ELR Citation: ELR 20518
No(s). s. 84-1689, -2045 (7th Cir. May 17, 1985)

The court holds that the Corps of Engineers did not abuse its discretion in concluding that a temporary barge fleeting facility on the Illinois bank of the Mississippi River would not have a significant impact on the environment requiring preparation of an environmental impact statement (EIS). The court recasts the issue from the adequacy of the environmental assessment (EA) to the need for an EIS. The court notes that while the Seventh Circuit has considered whether an agency action was "major" separately from whether its impacts were "significant" in National Environmental Policy Act (NEPA) cases, it makes more sense to require an EIS whenever the impact of an action of any magnitude is significant. For the purposes of this case, the court assumes the issuance of the temporary permit was a major action. The court also observes a trend toward imposing a higher threshold for requiring EIS preparation. This higher threshold is justified by the fact that EIS preparation consumes substantial agency resources that could be better spent analyzing the more environmentally damaging actions, by the heightened environmental sensitivity of federal agencies, and most importantly, by the increased thoroughness of EAs.

Turning to the case at hand, the court holds that the aesthetic impact of the fleeting facility cannot, by itself, compel an EIS. In most cases, aesthetic impacts are too subjective and immeasurable to weigh heavily in the NEPA calculus. The other environmental effects, including decreased recreational utility, potential harm to mussel beds and catfish, and cumulative impacts, are trivial. Finally, the Corps was not required to conduct a study of alternative sites beyond that performed by the permittee since plaintiffs did not show that plausible alternative sites had been overlooked.

A dissent views the issue in terms of the adequacy of the EA, not whether the Corps should have prepared an EIS, and would hold that the Corps failed to take the required "hard look" in the EA. The dissent expresses concern over just how "temporary" the facility will be and believes that the environmental impact is not nearly so trivial as the court finds. Also, the Corps should not be entitled to accept the permittee's view of alternative sites and place the burden on plaintiffs to suggest other sites.

Counsel for Appellants
James L. Morgan, Ass't Attorney General
30 E. Broad St., 17th Floor, Columbus OH 43215
(614) 466-3376

Ann Rapkin, Fred J. Hess, Bruce E. Kepper
Room 414, U.S. Court & Custom House
1114 Market St., St. Louis MO 63101
(314) 425-5280

Counsel for Appellees
Lewis C. Green
Green, Hennings & Henry
Suite 1830, Marquette Bldg., 314 N. Broadway, St. Louis MO 63102
(314) 231-4181

Burton C. Bernard
Bernard & Davidson
360 Nameoki Rd., Granite City IL 62040
(618) 452-6100

Counsel for Intervenors
Andrew Rothschild
Lewis & Rice
14th Floor, 611 Olive St., St. Louis MO 63101
(314) 444-7600

Before WOOD, ESCHBACH, and POSNER, Circuit Judges.