ELR Citation: ELR 20911
No(s). 85-1098 (1st Cir. Aug 9, 1985)

The court rules that under the National Environmental Policy Act (NEPA), the Corps of Engineers and the Federal Highway Administration incorrectly ignored secondary effects from planned industrial development in deciding not to prepare an environmental impact statement (EIS) on a proposed cargo port and causeway at Sears Island, Maine. The court first addresses the issue of what standard to apply in reviewing the district court's upholding of the agency decision. The district court should have overturned the decision not to prepare an EIS if it found a substantial possibility that the agency action could significantly affect the quality of the human environment. The district court judgment turned almost entirely on review of the administrative record, and not on independent factfinding. The court holds that it may exercise considerable independence in its own review of the administrative record.

The project, granted requisite permits and funding after agency adoption of findings of no significant impact (FONSIs) based on the environmental assessments (EAs), includes plans for a 1,200-foot solid-fill causeway connecting Sears Island to the mainland, a dry-cargo marine terminal, and an industrial part adjacent to the cargo port. Despite the complexity and length of the seven EAs issued by various agencies for the project, the court refuses to regard them as substitutes for an EIS since they do not serve the same purpose. Also, the court declares that it is not reviewing the ultimate decision to proceed with the project, but only the lawfulness of the agencies' findings that the project will have no significant impact on the environment. After evaluating EAs based on the likely environmental effects of building the causeway and port, the court finds that whether their environmental effects are significant is arguable. However, these effects become significant when combined with the agencies' failure to adequately consider the potential secondary impacts of projected industrial development of Sears Island after construction of the cargo port and causeway. The court offers three reasons why the agencies should have taken into account these secondary impacts before issuing the FONSI. First, further industrial development of Sears Island is an almost certain consequence of constructing the causeway and port. Second, development plans are precise enough to be usefully considered as factors in an EIS. Third, after completion of the causeway and port, pressure to develop the rest of the Island could prove irreversible. The court holds that these secondary impacts are significant. The court dismisses as irrelevant or conclusory agency arguments that secondary impacts could be mitigated, that industrial development could economically benefit the community, that existing land use regulations would prevent complete devastation of the island, that adequate habitat elsewhere in the area would diminish the impact of the development, and that the development would cause no serious air or water pollution. Thus, given the likely secondary effects of the Sears Island project, the court holds that the record requires preparation of an EIS in order to comply with the letter and spirit of NEPA.

Counsel for Appellant
Edward F. Lawson
33 Mt. Vernon St., Boston MA 02026
(617) 742-4646

Counsel for Appellee
Kevin A. Gaynor, Ass't U.S. Attorney
P.O. Box 1588, Portland ME 04104
(207) 780-3258

Cabanne Howard, Ass't Attorney General
State House, Station #6, Augusta ME 04333
(207) 289-3661

Before CAMPBELL, Chief Judge, BOWNES and BREYER, Circuit Judges.