Texas, but that it is too early to determine whether an environmental impact statement (EIS) regarding development of the site should be prepared under the National Environmental Policy Act (NEPA). The court first clarifies that it should apply a reasonableness standard in reviewing an agency's decision not to prepare an EIS. The decision may be unreasonable because the evidence demonstrates the project may have a significant impact or the agency's review was flawed so that the project's significance cannot be judged. The first case calls for an EIS; the second calls for remand to correct the environmental assessment (EA). The court reviews the factual findings under the clearly erroneous standard because the summary judgment motion below was actually a trial on a stipulated record. The court holds that the Corps did not adequately consider the potential for significant cumulative impacts on the island and surrounding area in its EA. Turning to the merits, the court notes that the CEQ regulations require broader consideration of cumulative impacts for EAs than for EISs. The court then reads the district court's opinion to have held that the Corps did not adequately consider the potential for significant cumulative effects, but not necessarily to have held that the cumulative effects would be significant. Neither lack of information about cumulative effects or lack of both an overall development plan and interdependence of development projects justify a failure to consider cumulative impacts. The court holds that a proper consideration of cumulative impacts should identify the area affected, impacts from the present proposal, other past and foreseeable proposals, impacts from such other proposals, and the overall impact. The record shows no such study here. A trial affidavit declaring that the project has independent utility and is unrelated to other developments was a post-hoc rationalization and reflects too narrow a focus. The court notes that the analysis of impacts in an EA need not be extensive. The court upholds the district court's finding that the present project is sufficiently related to other past and foreseeable developments and holds that this finding requires the Corps to take a hard look at cumulative impacts.

The court next holds that, because the Corps' analysis of cumulative impacts is so incomplete, it is not possible to determine here whether the project actually may have cumulative impacts, and the district court incorrectly ordered the Corps to prepare an EIS. The order would require the EIS to cover projects that are not yet actual proposals, contrary to established case law. Since the record is incomplete, it is not clear that the Corps' decision not to prepare a comprehensive EIS was arbitrary and capricious. Moreover, aside from the question of whether a comprehensive EIS is appropriate in these circumstances, the district court did not make findings necessary to support an order to prepare an EIS at all, since it did not find that the project may have significant impacts. The court concludes, however, that although the district court ordered inappropriate relief, it did correctly assess the deficiencies in the Corps' analysis. For this reason, it remands the case to the Corps directly for the impacts identified by the district court to be considered, although not necessarily in an EIS. The portion of the district court's injunction prohibiting the Corps from granting permits for similar projects in other areas of the island is vacated.

[The lower court opinion appears at 14 ELR 20266.]

Counsel for Defendants-Appellants
Daniel K. Hedges, U.S. Attorney
P.O. Box 61129, Houston TX 77208
(713) 229-2600

David C. Shilton
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5580

Counsel for Plaintiffs-Appellees
Robert M. Moore, Wesley C. Johnson
7511 Broadway St., Galveston TX 77551
(409) 740-0224

Before RANDALL, DAVIS, and HILL, Circuit Judges.