ELR Citation: ELR 20731
No(s). 73-2745 (5th Cir. Aug 26, 1974)

The Fifth Circuit Court of Appeals reverses and remands a lower court's decision (sub nom. Sierra Club v. Froehlke) enjoining the Corps of Engineers from constructing the Trinity River Project and from continuing construction of the Wallisville Dam Project in Texas. The district court erred in holding that the Wallisville and Trinity River Projects are interdependent for the purposes of NEPA, and that the environmental impact statement for the Wallisville Dam must therefore also evaluate the much larger Trinity Project. The former, which is now 72 percent complete, is not a mere component of the latter, upon which work has not yet begun, but a separate and viable entity which must be examined on its own merits. The district court also erred in ordering the Corps of Engineers to develop new guidelines to supplement those promulgated by CEQ for the implementation of NEPA, and in applying an inappropriate burden of proof in reviewing the EIS. On remand, plaintiffs will have the burden of establishing their claims by a preponderance of the evidence. The lower court erred in ruling that once plaintiffs made a prima facie showing of non-compliance by the Corps, the burden of persuasion shifted to the Corps to show the adequacy of its environmental assessment by a preponderance of the evidence.

The circuit court finds that the Wallisville Project EIS is inadequate because of insufficient disclosure and evaluation, but rules that a new EIS need not be prepared since a revised or supplemental statement, if judged adequate under the good-faith objectivity test, will remedy the defect. Nor must the revised EIS be passed upon by Congress, CEQ, or other federal agencies since NEPA does not require congressional or agency reauthorization of an agency's attempt to comply with the Act in preparing an impact statement. The injunction as to each project will continue in force pending a determination of the sufficiency of the respective EIS. For the district court's opinion, see 3 ELR 20248.

Counsel are listed at 3 ELR 20248.