ELR Citation: ELR 20216
No(s). 88-0116-B (D. Me. May 30, 1989)

The court holds that plaintiffs are entitled to a preliminary injunction to halt development of a cargo terminal on Sears Island, Maine. The district court previously denied injunctive relief, holding that even if plaintiffs were likely to succeed on their National Environmental Policy Act (NEPA) claim, they have not shown a likelihood of irreparable physical harm to the environment. The First Circuit vacated that decision, holding that a NEPA violation that deprives an agency of an informed awareness of significant environmental consequences is deemed harmful to the environment. On remand, the district court first sets out the standards it will follow in reconsidering plaintiffs' request for injunctive relief. The court must first determine whether plaintiffs have established a likelihood of success on their NEPA claims. The court must next decide whether any NEPA violation appears to have led to inadequate agency consideration of any significant environmental consequence and, if so, whether there is a clear risk of bureaucratic commitment to the project absent an injunction. The court must then identify any irreparable harm to defendants if the project is enjoined and compare it with any irreparable harm causally connected to a NEPA violation. Finally, the court must consider the public interest.

The court holds that plaintiffs are likely to prevail on the merits of some of their NEPA claims. The court holds that three firms that prepared significant background papers relied on by the federal agencies in the environmental impact statement (EIS) should have been listed in the EIS' table of preparers. The court holds that the Federal Highway Administration (FHwA) did not violate Council on Environmental Quality (CEQ) regulations by failing to directly select the outside consultants that prepared the EIS. The court holds that FHwA was not required to obtain conflict of interest disclosure statements from the firms that prepared the background papers, since CEQ regulations require disclosure statements only from contractors hired to prepare the EIS. The court holds that FHwA violated CEQ regulations by failing to obtain conflict of interest disclosure statements from two firms that wrote significant portions of the EIS. The court holds, however, thatnone of the contractors should have been disqualified from participation in the EIS process, since plaintiffs have failed to show that the contractors had any interest in the outcome of the project. The court holds that FHwA and the Corps of Engineers independently evaluated the EIS prepared by the Maine Department of Transportation (MDOT) and its consultants.

The court holds that the EIS' analysis of secondary impacts is arbitrary and capricious. FHwA did not adequately support its decision to restrict the secondary impact analysis to "light-dry" industries. The court notes that FHwA rationally excluded pre-project proposals, which included a nuclear or coal-fired power plant and aluminum smelter, from consideration. However, the administrative record does not indicate that FHwA considered seemingly relevant information concerning the possibility that heavy industry would be attracted to the island. The court holds that the decisions by FHwA and the Corps not to prepare a supplemental EIS (SEIS) were arbitrary and capricious. After FHwA approved the EIS, MDOT's consultants increased their estimate of the acreage required for the cargo terminal. FHwA and the Corps failed to carefully evaluate the environmental significance of the revised acreage estimates and did not adequately explain their decisions not to prepare an SEIS. The court holds that the federal agencies' decision not to undertake a more detailed analysis in the EIS of the alternative of a nonexpandable two-berth facility at an alternative location was not arbitrary and capricious. However, their decision not to evaluate the alternative of a nonexpandable two-berth facility anywhere on Sears Island was arbitrary and capricious. Plaintiffs have not shown that the agencies lacked good faith in failing to evaluate this alternative.

The court next analyzes whether plaintiffs have shown that irreparable harm is likely to result from defendants' NEPA violations. The court holds that that plaintiffs have not shown that irreparable harm is likely to result from defendants' failure to obtain conflict of interest disclosure statements from consultants hired to prepare the EIS. However, the court holds that plaintiffs have shown that the following NEPA violations resulted in inadequate agency awareness of significant environmental consequences: the EIS' inadequate analysis of secondary impacts, defendants' failure to issue an SEIS, and defendants' decision not to evaluate the alternative of a nonexpandable facility. The court holds that there is a clear risk of bureaucratic commitment resulting from agency approval of the project without full awareness of its secondary impacts, reasonable alternatives, and environmental effects. Plaintiffs have shown that irreparable harm to the environment is possible absent an injunction. The MDOT plans to complete the pier access road and install steel pier cells and connecting arcs, and it may not be practical to remove these structures. However, plaintiffs have not shown that this physical harm to the environment is causally connected to a NEPA violation and are thus unlikely to succeed on their claim that a NEPA violation would cause irreparable physical harm to the environment. Plaintiffs have shown that the NEPA violations led to an inadequately informed agency decision. The court holds that recourse to the NEPA process is not more likely to prove an exercise in futility if the project is not enjoined than if it is enjoined while further NEPA proceedings are continuing. If construction is allowed to continue, agency decisionmakers may become more disposed to adhere to their earlier uninformed decisions than to consider new information that may point to a different course of action. Decisionmakers are less likely to tear down a nearly completed project than a barely started one. The court holds that the balance of harms favors injunctive relief. Although delays will impose substantial costs on the MDOT, the balance of harms usually favors issuance of an injunction to protect the environment in NEPA cases. Finally, the court holds that the public interest favors injunctive relief to maintain the status quo pending NEPA compliance.

[Previous decisions in this litigation are published at 19 ELR 20692, 20699, and 20931. Related cases are published at 15 ELR 20911 and 16 ELR 20487.]

Counsel for Plaintiffs
Edward F. Lawson
Weston, Patrick, Willard & Redding
84 State St., 11th Fl., Boston MA 02109-2202
(617) 742-9310

Counsel for Defendants
Michael M. DuBose, Ass't U.S. Attorney
321 Federal Bldg., 202 Harlow St., P.O. Box 1196, Bangor ME 04401
(207) 945-0373

Thomas G. Reeves, Chief Counsel
Legal Division, Maine Department of Transportation
Child St., State House, Station No. 16, Augusta ME 04333
(207) 289-2681

Leslie S. Ritts, Daniel S. Goodman
Land and Natural Resources Division
U.S. Department of Justice, P.O. Box 7611, Ben Franklin Station, Washington DC 20044
(202) 633-2000