ELR Citation: ELR 20998
No(s). s. 85-6297, 6299 (2d Cir. Sep 11, 1985)

The court rules that the Corps of Engineers' Final Supplemental Environmental Impact Statement (FSEIS) for the Westway highway project was inadequate, that its issuance of a landfill permit for the project was arbitrary and capricious, and that the district court abused its discretion in conducting de novo review and permanently enjoining the project. The Corps, in conjunction with the Federal Highway Administration, had prepared a Draft Supplemental Environmental Impact Statement (DSEIS) that concluded that the proposed Westway project landfill would cause significant damage to the habitat of the striped bass and would result in lower population levels. In its FSEIS, however, the Corps concluded that this population decline would have only "minor impacts" on the fishery. The court first holds that the district court improperly conducted de novo review in assessing the Corps' action. The Administrative Procedure Act permits de novo review only where there have been inadequate factfinding procedures in an adjudicatory proceeding or where judicial proceedings are brought to enforce administrative actions. Neither of these situations is present. However, the action of the district court is not reversible error because the FSEIS does not satisfy either the National Environmental Policy Act (NEPA) or the Federal Water Pollution Control Act (FWPCA). In a prior decision in this case the Corps had been ordered to keep records of all communications in connection with the Westway project. The Corps violated this judicial order, which has resulted in ineffective judicial review and caused the Corps to lose substantial credibility. Second, by issuing a permit in spite of the adverse impacts on the fishery discussed in the DSEIS, the Corps clearly violated the FWPCA. The FWPCA requires evidence that the proposed project will not likely result in harm to fisheries. There is no explanation in the FSEIS for the change in analysis. The lack of explanation also violates the mandate of NEPA that environmental consequences be included in the decisionmaking process.

The court also rules that the district court improperly substituted its judgment for that of the agency in rejecting the testimony of the Corps' expert witness and accepting testimony from other witnesses, and in taking upon itself to reevaluate the merits of scientific evidence on the fisheries issue.

Turning to other issues, the court rules that the Corps' consideration of the views of other federal agencies was adequate. The Corps solicited the agencies' viewpoints and encouraged their participation in the permit process. There is no requirement that the Corps agree with the views expressed. The court then rules that the FSEIS sufficiently discussed reasonable alternatives to the Westway project even though no alternatives specifically discussed other redevelopment proposals. NEPA does not require exhaustive detail, and there has been sufficient publicity surrounding the project to inform the public about alternatives. The court rules that issuance of a permanent injunction by the district court was improper, and remands the case for appropriate action.

A partial dissent would part ways with the majority on where the district judge conducted de novo review, arguing that the lower court's searching examination of fishery impact data was necessary to determine the Corps' compliance with NEPA's procedural strictures.

[Earlier decisions in this case are reported at 12 ELR 20519, 12 ELR 20533, 13 ELR 20170, 13 ELR 20326, 13 ELR 20347, 14 ELR 20356, and 15 ELR 20070.]

Counsel for Appellants
Howard Wilson, Ass't U.S. Attorney
One St. Andrews Plaza, New York NY 10007
(212) 791-0055

Counsel for Appellees
Paul J. Curran
Kaye, Scholer, Fierman, Hays & Handler
425 Park Ave., New York NY 10022
(212) 407-8000

Before Mansfield and Pratt, JJ