Sierra Club v. John O. Marsh, Jr.

769 F.2d 868, 3 Fed. R. Serv. 3d 153, 15 Envtl. L. Rep. (Envtl. Law Inst.) 20911, 23 ERC (BNA) 1113, 1985 U.S. App. LEXIS 21196, 23 ERC 1113
CourtCourt of Appeals for the First Circuit
DecidedAugust 9, 1985
Docket85-1098
StatusPublished
Cited by106 cases

This text of 769 F.2d 868 (Sierra Club v. John O. Marsh, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sierra Club v. John O. Marsh, Jr., 769 F.2d 868, 3 Fed. R. Serv. 3d 153, 15 Envtl. L. Rep. (Envtl. Law Inst.) 20911, 23 ERC (BNA) 1113, 1985 U.S. App. LEXIS 21196, 23 ERC 1113 (1st Cir. 1985).

Opinion

BREYER, Circuit Judge.

This case embodies an argument about whether a cargo port and a causeway that Maine plans to build at Sears Island will “significantly affect[] the environment.” 42 U.S.C. § 4332(2)(C). Maine’s Department of Transportation, the Federal Highway Administration, and the Army Corps of Engineers concluded that it would not; thus, they decided to fund, to grant permits for, and to proceed with, the project without preparing an Environmental Impact Statement (“EIS”). The Sierra Club sued the federal agencies, seeking to stop the project in the absence of an EIS. Sierra Club now appeals the federal district court’s determination that the agencies’ decision not to prepare an EIS was lawful. Having reviewed the administrative record, we disagree with the district court. In our view, the record reveals that the project will significantly affect the environment; and the agencies’ contrary conclusion lies outside the legally permissible bounds laid down by relevant statutes. 42 U.S.C. § 4332(2)(C); 5 U.S.C. § 706(2)(A). Hence, the agencies must prepare an EIS.

I

The legal framework in which this case arises is fairly simple. The National Environmental Policy Act of 1969 (“NEPA”) says that federal agencies must prepare “a detailed statement ... on the environmental impact” of any proposed major federal action “significantly affecting the. environment.” 42 U.S.C. § 4332(2)(C)(i). The federal Council on Environmental Quality (“CEQ”) has issued detailed regulations and explanations of NEPA’s statutory terms which tell federal agencies how to decide when an EIS is needed and how to go about preparing one. See 40 C.F.R. § 1500 et seq. (1984); Forty Most Asked Questions Concerning CEQ’s National Environmental Policy Act Regulations, 46 Fed.Reg. 18026 (1981). The CEQ regulations permit federal agencies to make a preliminary “Environmental Assessment” (“EA”) aimed at determining whether the environmental effects of a proposed action are “significant.” 40 C.F.R. §§ 1501.3, 1501.4, 1508.9, 1508.27 (1984). According to these regulations, the EA is a “concise” document that “briefly” discusses the relevant issues and either reaches a conclusion that preparation of an EIS is necessary or concludes with a “Finding of No Significant Impact” (called, in environmental jargon, a “FONSI”). Id. §§ 1508.9, 1508.13.

In this case, the Corps of Engineers and the Federal Highway Administration prepared or adopted EA’s and concluded with “FONSI’s.” They therefore granted necessary permits and funding for the Sears Island project without an EIS. The Sierra Club claims that these findings of “no significant impact” were “arbitrary, capricious, an abuse of discretion,” and therefore unlawful under the Administrative Procedure Act. 5 U.S.C. § 706(2)(A). The district court, after reviewing the fairly lengthy and complex administrative record, decided that the agencies’ conclusions were sufficiently reasonable to be lawful. Our legal duty, strictly speaking, is to review this district court conclusion.

The purely legal issue that we face at the outset is what standard to apply when reviewing the district court. In part the issue involves the question of what standard courts normally should apply to the agency’s decision. We have previously said that one challenging a decision not to prepare an EIS must show a “substantial possibility that agency action ‘could significantly affect the quality of the human environment.’ ” Quinonez-Lopez v. Coco Lagoon Development Corp., 733 F.2d 1, 2 (1st Cir.1984) (quoting Winnebago Tribe v. Ray, 621 F.2d 269, 271 (8th Cir.), cert. denied, 449 U.S. 836, 101 S.Ct. 110, 66 L.Ed.2d 43 (1980)). If the record reveals such a “substantial possibility” with sufficient clarity, the agency’s decision (not to produce an EIS) violates NEPA. Depending upon the agency's reasons, a reviewing court might *871 say that such an agency made a mistake interpreting NEPA or the CEQ regulations, or the court might say that the agency’s “no significant impact” finding was simply “arbitrary, capricious, an abuse of discretion,” 5 U.S.C. § 706(2)(A). Often these questions cannot be easily separated one from the other. But whatever verbal formulation it applies, the court in a case like this must essentially look to see if the agency decision, in the context of the record, is too ‘unreasonable’ (given its statutory and factual context) for the law to permit it to stand. Quinonez-Lopez, 733 F.2d at 2-3 (citing National Wildlife Federation v. Appalachian Regional Commission, 677 F.2d 883, 889 (D.C.Cir.1981); Committee for Auto Responsibility v. Solomon, 603 F.2d 992, 1002 (D.C.Cir.1979), cert. denied, 445 U.S. 915, 100 S.Ct. 1274, 63 L.Ed.2d 599 (1980)); see generally Gee v. Boyd, — U.S.-, 105 S.Ct. 2123, 85 L.Ed.2d 487 (1985) (White, J., dissenting from denial of certiorari); Shea, The Judicial Standard for Review of Environmental Impact Statement Threshhold Decisions, 9 B.C.Envtl.Aff.L.Rev. 63 (1980).

This case poses the additional (and somewhat difficult) problem of determining what standard we, an appellate court, should apply to the district court’s decision upholding the agency. The reason this matter is a little difficult is that administrative review as typically practiced by the federal courts differs from the expectation of those who framed the Administrative Procedure Act in an important respect. Initially, the Act’s authors apparently believed that district courts would review the reasonableness of agency decisionmaking on the basis of a record created in the district court. See generally Nathanson, Probing the Mind of the Administrator: Hearing Variations and Standards of Judicial Review Under the Administrative Procedure Act and Other Federal Statutes, 75 Colum.L.Rev. 721 (1975).

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769 F.2d 868, 3 Fed. R. Serv. 3d 153, 15 Envtl. L. Rep. (Envtl. Law Inst.) 20911, 23 ERC (BNA) 1113, 1985 U.S. App. LEXIS 21196, 23 ERC 1113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sierra-club-v-john-o-marsh-jr-ca1-1985.