ELR Citation: ELR 20609
No(s). 84-3699 (5th Cir. Apr 29, 1985)

The court holds that an environmental impact statement (EIS) on the renewal of permits for shell dredging in Lousiana waters must be prepared if the environmental assessment (EA) concludes that the dredging "may" significantly degrade the human environment, but that the effect of legally enforceable mitigating measures may be considered in the assessment. The court first holds that the district court was correct in considering the mitigating effects of restrictive conditions contained in the permits, because the conditions are legally enforceable by the Corps of Engineers, and Council on Environmental Quality statements suggesting a contrary conclusion are not controlling authority. The court next holds that a standard of reasonableness—more searching than arbitrary and capricious review—applies to the review of the Corps' decision not to prepare an EIS. The court holds, however, that the Corps has to prepare an EIS if the dredging "may" significantly degrade the human environment overturning the district court's holding that the plaintiffs had to prove that significant degradation "would" occur. Remanding the case to the district court for application of the correct standard, the court notes that the record reveals a number of potentially significant effects, the Corps' revised EA suspiciously minimizes many of the previously predicted impacts, and the district court should compare the effects of continued dredging with the cessation of dredging rather than consider whether the conditions can be returned to their pre-dredging state.

[A related opinion appears at 15 ELR 20141.]

Counsel are listed at 15 ELR 20141.

Before CLARK, Chief Judge, GOLDBERG, and TATE, Circuit Judges.