ELR Citation: ELR 20828
No(s). 83-6126 (E.D. La. Apr 23, 1986)

The court holds that the Corps of Engineers must prepare an environmental impact statement (EIS) for the renewal of shell dredging permits in two areas of southern Louisiana, but refuses to enjoin the dredging, while the EIS is prepared. The court's prior decision in this case, 15 ELR 20141, upholding the Corps' decision not to prepare an EIS, was vacated and remanded by the Fifth Circuit, 15 ELR 20609, on the grounds that the district court had improperly required plaintiffs to prove that a significant degradation of the environment "would," rather than "may," result before the Corps' decision could be found unreasonable. The court notes that it may properly consider the mitigating effects of restrictive conditions in the permits in reviewing the Corps' decision not to prepare an EIS. Further, it must scrutinize the differences in the Corps' 1982 and 1984 environmental assessments (EAs) and may not consider the degraded environmental status of the Louisiana waters in evaluating the significance of the dredging, but must compare the projected ecological status of the affected areas if the dredging is continued for another five years with their projected condition if dredging is halted now. The court holds that the 1984 EAs prepared by the Corps after plaintiffs had filed their initial suit were post-hoc rationalizations of the environmental impacts identified in the 1982 EAs and thus cannot withstand scrutiny. Even considering the 1984 EAs in isolation, the court holds that the Corps unreasonably concluded that there was no reasonable possibility that the dredging would significantly degrade the environment.

The court orders the Corps to prepare an EIS, but refuses to enjoin the dredging while the EIS is being prepared. The court notes that there is no automatic right to injunctive relief when a NEPA violation is shown; plaintiffs must still meet the traditional test for an injunction. Applying this test, the court holds that plaintiffs have succeeded on the merits and have no adequate remedy at law. The court holds, however, that plaintiffs have failed to show that the threatened environmental damage that would result if the injunction is denied outweighs the harm to defendants if the injunction is granted. If defendant companies were forced to suspend operations while the EIS is prepared, the shell dredging industry along with its beneficial economic effects would be eliminated from Louisiana. To provide the Corps with an incentive to promptly prepare an EIS, the court prohibits the Corps from renewing or extending the permits when they expire on December 31, 1987, unless the EIS has been completed.

Counsel for Plaintiffs
Nicholas C. Yost
Dickstein, Shapiro & Morin
2101 L St. NW, Washington DC 20037
(202) 785-9700

Counsel for Defendants
John Volz, U.S. Attorney
Hale Boggs Federal Bldg., 500 Camp St., New Orleans LA 70130
(504) 589-2921