16 ELR 20786 | Environmental Law Reporter | copyright © 1986 | All rights reserved

Sierra Club v. Froehlke

No. 71-H-983 (630 F. Supp. 1215, 24 ERC 1248) (S.D. Tex. March 25, 1986)

ELR Digest

The court holds that Congress must comply with the regulatory review process it established in the National Environmental Policy Act (NEPA) and that it exceeded its authority by appropriating funds for the Wallisville water project in Texas by relying on Army Corps of Engineers' (Corps') documents that had not satisfied NEPA requirements. The court holds that none of the Corps' assertions of NEPA compliance withstand legal analysis and refuses to lift a 1973 injunction that barred project completion prior to compliance. Congress originally authorized the Wallisville project in 1962, and the Corps began work in 1966. After passage of NEPA, the Corps prepared a draft environmental impact statement (EIS), which plaintiffs challenged in court. The district court, 3 ELR 20248, enjoined further construction, holding the EIS insuffficient. The Fifth Circuit, 4 ELR 20731, reversed portions of the opinion, but left standing the injunction pending submission of a supplemental EIS (SEIS). After conducting further studies, the Corps, in 1981, issued a combined EIS-post authorization change report (PACR) recommending a scaled-down project. After circulating the document for comments, the Corps prepared supplemental information for the PACR (SIPACR) to resolve issues concerning its discretion over the project. In July 1983, Congress, restless over the delays, reauthorized the project, relying in part on the SIPACR. The Corps then completed its review of the SIPACR and the EIS-PACR and issued a record of decision approving the project. In November 1985, Congress again appropriated funds for the project.

The court holds that Congress exceeded its authority when it explicitly authorized the Wallisville project in 1983 based upon the EIS-PACR and the SIPACR, neither of which completed the NEPA review process. In addition, the court finds that the SIPACR, which never received agency or individual review, was broader in purpose and covered a substantially different project than the EIS-PACR. Thus, the 1983 authorization violated NEPA as Congress never received from the Corps a consistent, good faith examination of the environmental effects of the project.

The court then reviews the purpose of judicial review under NEPA noting it is to ensure the procedural integrity of the agency's consideration of environmental factors in the EIS, and thus allowing Congress to reach a fully informed and well-considered legislative decision in project authorization. However, in the case at hand, Congress preempted the Corps' role by authorizing the project without full NEPA review. The court finds that the Corps then amended its administrative documents to complement the 1983 congressional authorization thereby abrogating the true NEPA role of the Corps. The court thus concludes that the Corps' post-1983 administrative action did not cure the NEPA defects. After an examination of general congressional authorization and appropriations processes, the court rules that congressional appropriations for projects must be based upon documentation that has satisfied NEPA requirements. Thus, the 1985 appropriation does not implicitly authorize the Wallisville project.

The court then reviews the role of courts and the standards of review under NEPA noting that the Fifth Circuit has adopted a reasonableness standard. Observing that administrative decisions should only be overturned for substantive or procedural reasons, the court next details the elements the Circuit has established to determine the adequacy of an EIS. After a discussion on the purpose of NEPA, its procedures, and regulations, the court notes that each federal agency develops its own procedures and regulations for compliance. Turning to Congress' role, the court notes that Congress can explicitly exempt a project from NEPA compliance but finds that the Wallisville project was never so exempted and thus is fully subject to NEPA.

In examining the NEPA procedures for the project, the court notes that while the Corps was still considering the EIS-PACR, Congress authorized the project in 1983 in reliance on the EIS-PACR and the SIPACR. The court rules that the SIPACR was actually an SEIS and thus subject to the full NEPA review process. After authorization, the Corps subjected the SIPACR to agency comments, submitted the EIS-PACR to the Environmental Protection Agency, released a supplemental information report (SIR), and found the project to be in NEPA compliance. Congress in November 1985, relying on the PACR, SIPACR, EIS, and SIR, appropriated funds.

The court then rules that the Corps acted in bad faith by not informing Congress that its authorization was for a project that had never passed full NEPA review. The Corps was obliged to at least alert Congress it was proceeding on unreviewed information. Dismissing the Corps' contention that the SIPACR was an internal agency document not subject to NEPA coordination, the court finds that the Corps subjected it to NEPA review after the 1983 legislation was passed and thus was an SEIS. After discussing the purpose and role of an SEIS and that it is subject to full NEPA review, the court rules that a challenge to an agency's failure to file an SEIS need only show that the project may have significant impact on the environment and that the agency did not act unreasonably. The court then finds that the SIPACR and the EIS-PACR were significantly different documents analyzing different effects upon the environment. The EIS-PACR deleted fish and wildlife enhancement as a project purpose and did not analyze a navigational project purpose. The court holds that these differences constitute a significant impact on the environment and thus the Corps' decision not to supplement the EIS-PACR was unreasonable. The court rejects the Corps' contention that had it known Congress would rely on the SIPACR, it would have subjected it to NEPA requirements.

After exploring the differences between authorization and appropriations, the court notes that the latter is not a vehicle for substantive legislation and holds that the 1985 appropriations bill's legislative history does not constitute authorization for the project. Since the 1983 authorization was based upon incomplete NEPA review, Congress was unable to make an objective project determination as mandated by NEPA. Further, the court holds that the 1985 appropriations bill was based on the incomplete NEPA review documentation and thus did not remedy the total defect in the 1983 legislation.

The court orders the Corps to complete the EIS-PACR and SIPACR reviews and present the objective information to Congress. Pending this action, the injunction is to remain in force.

The full text of this opinion is available from ELR (51 pp. $9,50, ELR Order No. C-1354).

Counsel for Plaintiffs
Rayburn Berry
11281 Richmond, Bldg. J, #110B, Houston TX 77802

Counsel for Defendants
Frances Stacy, Ass't U.S. Attorney
P.O. Box 61129, Houston TX 77208
(713) 229-2600

Counsel for Intervenors
Warren G. Clark Jr.
P.O. Drawer GG, Anahuac TX 77514
(409) 267-3161

Bue, J.


16 ELR 20786 | Environmental Law Reporter | copyright © 1986 | All rights reserved