Sierra Club v. Marsh
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Sierra Club v. Marsh, (1st Cir. 1992).
Opinion
USCA1 Opinion
September 30, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-1312
SIERRA CLUB AND WILLIAM O'NEIL,
Plaintiffs, Appellants,
v.
JOHN O. MARSH, JR., ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
___________________
____________________
Before
Torruella and Boudin, Circuit Judges,
______________
and Keeton,* District Judge.
______________
____________________
Edward F. Lawson with whom Weston, Patrick, Willard & Redding was
________________ ___________________________________
on brief for appellants.
Anthony C. Roth with whom John Quarles, Morgan, Lewis & Bockius,
_______________ _____________ ________________________
and Thomas G. Reeves, Chief Counsel, Legal Division, Maine Department
________________
of Transportation, were on joint brief of appellees, for appellee
Maine Department of Transportation.
David C. Shilton, Attorney, Environment and Natural Resources
__________________
Division, U.S. Department of Justice, with whom Barry M. Hartman,
_________________
Acting Assistant Attorney General, and Robert L. Klarquist, Attorney,
___________________
Environment and Natural Resources Division, U.S. Department of
Justice, were on joint brief of appellees, for federal appellees.
____________________
____________________
_____________________
* Of the District of Massachusetts, sitting by designation.
2
KEETON, District Judge. Sierra Club and two of
_______________
its members ("Sierra Club"), challenging the adequacy of an
Environmental Impact Statement ("EIS"), appeal from a
summary judgment entered by the United States District Court
for the District of Maine in favor of appellees Maine
Department of Transportation, Federal Highway
Administration, Army Corps of Engineers, and United States
Coast Guard ("agencies") on Sierra Club's National
Environmental Policy Act ("NEPA") claims arising out of a
port project in Searsport, Maine. Although it appears that
the Federal Highway Administration is ultimately responsible
for the preparation of the final EIS, see Sierra Club v.
___ ___________
Marsh, 701 F. Supp. 886, 916-18 (D. Me. 1988) and
_____
Supplemental Affidavit of William Richardson at 1, all of
the defendant agencies were involved in the preparation of
the EIS. As a matter of convenience, we will refer to the
"agencies" when discussing the EIS.
Sierra Club challenges the district court's
conclusion that the analysis of secondary impacts in the
agencies' final EIS satisfies NEPA. We affirm.
I.
I.
Background
Background
More than ten years ago, Maine Department of
Transportation decided to build a modern port facility on
Sears Island in Searsport, Maine. The port project includes
construction of a marine dry cargo terminal and the building
of a causeway and highways to provide full rail and road
access to the port facility. A more detailed description of
the project appears in Sierra Club v. Marsh, 769 F.2d 868,
___________ _____
872-73 (1st Cir. 1985).
In three separate cases filed in the United States
District Court for the District of Maine, Sierra Club has
initiated several legal challenges to the construction of
the port facility. Rulings of the district court in the
first two cases have been the subject of three appeals to
this court. See Sierra Club v. Marsh, 769 F.2d 868 (1st
___ ____________ _____
Cir. 1985) ("Sierra Club I") (holding that NEPA requires the
_____________
federal agencies to prepare an EIS); Sierra Club v.
____________
Secretary of Transp., 779 F.2d 776 (1st Cir. 1985) ("Sierra
____________________ ______
Club II") (affirming the district court's decision that the
_______
Coast Guard had unlawfully issued a permit for the proposed
causeway under the General Bridge Act); Sierra Club v.
___________
Secretary of the Army, 820 F.2d 513 (1st Cir. 1987) ("Sierra
_____________________ ______
Club III")(affirming the district court's award of
_________
attorney's fees to Sierra Club).
The present appeal is from a final judgment in the
third case, which was commenced by a complaint filed on May
-4-
4
19, 1988. In this complaint Sierra Club requests
declaratory and injunctive relief halting construction of
the marine dry cargo terminal on Sears Island. The
complaint alleges that construction permits issued by the
Free access — add to your briefcase to read the full text and ask questions with AI
USCA1 Opinion
September 30, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-1312
SIERRA CLUB AND WILLIAM O'NEIL,
Plaintiffs, Appellants,
v.
JOHN O. MARSH, JR., ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
___________________
____________________
Before
Torruella and Boudin, Circuit Judges,
______________
and Keeton,* District Judge.
______________
____________________
Edward F. Lawson with whom Weston, Patrick, Willard & Redding was
________________ ___________________________________
on brief for appellants.
Anthony C. Roth with whom John Quarles, Morgan, Lewis & Bockius,
_______________ _____________ ________________________
and Thomas G. Reeves, Chief Counsel, Legal Division, Maine Department
________________
of Transportation, were on joint brief of appellees, for appellee
Maine Department of Transportation.
David C. Shilton, Attorney, Environment and Natural Resources
__________________
Division, U.S. Department of Justice, with whom Barry M. Hartman,
_________________
Acting Assistant Attorney General, and Robert L. Klarquist, Attorney,
___________________
Environment and Natural Resources Division, U.S. Department of
Justice, were on joint brief of appellees, for federal appellees.
____________________
____________________
_____________________
* Of the District of Massachusetts, sitting by designation.
2
KEETON, District Judge. Sierra Club and two of
_______________
its members ("Sierra Club"), challenging the adequacy of an
Environmental Impact Statement ("EIS"), appeal from a
summary judgment entered by the United States District Court
for the District of Maine in favor of appellees Maine
Department of Transportation, Federal Highway
Administration, Army Corps of Engineers, and United States
Coast Guard ("agencies") on Sierra Club's National
Environmental Policy Act ("NEPA") claims arising out of a
port project in Searsport, Maine. Although it appears that
the Federal Highway Administration is ultimately responsible
for the preparation of the final EIS, see Sierra Club v.
___ ___________
Marsh, 701 F. Supp. 886, 916-18 (D. Me. 1988) and
_____
Supplemental Affidavit of William Richardson at 1, all of
the defendant agencies were involved in the preparation of
the EIS. As a matter of convenience, we will refer to the
"agencies" when discussing the EIS.
Sierra Club challenges the district court's
conclusion that the analysis of secondary impacts in the
agencies' final EIS satisfies NEPA. We affirm.
I.
I.
Background
Background
More than ten years ago, Maine Department of
Transportation decided to build a modern port facility on
Sears Island in Searsport, Maine. The port project includes
construction of a marine dry cargo terminal and the building
of a causeway and highways to provide full rail and road
access to the port facility. A more detailed description of
the project appears in Sierra Club v. Marsh, 769 F.2d 868,
___________ _____
872-73 (1st Cir. 1985).
In three separate cases filed in the United States
District Court for the District of Maine, Sierra Club has
initiated several legal challenges to the construction of
the port facility. Rulings of the district court in the
first two cases have been the subject of three appeals to
this court. See Sierra Club v. Marsh, 769 F.2d 868 (1st
___ ____________ _____
Cir. 1985) ("Sierra Club I") (holding that NEPA requires the
_____________
federal agencies to prepare an EIS); Sierra Club v.
____________
Secretary of Transp., 779 F.2d 776 (1st Cir. 1985) ("Sierra
____________________ ______
Club II") (affirming the district court's decision that the
_______
Coast Guard had unlawfully issued a permit for the proposed
causeway under the General Bridge Act); Sierra Club v.
___________
Secretary of the Army, 820 F.2d 513 (1st Cir. 1987) ("Sierra
_____________________ ______
Club III")(affirming the district court's award of
_________
attorney's fees to Sierra Club).
The present appeal is from a final judgment in the
third case, which was commenced by a complaint filed on May
-4-
4
19, 1988. In this complaint Sierra Club requests
declaratory and injunctive relief halting construction of
the marine dry cargo terminal on Sears Island. The
complaint alleges that construction permits issued by the
federal agency defendants must be suspended due to failure
to comply with the Clean Water Act, 33 U.S.C. 1344,
section 9 of the Rivers and Harbors Act, 33 U.S.C. 401,
and NEPA, 42 U.S.C. 4331, et seq.
__ ___
Some of the issues raised in the complaint have
been dispositively resolved and are not before us. In
particular, the district court entered two separate final
judgments for the agencies -- on the Clean Water Act claims
on January 30, 1990 and on the Harbor Act claims on March
29, 1991 -- from which Sierra Club did not appeal. These
claims are not at issue in this appeal. The procedural
history that follows, therefore, is concerned only with the
issues that Sierra Club seeks to pursue on this appeal.
Sierra Club moved for a preliminary injunction on
August 12, 1988. The district court denied Sierra Club's
motion on the ground that Sierra Club had failed to
establish that it would be irreparably harmed if an
injunction was not issued. See Sierra Club v. Marsh, 701 F.
___ ___________ _____
Supp. 886 (D. Me. 1988) ("Sierra Club IV-A"). On appeal,
________________
-5-
5
this court vacated the district court's decision and
remanded. See Sierra Club v. Marsh, 872 F.2d 497 (1st Cir.
___ ___________ _____
1989) ("Sierra Club IV-B"). Upon remand, the district court
________________
(Cyr, J.) reconsidered the issue of irreparable harm and
issued a preliminary injunction. See Sierra Club v. Marsh,
___ ___________ _____
714 F. Supp. 539 (D. Me. 1989) ("Sierra Club IV-C"). The
_________________
district court concluded that Sierra Club had shown a
likelihood of success on the merits of its NEPA claims, and
in particular on its claim that the EIS discussion of the
port project's secondary impacts was inadequate. See id. at
___ ___
564.
Approximately two months after entering the
preliminary injunction, the district court allowed, over
opposition by Sierra Club, a defense motion for leave to
make a supplemental filing.
The agencies filed four affidavits to explain the
administrative record, and all parties filed additional
memoranda. After reviewing the administrative record,
affidavits, and additional memoranda from the parties, the
district court (Cyr, J.) granted summary judgment for the
agencies on Sierra Club's NEPA secondary impacts claim and
denied Sierra Club's cross-motion for summary judgment. See
___
Sierra Club v. Marsh, 744 F. Supp. 352 (D. Me. 1989)
____________ _____
-6-
6
("Sierra Club IV-D"). The court concluded, inter alia, that
________________ __________
the final EIS analysis of secondary impacts satisfies NEPA.
See id. at 359-60.
___ ___
Sierra Club appealed immediately from the summary
judgment order. This court concluded that the district
court's decision on summary judgment was interlocutory
rather than final, that it had not amended the preliminary
injunction within the meaning of 28 U.S.C. 1292(a)(1), and
that no appealable order had been entered. It dismissed the
appeal for want of jurisdiction. See Sierra Club v. Marsh,
___ ___________ _____
907 F.2d 210 (1st Cir. 1990) ("Sierra Club IV-E").
______ _________
By Order of January 23, 1992, as amended February
12, 1992, the district court (Brody, J.) entered final
judgment for the agencies, incorporating, inter alia, the
_____ ____
earlier summary judgment for the agencies on Sierra Club's
NEPA secondary impact claim. This appeal followed.
In Sierra Club IV-C, the district court concluded
________________
also that Sierra Club had demonstrated a likelihood of
success on the merits of its claim that the agencies
violated NEPA by not preparing a supplemental EIS to
evaluate new information on the acreage of the project. See
___
Sierra Club IV-C, 714 F. Supp. at 565-72. In its Memorandum
________________
on the parties' cross-motions for summary judgment, the
-7-
7
district court again concluded that Sierra Club had
demonstrated a likelihood of success on its supplemental EIS
claim, but the court deferred making a judgment on the
merits in light of the agencies' proposal to retain a
consultant to study whether the increased acreage
requirements of the project warrant the preparation of a
supplemental EIS. See Sierra Club IV-D, 744 F. Supp. at
___ _________________
365-68. As a result of further consideration by the
agencies, agency announcements were made on July 15 and July
25, 1991, that a supplemental EIS was to be prepared.
Accordingly, in its Final Judgment of January 23, 1992, as
amended February 12, 1992, the district court dismissed
Sierra Club's supplemental EIS claim as moot. Thus, our
affirmance may not bring an end to litigation over the
Searsport project as Sierra Club may challenge the adequacy
of the supplemental EIS. This matter, however, has no
effect on the present appeal.
II.
II.
Legal Requirements Regarding EIS
Legal Requirements Regarding EIS
Secondary Impacts Analysis
Secondary Impacts Analysis
NEPA requires federal agencies to prepare "a
detailed statement . . . on the environmental impact" of any
proposed federal project "significantly affecting the
quality of the human environment." 42 U.S.C.
-8-
8
4332(2)(C)(i). Not all impacts need be discussed in
exhaustive detail. First, only those effects that are
"likely" (or "foreseeable" or "reasonably foreseeable") need
be discussed, see Sierra Club I, 769 F.2d at 875, and, as in
___ _____________
other legal contexts, the terms "likely" and "foreseeable,"
as applied to a type of environmental impact, are properly
interpreted as meaning that the impact is sufficiently
likely to occur that a person of ordinary prudence would
take it into account in reaching a decision. Cf. Barber
___ ______
Lines A/S v. M/V Donau Maru, 764 F.2d 50 (1st Cir. 1985)
_________ _______________
(explaining the meaning of "likely" and "foreseeable" as
applied to tort liability for "financial losses" not
associated with physical harm). Thus, "duty" to discuss in
the EIS particular ones among all the types of potential
impacts is not an "absolute" or "strict" duty but one
measured by an objective standard. That is, a likelihood of
occurrence, which gives rise to the duty, is determined from
the perspective of the person of ordinary prudence in the
position of the decisionmaker at the time the decision is
made about what to include in the EIS. Second, even as to
those effects sufficiently likely to occur to merit
inclusion, the EIS need only "furnish such information as
appears to be reasonably necessary under the circumstances
-9-
9
for evaluation of the project." Britt v. United States Army
_____ __________________
Corps of Engineers, 769 F.2d 84, 91 (2d Cir. 1985); accord
__________________ ______
Concerned Citizens on I-90 v. Secretary of Transp., 641 F.2d
__________________________ ____________________
1, 5 (1st Cir. 1981) (stating that the issue is whether the
"'EIS can be said to constitute a statement which enable[d]
those who did not have a part in its compilation to
understand and consider meaningfully the factors involved'")
(quoting Cummington Preservation Comm. v. Federal Aviation
_____________________________ ________________
Admin., 524 F.2d 241, 244 (1st Cir. 1975)).
______
In the interest of clarity, we elaborate
immediately below on the first of these two points and on
its applicability to this case. More on the second point
appears in Part V, infra.
_____
The federal Council on Environmental Quality has
issued regulations that inform federal agencies of what must
be included in the EIS. See 40 C.F.R. 1500, et seq.
___ __ ____
(1991); Sierra Club I, 769 F.2d at 870. These regulations
_____________
mandate that the EIS discuss the direct and indirect effects
(secondary impacts) of a proposed project. See 40 C.F.R.
___
1502.16. Indirect effects (or secondary impacts) are those
effects,
which are caused by the action and are
later in time or farther removed in
distance, but are still reasonably
foreseeable. Indirect effects may
-10-
10
include growth inducing effects and
other effects related to induced changes
in the pattern of land use, population
density or growth rate, and related
effects on air and water and other
natural systems, including ecosystems.
40 C.F.R. 1508.8.
Agencies must consider only those indirect effects
that are "reasonably foreseeable." They need not consider
potential effects that are highly speculative or indefinite.
See Kleppe v. Sierra Club, 427 U.S. 390, 402 (1976); Sierra
___ ______ ___________ ______
Club I, 769 F.2d at 878. As this court has explained:
______
Whether a particular set of impacts is
definite enough to take into account, or
too speculative to warrant
consideration, reflects several
different factors. With what confidence
can one say that the impacts are likely
to occur? Can one describe them 'now'
with sufficient specificity to make
their consideration useful? If the
decisionmaker does not take them into
account 'now,' will the decisionmaker be
able to take account of them before the
agency is so firmly committed to the
project that further environmental
knowledge, as a practical matter, will
prove irrelevant to the government's
decision?
Sierra Club I, 769 F.2d at 878 (citing Massachusetts v.
______________ _____________
Watt, 716 F.2d 946, 952-53 (1st Cir. 1983)).
____
III.
III.
The Challenged EIS Analysis of Secondary Impacts
The Challenged EIS Analysis of Secondary Impacts
-11-
11
The EIS at issue in this case defines secondary
impacts as "impacts induced by and attributable to the
[cargo] terminal and its operation." Final EIS, Vol. I, 4-
108 (Appendix ("App.") 117).
The EIS analysis of secondary impacts devotes 47
pages to a discussion of a proposed industrial park on Sears
Island. See Sierra Club IV-A, 701 F. Supp. at 918. The
___ ________________
discussion assumes that the industry types likely to develop
in the proposed park are (1) fabricated metal products; (2)
non-electrical machinery and equipment; (3) electrical and
electronic machinery and equipment; and (4) transportation
equipment. See id. This type of industry is known as
___ ___
"light-dry." The EIS does not discuss the development of
any other type of industry as an indirect effect of the port
project.
In its Memorandum on Sierra Club's motion for a
preliminary injunction, the district court determined that
the agencies' decision to include the four light-dry
industries in the EIS evaluation of secondary impacts was
reasonable. See Sierra Club IV-C, 714 F. Supp. at 564. The
___ ________________
court concluded also, however, that the information before
the agencies suggested that it was reasonably foreseeable
that heavy industry, as well as food processing and forest
-12-
12
product industries, were likely to develop on Sears Island
as a result of the port project. The district court
concluded that it was unable to determine whether the
agencies' decision not to include these industries in the
EIS discussion of secondary impacts was reasonable because
there is nothing in the record, except
ipse dixit, to demonstrate an actual
____ _____ __ ______
agency decision to restrict the
______ ________
secondary impact analysis to these four
types of potential industrial
development, much less the rationale for
such a decision.
Id. The court added that
___
judicial review is rendered utterly
infeasible where the administrative
______________
record fails even to disclose whether
______
information seemingly relevant to a
rational secondary impact analysis was
ever considered by the agency or, if so,
how it was considered.
Id. at 565 (emphasis added). Accordingly, the court
___
concluded that Sierra Club had exhibited a likelihood of
success on the merits of its claim that the EIS analysis of
secondary impacts was inadequate and entered a preliminary
injunction.
In the filings submitted after the preliminary
injunction was issued, the agencies offered four affidavits
to supplement and explain the administrative record. See
___
Supplemental Affidavit of Francis Mahady ("Mahady
-13-
13
Supplemental Affidavit"); Supplemental Affidavit of William
Richardson ("Richardson Supplemental Affidavit");
Supplemental Affidavit of Robert Hunter; Affidavit of Leslie
Stevens. Sierra Club moved to strike the affidavits. The
district court, citing Camp v. Pitts, 411 U.S. 138, 142
____ _____
(1973)(per curiam), concluded that the affidavits could
properly be and were received by the court to explain
apparent gaps in, and otherwise to clarify, the
administrative record. See Sierra Club IV-D, 744 F. Supp.
___ ________________
at 356 n.7. After reviewing the affidavits, the court ruled
that the supplemental affidavits remedied the deficiencies
in the administrative record because they demonstrated that
there was an actual agency decision to restrict the
secondary impact analysis to light-dry industries and they
explained the rationale for that decision. See id. at 359 &
___ ___
n.11. The court concluded further that the basis for the
agencies' decision was rational and supported by credible
evidence. See id. at 359.
___ ___
In the present appeal, following further
proceedings and the entry of Final Judgment, Sierra Club
contends (1) that the district court erred in admitting and
considering the agencies' supplemental affidavits to
determine whether the EIS discussion of secondary impacts is
-14-
14
adequate and (2) that the district court erred in concluding
that the final EIS adequately considers the secondary
impacts of the port project.
IV.
IV.
Standards of Review
Standards of Review
Judicial review of an agency's compliance with
NEPA is governed by section 10 of the Administrative
Procedure Act, 5 U.S.C. 701, et seq. See Marsh v. Oregon
__ ___ ___ _____ ______
Natural Resources Council, 490 U.S. 360, 375 (1989). A
__________________________
reviewing court must hold unlawful any agency action,
findings and conclusions that are
"'arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the law . . . .'"
Conservation Law Foundation, Inc. v. Secretary of the
____________________________________ __________________
Interior, 864 F.2d 954, 957 (1st Cir. 1989) (quoting 5
________
U.S.C. 706(2)(A)); accord Sierra Club I, 769 F.2d at 870;
______ _____________
Concerned Citizens, 641 F.2d at 3; Silva v. Lynn, 482 F.2d
__________________ _____ ____
1282, 1283 (1st Cir. 1973). This standard of review is
highly deferential; the court must presume the agency action
to be valid. See Citizens To Preserve Overton Park, Inc. v.
___ _______________________________________
Volpe, 401 U.S 402, 415 (1971); Conservation Law Foundation,
_____ ____________________________
Inc., 864 F.2d at 957-58. The reviewing court should not
____
defer to the agency, however, "without carefully reviewing
the record and satisfying [itself] that the agency has made
-15-
15
a reasoned decision based on its evaluation" of the
available information. Oregon Natural Resources Council,
_________________________________
490 U.S. at 378; see also Grazing Fields Farm v.
___ ____ ______________________
Goldschmidt, 626 F.2d 1068, 1072 (1st Cir. 1980) ("The court
___________
should only assure itself that the agency has given good
faith consideration to the environmental consequences of its
actions"). That is, the court must "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." Sierra Club I, 769 F.2d at
______________________________ _____________
871 (emphasis added).
The district court, applying this standard of
review, concluded that the agencies' decision to restrict
the EIS secondary impacts analysis to light-dry industries
was rational and supportable on the record. See Sierra Club
___ ___________
IV-D, 744 F. Supp. at 359.
____
In Sierra Club I, we stated that we will take a
_____________
practical approach to deciding what standard of review to
apply to our review of a district court's review of an
agency decision.
We should be more willing, or be less
willing, to differ with a district court
about the 'reasonableness' or
'arbitrariness' of any agency decision,
depending on the particular features of
the particular case that seem to make a
-16-
16
more independent, or less independent,
appellate court scrutiny of the
administrative record appropriate.
Sierra Club I, 769 F.2d at 871-72. We should show proper
_____________
hesitation to overturn a district court's judgment as to the
reasonableness of an agency decision where, for example, the
"court's judgment turns on matters of fact that it has
__
determined, or upon evidence presented by witnesses in
court, or even upon lengthy district court proceedings in
which knowledgeable counsel explain the agency's decision-
making process in detail." Id. at 872. Where, however, we
___
are to apply the same legal standard to the agency decision
as did the district court and where the district court made
no findings of fact and heard no witnesses we will "exercise
a considerable degree of independence in reviewing the
administrative record" to determine whether the district
court's decision is correct. Id.
___
The agencies argue, unsurprisingly, that the
circumstances of this case at this point in the litigation
require us to apply the "hesitate-to-overturn" standard in
our review of the district court's decision. Sierra Club,
also unsurprisingly, contends that the circumstances of this
case mandate that we apply the "considerable-degree-of-
independence" standard. We need not resolve this dispute.
-17-
17
We conclude that even if we apply the less deferential
"considerable-degree-of-independence" standard, the district
court's decision must be affirmed.
V.
V.
The Affidavits
The Affidavits
Sierra Club argues that the district court erred
in admitting and considering the agencies' supplemental
affidavits to
-18-
18
determine the adequacy of the EIS evaluation of secondary
impacts.
A.
A.
As stated in Part II, supra, NEPA requires an
_____
agency to prepare a "detailed statement" discussing, inter
_____
alia, the indirect effects of a proposed project. See 40
____ ___
C.F.R. 1502.16. This requirement serves many purposes.
"The detailed statement aids a reviewing court to ascertain
whether the agency has given [ ] good faith consideration to
environmental concerns . . . , provides environmental
information to the public and interested departments of
government, and prevents stubborn problems or significant
criticism from being shielded from internal and external
scrutiny." Grazing Fields Farm, 626 F.2d at 1072 (citing
___________________
Silva, 482 F.2d at 1284-85).
_____
Because public disclosure is a central purpose of
NEPA, an EIS that does not include all that is required by
NEPA may not be cured by memoranda or reports that are
included in the administrative record but are not
incorporated into the EIS itself. See id. at 1073; see also
___ ___ ___ ____
Watt, 716 F.2d at 951 ("unless a document has been publicly
____
circulated and available for public comment, it does not
satisfy NEPA's EIS requirements"); National Resources
____________________
-19-
19
Defense Council, Inc. v. Morton, 458 F.2d 827, 836 (D.C.
_____________________ ______
Cir. 1972) (holding that the EIS "must set forth the
material contemplated by Congress in form suitable for the
enlightenment of the others concerned"); Appalachian
___________
Mountain Club v. Brinegar, 394 F. Supp. 105, 122 (D.N.H.
_____________ ________
1975) (holding that a deficient EIS cannot be resurrected by
supplemental information not processed in the same manner as
a draft EIS because it denies the public "the opportunity to
test, assess, and evaluate the data and make an informed
judgment as to the validity of the conclusions to be drawn
therefrom").
Sierra Club argues that "[h]aving concluded on May
30, 1989, Sierra Club IV-C, 714 F. Supp. at 565, that the
_________________
EIS did not properly explain why the secondary impacts
analysis of the EIS considered only four light-dry
industries, the District Court erred by allowing the use of
affidavits to provide the missing explanation." Appellants'
Brief at p. 29. Such an approach, the argument goes,
violates NEPA by allowing an otherwise defective EIS to be
cured by documentation not circulated to the public. Sierra
Club's challenge fails for two reasons.
First, the district court did not conclude that
the EIS was inadequate because it (the EIS) did not explain
-20-
20
how the agencies determined the scope of the EIS secondary
impacts analysis. Instead, the court concluded that it
could find nothing in the administrative record that
______________________
evidenced that the agencies had ever made a decision on what
secondary impacts to include in the EIS, let alone any
evidence of the rationale for that decision. See Part III,
___
supra; Sierra Club IV-C, 714 F. Supp. at 565.
_____ ________________
Second, and more important, Sierra Club's
contention suffers from a false premise. The implied
premise of its position is that NEPA requires the EIS to
_____________________
explain how the agencies determined the scope of the EIS --
_________________________________________________________
that, for example, NEPA requires the EIS to include a
discussion of why the agency determined that certain
indirect effects of a proposed project are not reasonably
___________________
foreseeable and therefore are not discussed in the EIS. It
_______________________________________________________
is true that NEPA requires an EIS to analyze the
environmental effects of what the agency decisionmakers
determine to be the secondary industrial effects of a
proposed project. In the statute and its concomitant
regulations, however, there is nothing that requires an EIS
to explain how an agency determined the scope of an EIS,
including, for example, why it excluded from the EIS each
alleged impact that the agencies determined did not in fact
-21-
21
qualify as a secondary impact. See Piedmont Heights Civic
___ _______________________
Club, Inc. v. Moreland, 637 F.2d 430, 440 (5th Cir. 1981)
___________ ________
(holding that it (the court) could not find "any authority,
requiring an EIS to explicitly discuss the factors that
determine the scope of the EIS").
Our decision in Grazing Fields Farm illustrates
____________________
this distinction. NEPA requires an EIS to include an
evaluation of alternatives to the proposed agency action.
See 42 U.S.C.
___
4332(2)(C)(iii). The plaintiff in Grazing Fields Farm
____________________
challenged the adequacy of an EIS prepared for a highway
project on the ground that it did not adequately discuss a
suggested alternative to the proposed route of the highway.
After reviewing the administrative record, the district
court concluded that the federal agency had carefully and
thoroughly evaluated the alternative in compliance with
NEPA, even though that evaluation and the information it was
based upon was not included in the EIS. See Grazing Fields
___ ______________
Farm, 626 F.2d at 1071. This court reversed, holding that
____
an administrative record cannot satisfy NEPA's requirement
for a detailed statement evaluating alternatives to a
proposed project. See id. at 1072. The opinion cautioned,
___ ___
however, that "our holding does not mean that the
-22-
22
administrative record should play no part in the evaluation
of the adequacy of the discussion of alternatives in an
[EIS]." Id. at 1074.
___
Study of the administrative record by
the court helps to assess the degree of
discussion any particular alternative
deserves, based on the alternative's
feasibility and the stage in the
decision-making process it is brought to
the attention of the agency. . . . This
use of the record to inform a court's
judgment about the adequacy of an EIS
must be distinguished from our holding
today that agency consideration of
alternatives evidenced by the record
cannot replace the NEPA mandated
discussion of alternatives in the [EIS]
itself. In other words, the district
court can use the administrative record
to set the standard for how much
discussion within the EIS a particular
alternative merits, but cannot deem the
unincorporated record to satisfy that
standard.
Id. (footnotes omitted); see also Valley Citizens For a Safe
___ ___ ____ __________________________
Env't v. Aldridge, 886 F.2d 458, 460 (1st Cir. 1989)
_____ ________
(stating that in a NEPA case "[t]he relevant legal question
. . . is normally whether the Statement is 'adequate' in
light of the information and comments before the agency at
the time it produced the Statement").
Another way of explaining when it is appropriate
for a court to go beyond examining the EIS itself and review
the administrative record in a NEPA case is to say that a
-23-
23
reviewing court may not rely on information and analysis in
an administrative record to cure an inadequate EIS, but it
may, and indeed must, review the administrative record to
determine whether the EIS is inadequate in the first place.
See Sierra Club IV-D, 744 F. Supp. at 359 n.11. In
___ _________________
Conservation Law Foundation, Inc. v. Andrus, 617 F.2d 296
__________________________________ ______
(1st Cir. 1979), for example, the plaintiff claimed that an
EIS did not adequately discuss an alternative to the
proposed project. After reviewing information in the
administrative record that revealed that the alternative was
largely hypothetical, we concluded that the "pedestrian"
analysis of the alternative in the EIS was adequate. See
___
id. at 299. "Thus, our examination of the administrative
___
record informed our judgment as to how extensively the
proposed alternative had to be discussed within the EIS
itself." Grazing Fields Farm, 626 F.2d at 1074 n.4
_____________________
(discussing Andrus).
______
In this case the district court similarly examined
the administrative record, including the supplementary
affidavits, to determine whether the EIS secondary impact
analysis was adequate. After reviewing the record, the
court concluded that it was reasonable for the agencies to
conclude that the four light-dry industries evaluated in the
-24-
24
EIS are the only industries that are reasonably likely to
develop on Sears Island as a result of the port project.
If, in contrast, the district court had concluded, for
example, that it was unreasonable for the agencies to decide
that heavy industry was not a reasonably foreseeable
secondary impact of the port project, therefore making the
EIS analysis of secondary impacts inadequate (because the
EIS did not discuss all reasonably foreseeable indirect
effects), that inadequacy could not be cured by information
and analysis that is in the administrative record but not
incorporated into the EIS. See Grazing Fields Farm, 626
___ ____________________
F.2d at 1072. That is, the court could not look to evidence
in the administrative record or in supplementary affidavits
that suggested that the agencies had made an informed, good
faith decision to go forward with the project after
informing themselves of the environmental effects of heavy
industry because that approach would defeat NEPA's goal of
informing the public of the likely environmental
consequences of the proposed project.
B.
B.
Having determined that a reviewing court may turn
to the administrative record to decide whether an agency's
decision on the scope of an EIS is reasonable, we must
-25-
25
address whether the district court erred in permitting
supplementation of the administrative record by considering
the agencies' affidavits submitted after entry of the
preliminary injunction.
The focal point for a court's review of an
agency's decision is the administrative record. See, e.g.,
___ ____
Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743
____________________________ ______
(1985); Camp, 411 U.S. at 142; Valley Citizens For a Safe
____ ___________________________
Env't, 886 F.2d at 460. "The fact that review sometimes or
_____
often focuses on the initial record does not mean that it
must, or always, will do so." Valley Citizens For a Safe
___________________________
Env't, 886 F.2d at 460.
_____
Where there was a failure to explain
administrative action so as to frustrate
effective judicial review, . . . the
remedy is to obtain from the agency,
either through affidavits or testimony,
such additional explanation of the
reasons for the agency decision as may
prove necessary.
Camp, 411 U.S. at 143; see also Overton Park, 401 U.S. at
____ ___ ____ ____________
420 (stating that where there are no formal findings,
examining the decisionmakers themselves may be the only way
there can be effective judicial review); Manhattan Tankers,
__________________
Inc. v. Dole, 787 F.2d 667, 672 n.6 (D.C. Cir. 1986)
____ ____
(holding that the court "may properly uphold the Coast
Guard's decision on the basis of affidavits or testimony by
-26-
26
the administrator who made the decision concerning his
reasoning at the time of the decision").
The administrative record may be "supplemented, if
necessary, by affidavits, depositions, or other proof of an
explanatory nature." Arkla Exploration Co. v. Texas Oil &
_____________________ ___________
Gas Corp., 734 F.2d 347, 357 (8th Cir. 1984) (quoting
_________
Independent Meat Packers Ass'n v. Bertz, 526 F.2d 228, 239
_______________________________ _____
(8th Cir. 1975) (citations omitted)), cert. denied, 469 U.S.
_____ ______
1158 (1985). The new material, however, should be
explanatory of the decisionmakers' action at the time it
occurred. No new rationalizations for the agency's decision
should be included, see, e.g., Sierra Club v. United States
___ ____ ___________ _____________
Army Corps of Engineers, 771 F.2d 409, 413 (8th Cir. 1985);
________________________
Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275,
_________________________________ ______
285 (D.C. Cir. 1981); Asarco, Inc. v. United States Envtl.
____________ ____________________
Protection Agency, 616 F.2d 1153, 1159 (9th Cir. 1980), and
_________________
if included should be disregarded. "If the agency action,
once explained by the proper agency official, is not
sustainable on the record itself, the proper judicial
approach has been to vacate the action and to remand . . .
to the agency for further consideration." Costle, 657 F.2d
______
at 285; accord Camp, 411 U.S. at 143; Asarco, Inc., 616 F.2d
______ ____ ____________
at 1159.
-27-
27
The district court concluded initially that the
administrative record did not contain evidence that the
agencies considered the prospect that industries other than
light-dry industries might locate on Sears Island. The
court explained that [a]lthough
i t i s
conceivabl
e that a
careful
considerat
ion of all
available
informatio
n could
h a v e
enabled
t h e
[agencies]
rationally
t o
conclude
that the
Mallar
Report
presented
a logical
basis for
determinin
g which
industries
w e r e
"reasonabl
y
foreseeabl
e" and
could be
attributab
le to the
S e a r s
Island
p o r t
project,
-28-
28
the court
cannot
determine
from the
record
that any
such . . .
decision
w a s
"founded
o n a
reasoned
evaluation
of the
relevant
informatio
n."
Sierra Club IV-C, 714 F. Supp. at 565 (citation omitted).
________________
After reviewing the supplemental affidavits, the court
decided that its initial conclusion about the completeness
or incompleteness of the administrative record was no longer
warranted. See Sierra Club IV-D, 744 F. Supp. at 359.
___ ________________
One reason the court could not initially determine
whether the agencies had properly considered all the
information before them was that the administrative record
reflected that a special report on secondary impacts ("ERA
Special Report") was to be prepared, yet the special report
was not included in the record and there was nothing in the
record to indicate that the proper decisionmakers had ever
reviewed that report. See Sierra Club IV-C, 714 F. Supp. at
___ ________________
563-64. The court later concluded, however, that the
-29-
29
supplemental affidavits satisfactorily explained why the
administrative record did not include the ERA Special Report
-- no separate report was ever prepared. Instead, the
report was prepared in "camera ready" form to allow direct
incorporation into the EIS. See Mahady Supplemental
___
Affidavit at 6; Richardson Supplemental Affidavit at 10.
The affidavits demonstrate that there was an
actual agency decision on the scope of the EIS secondary
impact analysis.
Francis Mahady (Vice-President of Economics Research
Associates, the company responsible for preparing the
written analysis of the reasonably foreseeable secondary
impacts of the port project) attests that he explained his
rationale for restricting the analysis to the four light-dry
industries, as well as his other conclusions as to secondary
impacts, to the appropriate agency decisionmakers. Mahady
Supplemental Affidavit at 14. William Richardson (the
Division Administrator of the Department of Transportation,
Federal Highway Administration, and the person responsible
for the administration of the Federal-aid Highway Program in
Maine, including compliance with all applicable laws, see
___
Richardson Supplemental Affidavit at 1) explains that he
-30-
30
made a deliberate decision to restrict the secondary impact
analysis to light-dry industry:
Based upon my previous participation in
meetings on this issue, upon my review
of the Municipal Response Plan, upon
Mahady's February 12, 1986 presentation
and upon the ensuing discussion among
attendees at that February 12 meeting, I
thought the choice to be reasonable and
sensible. The light, dry industries
identified and discussed in the Final
EIS (Final EIS at 4-109 to 4-111)
appeared to me to be the most probable
types of users in light of the various
physical and environmental limitations
which have to be taken into account in
developing Sears Island.
Richardson Supplemental Affidavit at 6.
The affidavits also provide an explanation for the
agencies' decision to restrict the secondary impact analysis
to light-dry industries. Mahady describes the "target
market analysis" method used to determine the types of
industries selected for analysis in the EIS and explains how
that method selected the four light-dry industries as likely
tenants and eliminated heavy industry as a reasonably
foreseeable tenant of Sears Island. Mahady Supplemental
Affidavit at 11, 12. Mahady also explains why the
agencies no longer consider the development of food and
forest product manufacturing as a likely consequence of the
port project, id. at 13, and he explains how information
___
-31-
31
on the limited sewer and water capabilities of Sears Island
led the agencies to conclude that heavy industry would not
develop on Sears Island as a result of the port project, id.
___
at 10.
Based on these affidavits, the district court
concluded that its questions about whether the agencies'
decisionmakers had considered all available information and
had made an actual decision to restrict the EIS to light-dry
industry had been answered. See Sierra Club IV-D, 744 F.
___ _________________
Supp. at 359. The court further concluded that the
agencies' explanation for their decision on the scope of the
EIS discussion of secondary impacts was reasonable and
supported by credible evidence in the administrative record.
See id.
___ ___
We are satisfied that the affidavits explain the
agencies' decision in the manner contemplated by Camp v.
____
Pitts. The affidavits do not contain any "facts" about the
_____
proposed project that are not also included in the EIS and
administrative record. Rather, the affidavits simply
explain why, based upon the information in the
administrative record and the EIS, the agencies concluded
that the four light-dry industries were the only reasonably
-32-
32
foreseeable secondary industrial effects of the proposed
port project.
Sierra Club argues that Camp v. Pitts does not
____ _____
apply to a court's review of an agency decision under NEPA
because to allow explanatory affidavits would violate NEPA's
goal of public disclosure. As stated in Part V(A), supra,
_____
however, NEPA does not require an EIS to discuss how the
agency determined the scope of the EIS. Thus, NEPA is not
violated when a court relies upon affidavits to explain an
agency's rationale for its decision that a certain possible
indirect effect of a proposed project is not within the
scope of the EIS because it is not "reasonably foreseeable."
Moreover, Sierra Club has cited no authority for its
assertion that a court should review an agency's decision
about what to include in a NEPA-mandated EIS in a manner
different from the way courts typically review agency
decisions.
Sierra Club's assertion that the affidavits are
inadmissible because they constitute post-hoc
"rationalizations" is similarly without merit. In Overton
_______
Park, the Supreme Court specifically anticipated that
____
affidavits containing post-hoc explanations would be
considered by courts reviewing the propriety of an agency
-33-
33
decision. The solution in such situations is not to ignore
the affidavits altogether, but rather to view them
"critically." Overton Park, 401 U.S. at 420. The district
____________
court noted this limitation. Sierra Club IV-D, 744 F. Supp.
________________
at 356 n.7. In this case, the agencies' explanations for
their decisions were supported by evidence in the
administrative record.
Sierra Club failed to proffer in the district
court any evidence that disputed the agencies' explanations.
For example, Sierra Club challenged the credibility of
Mahady's assertion that heavy industry could not develop on
Sears' Island because of the Island's limited water and
sewer capabilities. Sierra Club claimed that a report
prepared for the agencies (the Mallar Report) indicates that
one million gallons of water per day could be provided to
Sears Island. The district court found, however, that the
Mallar Report states that "major facility improvements would
be required at considerable cost" to provide a million
gallons of water a day, and that Sierra Club had offered no
evidence to rebut Mahady's conclusion that the large capital
expenditures required to make such improvements would render
such improvements unlikely. Sierra Club IV-D, 744 F. Supp.
________________
at 358 n.10. In these circumstances, the district court
-34-
34
properly accepted the post-hoc explanations of the
decisionmakers' action.
VI.
VI.
Application of the Legal Requirements to the
Application of the Legal Requirements to the
Secondary Impact Analysis in the Challenged EIS
Secondary Impact Analysis in the Challenged EIS
Sierra Club challenges the agencies' decision to
restrict the EIS analysis of secondary impacts to light-dry
industries on the ground that "it is too unreasonable for
the law to permit it to stand." Sierra Club I, 769 F.2d at
_____________
871. In particular, Sierra Club asserts (1) that it was
unreasonable to include the four light-dry industries in the
EIS discussion of secondary impacts at all because the
development of these industries on Sears Island is not a
reasonably foreseeable indirect effect of the port project;
(2) that it was unreasonable not to include heavy industry
as a reasonably foreseeable indirect effect of the port
project; and (3) that it was unreasonable not to include the
development of water-dependent industry as a secondary
impact. We consider each of these arguments separately.
A.
A.
Sierra Club claims that there is nothing in the
EIS or administrative record that supports a conclusion that
the port project will "induce" the development of the four
light-dry industries on Sears Island. In support of its
-35-
35
argument, Sierra Club points out that the final EIS states
that the four light-dry industries analyzed as secondary
impacts do not require access to water. See Final EIS, Vol.
___
II, F-5 (App. 220). The EIS states also that "due to the
high availability of fully serviced industrial park land in
the Greater Bangor area" industries that do not require
access to water are likely to locate in the Greater Bangor
area rather than the Searsport area. See id. at F-2 (App.
___ ___
204). Sierra Club asserts also that none of the reports
before the agencies lists a marine cargo port as a siting
factor for any of the four light-dry industries.
The agencies concluded that because of the highly
competitive nature of industrial park development in Maine,
"it was reasonably certain that the industries which
ultimately located in the industrial park would be those
which both were acceptable to the local population and were
the targets of intensive marketing efforts and inducements."
Mahady Supplemental Affidavit at 11. This method of
determining likely tenants of the industrial park is called
"target market analysis." A 1980 Land Use Plan prepared by
Bangor Investment Corporation, owner of Sears Island ("Land
Use Plan"), includes a marketing study that identifies the
four light-dry industries as those "that could best utilize
-36-
36
the opportunities offered by the port facility, Sears
Island, and the surrounding region, and, in turn, offer the
most benefit to the existing region." Land Use Plan at 24
(App. 548). In addition, a 1983 report prepared for the
Town of Searsport by Mallar Development Services entitled "A
Municipal Response Plan for the Industrial Development of
Sears Island" ("Mallar Report"), targets the same four
light-dry industries as good candidates for development on
Sears Island. Thus, the agencies concluded that because the
four light-dry industries are those that local officials and
the Sears Island property owners are trying to attract to
the industrial park, these industries are reasonably likely
to develop on Sears Island. Mahady Supplemental Affidavit
at 11.
Moreover, although the four light-dry industries
do not require access to water, the information before the
agencies supports a conclusion that these four industries
would benefit from close proximity to the port. The Mallar
report observes that these industries would benefit from the
transport cost savings associated with a centralized port,
see Final EIS, Vol. II, 4-110 (App. 119), because they have
___
significant import/export needs or potential, see, e.g.,
___ ____
-37-
37
ERA Special Report at IV-5 to IV-6, IV-8 (App. 456-57, 459).
We conclude that it was not arbitrary and
capricious for the agencies to include in the EIS discussion
of secondary impacts the four light-dry industries targeted
in the Mallar Report and the Land Use Plan. This conclusion
is consistent with our statement in Sierra Club I that the
_____________
Mallar Report and the Land Use Plan --the very reports that
identify the four light-dry industries as those most likely
to develop on Sears Island -- "are detailed enough for an
EIS to describe the type of development likely to occur,
____
even if it is pointless to analyze precise details." Sierra
______
Club I, 769 F.2d at 879.
______
The conclusion in the EIS that "industries that do
not require access to water" are likely to locate in Greater
Bangor does not make the agencies' decision to include the
four light-dry industries in the EIS analysis of secondary
impacts arbitrary and capricious. First, not all
information in the administrative record must support the
agency decision. See Environmental Coalition of Broward
___ ____________________________________
County, Inc. v. Myers, 831 F.2d 984, 986 (11th Cir. 1987)
_____________ _____
(citing Bowman Transp., Inc. v. Arkansas-Best Freight
______________________ ______________________
System, Inc., 419 U.S. 281, 285-86 (1974)). Second, when
____________
-38-
38
the conclusion is read in its proper context it does not
imply that industries not dependent on water are unlikely to
________
develop on Sears Island. The conclusion compares the
attractiveness of Mack Point -- an alternative site to Sears
Island -- to the Greater Bangor area. The EIS concludes
that Mack Point is not a viable alternative to Sears Island
in part because Mack Point does not offer sufficient land
contiguous to the port. Thus, industries not dependent on
water would be more likely to develop in the Greater Bangor
area than in scattered parcels in Searsport near Mack Point.
See Final EIS, Vol. II, F-1 to F-2 (App. 203-04). Indeed,
___
that same section of the EIS observes that "[o]nly Sears
Island offers sufficient developable industrial land which
is contiguous to a prospective port facility." Id.
___
B.
B.
Sierra Club argues next that the final EIS is
inadequate because it repeatedly refers to Searsport as the
future site of "heavy industry,"1 yet the EIS secondary
____________________
1 A report entitled "Where Should Heavy Industry Be Located
in Central Maine" defines heavy industry as
a development characteristically
employing equipment such as, but no
(sic) limited to, smoke stacks, tanks,
distillation or reaction columns,
chemical processing equipment, scrubbing
towers, pickling equipment, and waste
-39-
39
impact analysis assumes that only light-dry industry is
likely to develop on Sears Island. For example, in several
places the EIS refers to a 1978 report from the State of
Maine Advisory Committee on Coastal Development and
Conservation ("Advisory Report") that recommends that heavy
industry be clustered in either the Portland-South Portland
area or the Searsport-Stockton Springs-Penobscot area. See,
___
e.g., Final EIS, Vol I, 2-3 (App. 91). Moreover, a letter
____
written by Leslie Stevens, Director of the Maine Development
Office, states that the proposed Sears Island Industrial
Park is intended for heavy industry that needs close
proximity to a cargo terminal. See Final EIS, Vol. II, S-2
___
(App. 226).
____________________
treatment lagoons; which industry,
although conceivably operable without
polluting or otherwise causing a
significant adverse environmental impact
on the coastal are[a] (by, but not
limited to, the likelihood of generation
of glare, heat, noise, vibration,
radiation, electromagnetic interference
and obnoxious odors) has the potential
to pollute or otherwise cause a
significant adverse environmental
impact.
Sierra Club IV-C, 714 F. Supp. at 562 n.27 (quoting Final
_________________
EIS at 12-8, as quoted in Plaintiffs' Memorandum in Support
of Objections to Defendants' Motion for Summary Judgment at
p. 18).
-40-
40
The agencies provide two related explanations for
their decision not to include the development of "heavy
industry" as a reasonably foreseeable indirect effect of the
port project. Mahady explains that a key factor in the
selection of industries as "reasonably foreseeable" tenants
of the industrial park was that "industries locating in the
industrial parks had to be those which do not require
substantial water and sewer capabilities in order to
function," because existing sewer and water facilities are
limited. Mahady affidavit at 10 (citing Land Use Plan and
Mallar Report). Thus, for Sears Island to accommodate heavy
industry "major facility improvements would be required at
considerable cost." Id. Because these improvements were not
___
part of the proposed port project, and because the state,
county, town, and property owners were unlikely to make such
improvements in view of their expense, the agencies
concluded that heavy industry was unlikely to locate on
Sears Island as a consequence of the port project. See id.
___ __
The use of the "target market analysis" also led
the agencies to conclude that "heavy industry" was unlikely
to develop on Sears Island as an indirect effect of the port
project. As stated in Part VI(A), supra, the local
_____
officials and property owners have directed their marketing
-41-
41
efforts toward light-dry industries -- not heavy industry.
Moreover, because of the environmental effects of heavy
industry, the development of such industry on Sears Island
would likely meet heavy public opposition. Mahady Affidavit
at 9, 12.
In sum, the agencies decided that heavy industry
was not likely to develop on Sears Island as a result of the
port project, despite the Advisory Report's recommendation
that heavy industry be clustered in the same area as a cargo
port facility, because the available water and sewer
facilities on Sears Island are insufficient to support heavy
industry, and because the project owners and the town are
not directing their marketing efforts at heavy industry. We
are satisfied that this decision is not unreasonable.
In the alternative, Sierra Club contends that the
agencies' conclusion that heavy industry is unlikely to
locate at Sears Island is a "substantial revision" to the
final EIS requiring the preparation of a supplemental EIS.
NEPA regulations mandate
-42-
42
a supplemental EIS if one of two conditions is met:
(i) The agency makes substantial changes
in the proposed action that are relevant
to environmental concerns; or
(ii) There are significant new
circumstances or information relevant to
environmental concerns and bearing on
the proposed action or its impacts.
40 C.F.R. 1502.9(c); see also Watt, 716 F.2d at 948.
___ ____ ____
Sierra Club argues that "[i]f the long-established policy of
using public funds to build a cargo terminal at Sears Island
in order to concentrate heavy industry at that location has
been abandoned, then the purpose of the project has
fundamentally changed and the public must be informed of
that fact through a supplemental EIS." Appellants' Brief at
p. 20.
We can find nothing in the record to support
Sierra Club's assertion that "the purpose of the cargo
terminal is to concentrate heavy industry at that location."
The 1978 Advisory Report recommends that heavy industry and
port facilities be clustered together in two areas of the
state in order "to ensure that more than 95% of Maine's
3,000 mile coastline would be free of heavy industries and
major port activities." Final EIS, Vol. I, 2-3 (App. 91).
It does not follow from this recommendation that the purpose
of the port project is to induce heavy industry to locate on
-43-
43
Sears Island. Nor does it follow from the agencies'
conclusion that heavy industry is unlikely to develop on
Sears Island as a consequence of the port project that Maine
has abandoned its clustering policy. Thus, there is no need
to issue a supplementary EIS.
C.
C.
Sierra Club claims that the development of water-
dependent industry is a reasonably foreseeable indirect
effect of the port project. See, e.g., Final EIS, Volume
___ ____
II, F-2 (App. 203) ("there are really two classes of
industries likely to locate at or near the cargo port
facility proposed for Searsport: [the first of which is]
those industries engaged in intensive handling of waterborne
commerce which require direct proximity to the port
facility, since greater distance from the port would add
transportation costs which would make their operations
infeasible . . . .").
Although Sierra Club does not identify what types
of water-dependent industries it believes the EIS should
have discussed, it does identify a 1987 study excerpted in
the EIS that analyzes the water-dependent industries that
have developed at port projects comparable to the Searsport
proposal. See Final EIS, Vol I, 4-149 to 4-151 (App. 158-
___
-44-
44
60). The study found that auto processing, stevedoring, and
chemical industries developed at Colonels Island, Georgia,
and that industries involving bananas, phosphates,
stevedoring, and ship repair developed at Port Manatee,
Florida. See id. Sierra Club appears to contend that the
___ ___
EIS should have discussed these industries as reasonably
foreseeable secondary impacts, or at the very least,
discussed why they are not reasonably foreseeable.
The agencies respond that the EIS discusses
industries that rely upon water commerce as a direct --
rather than indirect -- effect of the port project;
therefore there is no reason to discuss these industries as
secondary impacts. As support for their response, the
agencies cite to Sierra Club IV-D, 744 F. Supp. 357 n.9, and
________________
to page 94 of the appendix on appeal.
In Sierra Club IV-D, the district court observed
________________
that although the agencies had originally anticipated that
forest product and food industries would locate facilities
on Sears Island, the secondary impacts analysis does not
discuss these industries. The court concluded, however,
that the final EIS does not discuss the manufacturing of
food and forest products because "primary manufacturing
production facilities . . . tend to be located in as close a
-45-
45
proximity as possible to their raw materials." Sierra Club
___________
IV-D, 744 F. Supp. at 357 n.9 (quoting Mahady Supplementary
____
Affidavit at 13). The agencies determined that these
industries would utilize storage facilities in the port
complex. The final EIS considers impacts related to the
storage of forest and food products in its discussion of the
direct impacts of the project. See id. (citing Final EIS,
______ ___ ___
Vol. 1, 2-12, 4.4.2, 4.8.2). The document at page 94 of
the appendix is a diagram of the placement of the storage
facilities at the port. The agencies' identification of the
EIS diagram and note nine of Sierra-Club IV-D, is not
_________________
completely responsive to Sierra Club's argument. The fact
that the agencies considered the effects of forest and food
products industries -- two industries that rely upon water
commerce, see Sierra Club IV-C, 714 F. Supp. at 565 -- does
___ ________________
not explain why the EIS does not include an analysis of
other water-dependent industries, such as the industries
identified in the 1987 study of comparable ports.
Nonetheless, we conclude that the EIS analysis of secondary
impacts is adequate.
First, Sierra Club has not called our attention to
any record that it made this argument in the district court.
Neither the district court's decision allowing Sierra Club's
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46
motion for a preliminary injunction, see Sierra Club IV-C,
___ ________________
714 F. Supp. at 559-65, nor the court's decision on the
cross-motions for summary judgment, see Sierra Club IV-D,
___ _________________
744 F. Supp. at 354-60, discusses any contention by Sierra
Club that the EIS evaluation of the port project's secondary
impacts is inadequate because it does not evaluate water-
dependent industries (other than food and forest
manufacturing). Absent an exceptional circumstance -- and
none appears here -- an appellate court will not consider
arguments that were not made to the trial court. See, e.g.,
___ ____
Borden v. Secretary of Health & Human Services, 836 F.2d 4,
______ ____________________________________
6 (1st Cir. 1987); Johnston v. Holiday Inns, Inc., 595 F.2d
________ __________________
890, 894 (1st Cir. 1979).
Second, NEPA requires an EIS to evaluate only
those secondary impacts that are reasonably foreseeable. We
conclude that it was permissible for the agencies not to
analyze other water-dependent industries, such as auto
processing, petroleum, and cement, because the likelihood of
these industries developing on Sears Island is too
speculative to be reasonably foreseeable. The only evidence
Sierra Club identifies (other than general statements to the
effect that water-dependent industries are likely to
develop) is the study of comparable ports around the United
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47
States. The fact that auto processing developed as an
indirect effect of a port project in Georgia, for example,
does not, without more, make the development of auto
processing on Sears Island reasonably foreseeable.
D.
D.
Accordingly, we conclude that the agencies'
decision to restrict the EIS secondary impact analysis to
the four light-dry industries is reasonable in light of the
findings in the Mallar Report, the Land Use Plan, and the
environmental and physical limitations of Sears Island. We
observe that it does not matter whether we, or the district
court, would have reached the same decision as the agencies.
Our only role, and that of the district court, is to satisfy
ourselves that the agencies have "made a reasoned decision
based on [their] evaluation" of the information before them.
Oregon Natural Resources Council, 490 U.S. at 378. We are
________________________________
so satisfied.
VII.
VII.
Conclusion
Conclusion
We conclude that the agencies' decision to
restrict the EIS analysis of secondary impacts to the four
light-dry industries is permissible. In other words, the
decision is not too unreasonable for the law to permit it to
stand. See Sierra Club I, 769 F.2d at 871. We conclude
___ _____________
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48
also that the district court did not err in admitting and
considering the agencies' affidavits pursuant to Camp v.
____
Pitts. We can find nothing in NEPA, its regulations, or
_____
case law, that would allow us to conclude that a court
reviewing an agency's decision about the scope of a NEPA-
mandated EIS may not consider affidavits that explain the
basis for the agency's decision.
Affirmed. Costs to appellees.
________ __________________
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Related
Camp v. Pitts
411 U.S. 138 (Supreme Court, 1973)
Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc.
419 U.S. 281 (Supreme Court, 1975)
Kleppe v. Sierra Club
427 U.S. 390 (Supreme Court, 1976)
Florida Power & Light Co. v. Lorion
470 U.S. 729 (Supreme Court, 1985)
Marsh v. Oregon Natural Resources Council
490 U.S. 360 (Supreme Court, 1989)
Natural Resources Defense Council, Inc. v. Rogers C. B. Morton, in His Official Capacity as Secretary of the Department of Interior
458 F.2d 827 (D.C. Circuit, 1972)
Cummington Preservation Committee v. Federal Aviation Administration
524 F.2d 241 (First Circuit, 1975)
Asarco, Inc. v. U. S. Environmental Protection Agency
616 F.2d 1153 (Ninth Circuit, 1980)
Grazing Fields Farm v. Neil Goldschmidt
626 F.2d 1068 (First Circuit, 1980)
Piedmont Heights Civic Club, Inc. v. Thomas D. Moreland
637 F.2d 430 (Fifth Circuit, 1981)
Environmental Defense Fund, Inc. v. Douglas M. Costle, as Administrator, U. S. Environmental Protection Agency
657 F.2d 275 (D.C. Circuit, 1981)
Commonwealth of Massachusetts v. James G. Watt, Commonwealth of Massachusetts v. James G. Watt, Atlantic Richfield Company, Intervenor-Defendants
716 F.2d 946 (First Circuit, 1983)
Barber Lines A/s v. M/v Donau Maru
764 F.2d 50 (First Circuit, 1985)
Sierra Club v. John O. Marsh, Jr.
769 F.2d 868 (First Circuit, 1985)
Sierra Club v. Secretary of Transportation, Maine Department of Transportation
779 F.2d 776 (First Circuit, 1985)
Sierra Club v. Secretary of the Army, Sierra Club v. Secretary of the Army, Sierra Club v. Secretary of Transportation
820 F.2d 513 (First Circuit, 1987)
James Borden v. Secretary of Health and Human Services
836 F.2d 4 (First Circuit, 1987)
Conservation Law Foundation of New England, Inc. v. Secretary of the Interior
864 F.2d 954 (First Circuit, 1989)
Sierra Club v. John O. Marsh, Jr.
872 F.2d 497 (First Circuit, 1989)
Valley Citizens for a Safe Environment v. Edward C. Aldridge, Etc.
886 F.2d 458 (First Circuit, 1989)
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