ELR Citation: ELR 20738
No(s). 80-2350 (D.D.C. Jul 26, 1983)

The court enjoins the Army Corps of Engineers from authorizing activities under a dredge and fill permit issued for the Hampton Roads oil refinery in Virginia, finding violations of §404 of the Federal Water Pollution Control Act (FWPCA) and the National Environmental Policy Act (NEPA). The court rules that the Corps violated the public hearing requirement of §404 and its regulations. First, it rules that §404 does not require a formal hearing even though §402 of the FWPCA, whose public hearing language is similar to that in §404, requires a formal hearing. However, §404 does require an informal hearing and an opportunity for "meaningful comments." The court finds that since information on reduced East Coast oil transportation costs, which shaped the final Corps decision on the permit, was not included in the record until after the close of the public comment and hearing period, the public was denied an opportunity for meaningful comments in violation of the regulations and §404.

The court also rules that the environmental impact statement (EIS) for the refinery is inadequate. By relying on a post-EIS staff analysis emphasizing the proposed refinery's favorable impact on oil transportation costs, the Corps violated NEPA and its own regulations. The EIS must fully address the costs and benefits of a proposed federal action and must be supplemented if significant new information becomes available. The Corps also violated NEPA by relying on the analysis of alternatives in the staff evaluation, which was significantly different from the analysis in the EIS.

However, the court rejects plaintiffs' claim that the decision to grant the permit was arbitrary and capricious. The administrative record indicates that the Corps adequately considered long term, chronic, and cumulative effects of oil spills. In addition, the Corps did not improperly exclude consideration of certain private economic costs in the cost/benefit analysis. Only publicly borne environmental costs need be considered in the EIS.

Counsel for Plaintiffs
David Burwell
National Wildlife Federation
1412 16th St. NW, Washington DC 20036
(202) 797-6800

Counsel for Defendant
Lawrence R. Liebesman
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2455

Counsel for Defendant-Intervenor
John P. Schnitker
Dow, Lohnes & Albertson
1225 Connecticut Ave. NW, Suite 500, Washington DC 20036
(202) 862-8000