Natural Resources Defense Council, Inc., and the State of New York, Intervenor-Appellant v. Howard H. Callaway, as Secretary of the Army

RESOURCES DEFENSE NATURAL COUNCIL, INC., al., et

Plaintiffs-Appellants, York, of New

The State

Intervenor-Appellant, CALLAWAY, Secretary H.

Howard Army, al., et

Defendants-Appellees. 916, Docket 75-7048.

No. Court of Appeals,

United States Circuit. Second

Argued June 1975. Sept.

Decided

Berle, Kass, Butzel & New York City, Parmelee, Johnson & Bollinger, Stamford, (Albert Conn. Butzel, K. New City, Haynes Johnson, York N. Stam- ford, Conn., Millock, Peter J. New York counsel), City, of for plaintiffs-appel- lants, Natural Resources Defense Coun- cil, Inc., and others. Strass, Carl Atty. Gen., Asst. Wash- (Wallace ington, D. C. Johnson, H. Jac- Gelin,. ques B. Washington, C., D. thereof),

place for defendants-appellees, Howard H. Callaway, and others. Lefkowitz, Louis J. Atty. Gen. of N. Y. (Samuel Hirshowitz, A. First Asst. Atty. Gen., Philip Weinberg, Shea, John III, F. Gen., Attys. counsel), Asst. for inter- venor-appellant, The State of New York. CLARK, Before Justice,* Associate MULLIGAN, MANSFIELD Circuit Judges.

MANSFIELD, Judge: Circuit The Natural Resources Defense Coun- cil, Inc., Fund, Environmental Defense Inc., Long Island Taskforce, The Sound Association, Inc., Civic The Fishers Island along with other environmental and citi- brought groups, zen this action in the against District of Connecticut the Sec- retary Army, the Secretary of the Navy and other related federal officials seeking declaratory injunctive relief against dumping by further the United highly polluted dredged States spoil at the New London Dumping Site Island Sound.1 The complaint charges violations of the National Envi- Policy ronmental Act of 42 U.S.C. * States, retired, London, Connecticut, the entrance to the New Supreme of the United Court by designation. sitting Harbor and about one-and-one-half nautical miles to the west of Fishers Island. Dumping site is located New The directly miles nautical off approximately two area of the ocean floor where currents the Feder- (“NEPA”), seq. et § al Water other water movement will not Act Amend- Control Pollution disperse. it to move or cause under- seq. et 33 U.S.C. ments (“FWPCA”). disagreement plaintiffs between lying York of New The State government defendants is over ap- an intervene as been allowed the relative merits of the New London pellant. as a Site containment site and of a un- arises out of more the existence suitable sites for Navy at by the United States dertaken disposal both ocean and on land. London, In order to Connecticut. adduced substantial Plaintiffs evidence submarine, class of a new accommodate of the shallow depth that because class, at the Subma- the SSN the fact that bottom currents Groton, Connecticut, Base in rine higher than there were at some alterna- necessary that it is Navy has determined sites, prospective tive storms, of dredge Thames River from sludge dumped at the New boundary to the north of Sound Island Site, Dumping although London it would of Groto.n, 7.5 miles. The new a distance while, place in for a remain tually would even- larger requires and of submarine class up disperse break and depth operations of water for greater northwest where would contaminate classes and the previous Navy is than destroy the first and nurseries and ma- widening deepening and accordingly the rine resources on the coast. River Channel. existing Thames This operation requires the removal

dredging Plaintiffs principal raised three claims 1) the Thames bottom and the district court: that from dis- before River approximately 2.8 million Corps Engineers of cubic of posal Army dump- issued a highly polluted material yards permit Navy contain- in ing violation of FWPCA, solids, 1344, industrial 2) volatile wastes and 404 of U.S.C. § § the Corps and nitrogen. that Kjeldahl failed to with NEPA in comply reaching the deci- dredging project began August dump at New a) London in sion phase dredging, and the first Navy, Corps, not the was the proper river, involving the lower reaches of the prepare required party the necessary complete. phase, The second in- is now volving Impact Environmental (“EIS”), Statement channel, upper portion b) the EIS inadequately dis- to commence in March is scheduled dumping projects cussed and alter- completed before the and is to be arrival sites, e) native the NEPA deci- Groton, submarines at sched- of the new sion-making procedures were shortcir- parties agree in 1976. The uled for later cuited, d) and there were errors in the dredged material to be the EIS, 3) that the substantive decision phase considerably larg- contains second to use the New by the pollutants than the ma- quantities er arbitrary capricious. In a thor- already dredged. terial carefully considered ough opinion court, Joseph M. Blumenfeld, district Plaintiffs and intervenors do not ob- rejected contentions, all these jurisdiction Judge, ject dredging project itself, choos- holding it lacked under legal their ing to restrict challenge to FWPCA, that the was the proper Navy’s use of the and that the author was ade- disposal as the Site area. All respects.2 in all quate plaintiffs-ap- that, parties agree polluted because the take issue now with all pellants likely great to cause material is harm to rulings except court district those deal- ecosystem ocean if allowed to dis- alleged ing with errors in the being dumped, it is perse important after dumped if it is the ocean it jurisdiction hold that We exists under site,” deposited “containment an FWPCA and that the discussion in F.Supp. (D.Conn.1974). opinion reported district court 2. The at 389 projects parties. and other and alter- EPA interested Such of other plaintiffs inadequate given by notice was sites was under herein dump native 15, 1974, July we but the action Accordingly, reverse and re- on was com- NEPA. 3, 1974, September there menced on those issues. Since is a less as to than mand district days additional amounts later. The court risk that rea- substantial waiting spoil dredged 60-day period will be soned that the polluted is a highly non-compliance jurisdictional prerequisite suit dumped we dismissed the claim. direct therefore FWPCA activity from such enjoined un- Navy be As conceded the govern requirements has satisfied til it ment, the district court’s dismissal of the aspects In all other we af- laws. these FWPCA count ground on this out, turns opinion. district court’s firm by reason of our later decision in Conser Society vation Vermont, Southern Inc. DISCUSSION v. Secretary Transportation, FWPCA. Jurisdiction Under (2d 938-39 & n. 62 Cir. 1974) peti FWPCA, tion for Under certiorari filed 43 U.S.L.W. 3648 (U.S., May 9, (No. of dredged 1975) U.S.C. 74-1413), New London site have been in We re error. there material held that Army 60-day from the notice provision quires is not an ab solute Appellants argued bar to Engineers.3 by private below earlier suits citi for this zens under permit was FWPCA. Aside that from the is 404(b) of sue § in violation of FWPCA of whether less than 60 issued days will not, required by satisfy 505(b) to permit § because it that so as a suit to brought section, 505(a), issued in accordance with be under dump it § was held in developed by guidelines Natural Resources Defense ing Council, Adminis Inc. Train, 510 of the Environmental Protection F.2d (D.C.Cir. trator 698-703 1975), The (“EPA”). district cited with Agency approval court and followed merits of this in reached the our decision in never conten Conservation Society, however, held tion, 505(a) as it that lacked is not the § juris exclusive 505(a) FWPCA, under of dictional jurisdiction basis for suit § under FWPCA 1365(a), jurisdiction which authorizes and that 33 U.S.C. cit of § claimed viola violation of the tions of izen suits for FWPCA can exist statute. under either 505(b) general certain places question Section restrictions federal statute, 28 bringing of on the lawsuits under U.S.C. or the § Administrative Pro Act, 505(a), including requirement cedure §§ U.S.C. 701-06. § The “prior give or action be commenced result no suit effect the saving plaintiff days given 505(e) FWPCA, after the clause of sixty § 33 U.S.C. 1365(e), alleged violation” which § notice of the to the is intended preserve 301(a), 1311(a), prohibits “(b) Subject (c) 3. § § U.S.C. section, to subsection of this discharge any pollutant, including dredged disposal specified shall each such site for 1362(6), spoil, permit by 33 U.S.C. into Secretary § the waters of each such except (1) in Army through application the United States accordance guide- with a 404(a) developed by Administrator, issued under FWPCA. §§ lines in con- (b), permits junction Secretary which authorize the to issue Army, discharge dredged spoil guidelines for the in accord- which shall based criteria guidelines EPA, developed by pro- comparable ance with applicable to the criteria pertinent part: seas, contiguous zone, in vide territorial 1343(c) title, ocean under section of this dredged “Permits for fill material (2) any guidelines in case such where “(a) Secretary Army, under acting The (1) prohibit clause alone specifica- through Engineers, may the Chief of issue site, through application tion of a permits, opportunity addi- after notice for tionally of the economic public hearings discharge dredged for the navigation anchorage.” navigable into the or fill material waters at 1344(a) (b). 33 U.S.C. § & specified sites. waters, both in nautical charts and under plain- citizen prospective rights all other 3(b) found in § a definition Ma- statutes under other may have tiffs Protection, Research, and Sanctuar- rine provisions.4 of FWPCA enforcement seek 92-532, Pub.L. Act of Stat. ies to exist under found jurisdiction The guide- Because of this lack of also exists for purposes § lines, government argues, there can- purposes.5 FWPCA by failure the Corps not have been dumping permit that, in violation to issue government argues The However, we guidelines. EPA are jurisdiction there is over even if dealing with non-existent claim, not here there has been no viola FWPCA its notice intent to is- 404(b). only guidelines guidelines. tion of § EPA, dumping permit issued to date sue have been specific reference 404(b) Corps made are the for use under § EPA Criteria, Criteria, Dumping stating Dumping 40 C.F.R. Part Ocean Ocean thereof, prohibits dump- 227.64 directly appli which are seq., § 220 et prevailing areas where currents dumping project to this inland cable dumped carry the material into (Long Island has been would waters. Sound areas,6 nursery, fishing shoreline government to be inland deemed completely Society Act, differ- of which and Train found interpretation both 4. Both Conservation language strong support of the FWPCA. for a liberal legislative history ent from precedential therefore 505(e) of the decision is of that sec- effect involving similarly corresponding constructed section of the cases tion and the limited to See, Act, g., prototype. S.Rep. legislation. e. Clean Air No.1196, Sess., (1970). Cong., 36-37 2d 227.64 of the EPA’s Ocean provisions Crite- indicate that the These sources ria, seq., provides: ei §§ C.F.R. 505(a) (b) judicial review set out & were §§ Congress previ- to eliminate not intended Disposal “Section 227.64 of Polluted Materi- ously existing avenues of citizen enforcement al Act, provide intended to an but were dredged “Polluted material be dis- remedy. 505(a) Thus §§ additional citizen (b) & posed if it can of in the ocean be shown that jurisdictional bases are not the exclusive time, place, and conditions of may and suit be for suit under the FWPCA brought produce unacceptable not to an are such as jurisdic- any under suitable federal impact on the areas adverse of the marine City Highland But see Park tional statute. 227.60(c). in § cited When environment ma- Train, (7th 519 F.2d 681 at 690-691 Cir. v. 1975). polluted has been found to be terial in ac- 227.61(c), bioassay § cordance with tests furthermore, is, strong may performed it this case when can be In there be shown finding jurisdiction argument un- of such tests can additional that the results be used to 60-day setting disposal 505(a), purpose since the of the assist in conditions. To § der waiting period, possibility give is to the adminis- such which minimize effects, harmful investigate carefully agencies conditions time to and act on must be trative violation, set, particular being given alleged attention an has been served. The following agencies given factors: and other were notice EPA Disposal (1) alleged plain- “(a) Disposal plaintiffs site selection. of the violations and be areas where informed before this suit was com- sites should benthic life tiffs were damaged by might no would be taken. which is menced that minimal. government’s Rail- The citation National 5. “(2) disposal site must be located Corp. Passenger v. National road Association disposal operations will such that cause no 453, Passengers, of Railroad 414 U.S. 94 S.Ct. unacceptable adverse effects to known nur- (1974), holding L.Ed.2d 646 fishing sery productive or areas. Where provision Passenger of the Rail citizen suit exist, prevailing currents the currents should seq., 501 et § Service Act of U.S.C. any suspended or be such dissolved private provides for a the exclusive basis would not be carried in to matter nursery known imposed by duties of action to enforce cause productive fishing popu- areas or Act, change our not view that does protected shoreline areas. lated jurisdictional 505(a) not the exclusive ba- § “(3) Disposal sites should be selected private to enforce the FWPCA. suits sis for physical environmental whose characteris- Passenger Corp. was based Railroad National type disper- amenable to the tics are most history legislative of the Rail upon Passen- sion desired.” language specific ger Act and Service completed. had been Further- disposal at the violated not be would more, plaintiffs, say monitoring least Having relied at site. London New years, will be terminated in two program of the Ocean standards upon part soon to which is too determine the long- support its selection Criteria Dumping effect on polluting term coastal fisheries site, Corps can- London dumping at the New site. that those stan- say heard not now its issuance of irrelevant dards than resolve these Rather FWPCA is- By its dumping project. for this upon the record as it sues stands we it has made the standards use of own the case to remand prefer findings The feder- to this case. applicable them court which will have by the district power have therefore al courts of observation benefit application review duty already who have witnesses testified but they were extent Criteria expert such additional testimony also of cf., v. g., e. Feliciano Corps, by the used documentary proof parties as the 1970); (2d Cir. Laird, F.2d Furthermore, may offer. should the dis- Resor, (2d 145-46 Smith conclude that trict court further Navy the New dumping on London site would the Ocean violate Criteria also contains evidence The record adopted have been applied which findings to the effect that support then be guidelines upon called dumping at the New London site vio- whether the determine is able to Dumping Criteria as set the Ocean lates its burden of showing sustain that selec- 227.64. Plaintiffs introduced forth the New London tion of as distin- proof to the effect that be- considerable some other guished from alternative site depth cause of ocean current Criteria, satisfies the justified which highly polluted in the area the conditions of the New London site’s because eco- dredged spoil, despite its initial cohesive- navigation nomic anchor- mass, gelatinous ness as would eventu- age. up and drift ally break northwestward to Authorship 2. of the EIS. coast where it the Connecticut would de- fishing stroy productive and shellfish plaintiffs’ next contention con- spawning. testimony authorship EIS, See nurseries cerns which Bohlen, App. 126-27, prepared by W. Frank Navy.7 of Dr. Section 159-60, 131-35, 6A, NEPA, 478-80 and Exs. U.S.C. 102(2)(C) relies response principally (2)(C), requires that an EIS be pre- area, study of currents responsible pared “by official” for label plaintiffs little or no question. the federal Plain- it was value because limited to a 25-hour argue Corps Engineers tiffs 303, 451, App. period. power grant 497-500. The through deny per- also relies Navy mits, 1344, current-monitor- 403 33 U.S.C. & §§ controlled required has been ing program by the environmental decisions connected However, plaintiffs to undertake. including EPA project, dredging, polluted that since the point spoil out designation up disperse not break spoil, would to the whereas the was a a few years the monitor- permit applicant, northwest and that mere would not avoid the ing program dam- therefore the federal Corps agency was already age, responsible have been for the primarily project and would be irreversible preparation done once the for the Wyoming plaintiffs’ Coordinating of this and from facts. Outdoor In our review Butz, 1244, adequacy relating (10th Council v. 484 F.2d of the EIS 1248 contentions Cir. 1973); Mississippi Valley United filed under NEPA we are see States v. statements and other 526, Co., 520, clearly 294, by erroneous rule since U.S. 81 S.Ct. 5 L.Ed.2d not bound essentially (1961). involve the these determinations drawing legal conclusions and inferences project, other evidence demonstrates project this were a

If initiated project nevertheless remains es party private Corps a state or sentially Navy dredging one. The might required pre indeed have been being Navy, done for benefit pare the EIS. Our decisions in Conser Navy’s expense, at the and to fulfill a Vermont, Society vation of Southern Inc. responsibility governmental entrusted to Secretary Transportation, supra, v. Furthermore, 931-33, Navy. since the Navy County 508 F.2d at and Greene project, FPC, conceived of it was the first 412, v. Planning Board 455 F.2d agency Thus, involved. federal while (2d Cir.), denied, cert. 419-20 409 U.S. participant is a 56, the extent 849, (1972), 34 L.Ed.2d 90 93 S.Ct. issuing permits, the Navy is active a federal clearly agency hold that cannot It, aspects project. all responsibility not the independently abdicate its Corps, responsible for drawing up proposed to evaluate federal actions to it letting contracts for the other, work and non-federal entities. See 1—291 seeing that properly the work was Burns, per v. Why? Association 517 F.2d All these point formed. factors (2d 1975). Cir. 1077 at 1081 When two responsible as the agency. cooperating agencies federal See or more Mitchell, 640, Hanly (2d v. 460 F.2d entities involved in a Cir.), denied, 990, however, cert. U.S. 93 S.Ct. project, quite situation is (1972). 34 L.Ed.2d 256 participation Federal Further different. more, only has continuing re preparation of the EIS is assured. The which, sponsibility to see that the dredged chan only issue is as between federal proper nel remains at the depth agencies, should be treated as the and in “lead” good repair. Upper See Pecos Associa agency responsible preparation. for its Stans, tion v. (10th Council on Environmental Quality The 1971), Cir. remanded for determination (“CEQ”) has issued Guidelines which al mootness, 409 U.S. designation of a S.Ct. agen low for the “lead” (1972), appeal 34 L.Ed.2d 313 dismissed cy prepare aspects the EIS on all of a moot, (10th 500 F.2d 17 involving federal more than one Finally, the district court found that agency.8 agencies no federal them data as to the relative designate environmental ex agen selves are to the “lead” agencies of the two pertise prior taking into account to Jan cy, uary presented 1972 had been by the sequence “the time in which the agen- parties. involved, cies become magnitude respective involvement, of their Appellants’ further argument expertise their relative with respect to Navy’s partial delegation of its duty as project’s environmental effects.” “responsible official” to a consultant 1500.7(b). 40 C.F.R. district court to prepare the EIS violated our decisions concluded on the basis of these guide- Society Conservation of Southern Ver- preparation lines that of the mont, Inc. v. Secretary of Transporta- improper. was not agree. We tion, supra, and Greene County Planning Although Corps, FPC, supra, Board recom misconstrues our mending the holdings dump site those cases. Rather than implying that it would not hire its personnel issue a own to prepare the Navy impact statement, unless desig Navy in this case nated, became rather contracted heavily out the involved in work to an indepen- Although only 8. Guidelines are developing recommending poli- CEQ advis- and national ory, authority pre- since the has no promote improvement CEQ to and cies ‘to foster regulations governing compliance scribe with quality,’ of environmental NEPA, carry significant weight the Guidelines 4344, has misconstrued 42 U.S.C.A. with this court. NEPA.” FPC, Planning supra, County Board v. Greene lightly suggest would not “[W]e Council, F.2d at 421. responsibility entrusted with the 1,400,000 imately yards cubic of spoil, first Navy personnel consultant. dent the New London site likely as a pro- rough draft of a short prepared spot. The United States Coast sent the draft and then statement posed Guard, according to a draft recently along with instructions consultant it, by proposes to use issued the New of comments it on the basis expand the dumping approxi- London site for supplied by the information other and 250,000 yards cubic mately spoil. final versions of and The draft Navy. Maintenance Thames River chan- prepared exist were they now the EIS through nel 1980 will approxi- create with mini- consultant independent by the 200,000 additional mately an yards cubic Navy. by the editing mal The Electric spoil. Boat Division of We agree with the district court that Dynamics applied has General to dredge acceptable these cir- procedure this 300,000 yards cubic from the Thames prohibited is not by and cumstances plant River near its and to dump the upon by plaintiffs. The relied decisions spoil at the New London site. by holdings to be avoided sought evil spoil The combined from these pro- Society and Greene in Conservation posed projects and from the Navy’s by preparation is the County project approximately totals 5 million cu- usually agency, a state with an party, Were it yards. bic all to be dumped e., grind”, i. “axe to an inter- individual years the next 5 within the New Lon- seeing project accepted est in don site the amount would far exceed specific pro- in a manner as completed average 250,000 of approximately cu- Authorship by par- such a biased posed. dumped there yards annually prior bic the fair might prevent impartial ty Indeed the total 1972. dumped amount of a envisioned evaluation into the entire Island during Sound problem no of self-interest Here NEPA. eight the first months of 1972 was 2.1 of the author exists. As the part on the yards. cubic million hiree, independent consultant Navy’s In view of the failure of the but the no interest to serve Navy’s Final EIS make any mention responsible to the fully Navy for whatsoever of all of these proposed Therefore, shortcomings in the EIS. projects analyze possible difference for NEPA purposes we see no cumulative effects of the Navy’s dump procedure preparation this between yards 2.8 million cubic highly by Navy personnel. In both of the EIS polluted spoil proposals guided preparers exclusive- cases dredging of an additional 2.15 million cu interests ly by yards, bic which must be dumped some process. the NEPA See dictates where, appellants renew their conten 1273-74. F.Supp. at tion, below, rejected that the EIS is defi Inadequacy Discussion in the EIS agree We that in respect cient. Effects of of Cumulative failed to furnish information essen Projects. Other to the environmental tial decision-mak ing process. filed dis- The Final EIS evaluated the environ- cussed and of this district court impact particular Navy concluded that

mental the environmental pend- did not mention other of the Navy’s It project. project may be considered in approxi- isolation ing proposals for the reason that the other mately an additional million cubic projects are tentative or spoil speculative at the New Lon- yards polluted and, segments nearby pro nature unlike of a or at areas. The don site posed highway which must be Engineers proposes, subject considered Corps of major part of one federal funding Congress, develop approval program, ment see Society of the Thames River Conservation dredge the channel Vermont, feet, Inc. generating Secretary of Southern v. depth approx- of 41 to a 88 ignore area. To supra, 508 F.2d at fect in the same Transportation, cumulative harm under such

934-35, Navy’s dumping spoil prospective ecological could be to risk required by other circumstances unrelated furthermore con disaster. The court projects. use cluded that recognized by Congress at the As was some unlike federal NEPA, passage good a deal of time of “bankwagon a ef will not have projects, pollution and water present our air inevitably to leading use fect” resulted from accumulation of small dumping output of the site for the same pollutants amounts of added to the air see Scientists’ Institute projects, other great water number of individ- Information, AEC, Inc. v. Public 156 ual, unrelated sources. 395, (1973). 481 F.2d 1079 U.S.App.D.C. “Important concerning decisions court Although recognized the district shape of use and the man’s future en- posed by the threat of incremental harm continue to vironment be made in proposals pol steady small but increments which area, F.Supp. in 389 spoil luted 1279- perpetuate rather than avoid the rec- persuaded develop it was previous mistakes of ognized decades.” impact an statement for a larg ment of S.Rep.No.91-296, Cong., 1st Sess. 5 ecosystem was neither feasible er nor was, (1969). large measure, in an Accordingly the court

reasonable. drew Congress attempt by to instill in the en- Navy’s single project, the line at the rea decisionmaking process vironmental duty to soning that “The discuss the im comprehensive approach more so that pollutants pact possible of all cannot be long term and cumulative effects of project”, each isolated imposed on and unrelated small decisions could be F.Supp. rep 1280. We believe that recognized, avoided, evaluated and either a view resents too constricted of the in mitigated, accepted as the price to be function of an EIS and of the formative paid major for the federal action under duty responsible agency prepar g., consideration. E. Natural Resources ing agree it. We Council, Morton, Defense Inc. v. supra, require not NEPA does to make a 836; F.2d at see Scientists’ Institute inquiry, ball” Natural “crystal Resources Information, AEC, for Public Inc. v. su- Morton, Council Inc. v. Defense U.S. pra; Lynn, Jones v. 477 F.2d (1972), 458 F.2d App.D.C. 1973). (1st Cir. The fact that another required that an to furnish only proposal yet has not finally 'ap- been appears such information as to be rea proved, adopted funded does not fore- sonably necessary under the circumstanc consideration, close it from since experi- project es for evaluation of the rather ence demonstrate that its adoption all-encompassing scope than be so implementation is extremely likely. preparing it the task of would be nigh recognition either fruitless or well impos come of Congress’ purpose sible, CEQ Indian Lookout Alliance Volpe, Guidelines for preparation of (8th govern A statements emphasize that con- agency expected cannot be ment to wait sideration should given not only to perfect until a solution environmental action that is subject of the EIS consequences but also is de to “related Federal actions and projects preparing circulating area, vised before an in the and further actions hand, contemplated” the other an agency may EIS. On (emphasis added), 40 C.F.R. go opposite 1500.6(a), extreme of treat and direct “single-shot” as an isolated “interrelationships and cumulative envi- face persuasive impacts venture evi ronmental of the proposed ac- tion dence that it is but one of several sub other related Federal projects stantially shall operations, similar each of bejjresented statement”, 40 which will have the same C.F.R. polluting 1500.8(a). ef- Additionally, recognized require- Society this see Conservation of itself Southern Navy Vermont, Inc. v. range Secretary consideration and of Transpor of broad ment tation, supra, 508 F.2d at 934-36. On evaluation: hand, all are the other to occur in the large overview that a point “The area, geographical all same are related mag- toward the maintained be should they involve dredging in that and dispos effects, both environmental of nitude spoil, present all problems al of similar contemplated ac- immediately pollution, spoil of from each actions for which and of future tion likely to be project dumped in the as a may serve proposed Clearly, New London area. the projects cumulatively sig- a or have precedent enough closely related so they impact.” nificant expected produce can be a cumulative 2c, (Oct. lb OPNAYINST impact environmental which must be 1972). evaluated as a whole. See Jones v. The Navy’s impact statement fails to supra, 477 F.2d Lynn, at 890-91.9 comprehensive this standard of meet failure Navy’s It is clear there are at consider these evaluation. major possibly other pri- dredging least several federal and in the New London dredging projects likely projects that are area is an vate example of the isolated produce polluted decisionmaking colossal amounts of sought to be eliminated particular in this area spoil for NEPA. The cumulative environmental Corps’ Island Sound —the fur- of dis- of all posal dredged spoil of deepening ther Thames River at or channel, the maintenance of that chan- near the New site clearly would nel, dredging greater than the impacts Thames be individually Dy- projects Boat Division of General and the risk of Electric the Coast environmental consequences namics and Guard’s Thames serious projects. dredging (such While none of as the movement of spoil River to- gained shore) have projects approv- may final these ward correspondingly al, beyond the stage are well of mere If the total amount greater. type all disposed and should have been to be of in this speculation spoil includ- area in the Navy’s analysis of future is objectively environmen- foreseeable studied ed Admittedly, Navy Corps, impacts. they they may are not tal contemplated by Navy that some and well conclude other method projects directly related to Navy’s disposal, such as containment are not island large enough the Thames in the sense to contain dredging spoil part Navy’s project, dredged all are from all of these and similar lead, 9. The district found proposes court that consideration of now in its EIS to use impacts separate projects cumulative Although Navy is re the New London site. quired project that, where the under consideration adds if adverse effects of at the may “bandwagon detected, type have effect” of the New London site are would necessarily discussed in Scientists’ Institute for Public In continue to use that formation, AEC, supra, discovery Inc. through monitoring F.2d at of such effects “bandwagon would, according plaintiffs’ 1089-90. Such a expert, effect” occurs very completed remedy when the existence of a damage, come too late to since compel development yards highly tends to polluted further spoil millions of cubic particular already dumped in a manner. would have been on the New London site. Although danger the district court saw no Thus, holding in view of our here, F.Supp. such an effect projects effects of other cumulative must be “regulations concedes that encour- considered, while need not we decide whether previously spoiled age dumpsites (39 use Navy’s dumping project necessarily Fed.Reg. 12115-12125), very reason effect”, “bandwagon practical have con- dump- little is known about the effects of sequences dump of a decision to at the ing; thought it is therefore unwise to unneces- similar. spoil Br., sarily (Navy 30, p. new sites” Note Guard, following Thus the Coast EIS, urged upon Congress present paucity despite should projects, effects, way dealing of with cumulative only effective information on as the of Marine Fish- some required The National to furnish infor- problem. should pointed analysis subject out that such on and of mation eries Service islands, which are under the matter for con- postpone than containment rather Chesapeake Lakes and while it the Great sideration others embarks way in areas, project. have environmental a The Navy such serious Bay economic advantages required study report but offer on is not to benefits scale, large on when used a since of its on the as well effect whole Sound, dump- then shared several Long relationship Island a the cost of approach that Another Nor does it to ing projects. yet not understood. need favorably projects been considered if have other so far removed in might consider required were to take a government from its own time or distance interrelationship, that at cumulative effect look long-range any, if between them is However, pending projects unknown, various would be speculative. or it is adoption system a of of alloca- plan required at least to disclose in its EIS disposal desirable ocean the most planned proposed dredging tion of or other polluted spoil the worst so that New sites area of London and projects likely at placed the site most to plans dispose could be to of proposals ap- Navy’s piecemeal London, it. The New dredged spoil contain at or near environmental proach analysis to consideration of with a discussion prevented any comprehensive plan- such environmental combined of its ning. projects. these other own and any The seeks to avoid broad Adequacy of Decisionmaking Proce- of the cumulative analysis impact of dure and Consideration of Alterna- in the New London area on the New tives to at there is ground that insufficient scientif- in the Site knowledge long-term ic about the effects finally procedure Plaintiffs attack the New London followed in selecting the Long about Island Site, Disposal New London contending ecosystem generally to enable it to make (1) that it violated NEPA for the reason course, The preferable an assessment. it the site was chosen without first argues, proceed would be considering its impact, environmental project, subject possible amounting Final nothing EIS more monitoring program if the suspension post than a hoc rationalization of a deci- any impacts. uncover should adverse made, already (2) sion there suggestion with The trouble failure to was a furnish sufficient infor- it “too little and too late” en- offers respect mation in the Final to be the EIS effective use. able reasonable- alternative sites to monitoring program, as we have comparison fair consideration and noted, probably not discover the respective impacts their with that of the effects until adverse millions of cubic New London site. yards spoil polluted dumped had been the Revised irreversibly May had Draft been started on well turn that it had program what out to be a indicated chosen to dredged two-year monitoring dispose spoil destruction. Brenton Reef, furthermore, a site located in Rhode program, is not Island calculated Newport, long-term off Rhode Although measure effects. Sound Island. Al- Navy’s project though the site is some 23 miles cannot wait on a com- from mouth, plete study Island the Thames River it was thought Sound it is that time to be the most suitable ecosystem, noting worth the at dis- previously River England posal Basin Commission is area because had been successfully conducting just study. disposal such as a site for Surely the used Coordinating Committee Dredging yards dredged cubic 8.2 million some Disposal, fact only been and Ocean dumped had there in spoil which change. After further no adverse effect. concurred 1970 with 1967 and public hearings great depth proceedings relatively Based on published site, December velocity the low Final Reef the Brenton currents, 1973, designating New London as the and the fact bottom dumping permit dumped previously at the site material by was issued the probability Corps New London in stayed place, in was had deposited April in 1974. high that material there disperse. Long future would not Sites in charge Plaintiffs these that events were not at Island Sound considered that have to a shortcircuiting amounted because studies EPA time decisionmaking process agency man- it to poor comments indicated be a dis- argue NEPA. They dated that a posal area. EIS must complete accompany pro- Just before the Revised Draft was cir- posal every federal action at stage applied Army culated the decisionmaking process, see Greene for a Corps Engineers permit Planning FPC, County Board v. supra, dumping pursuant at Brenton Reef to 420-21, at the Corps FWPCA, 33 404 of U.S.C. 1344. The § decision use Engineers’ to the New application Corps rejected “pre- site completely was made London outside questioned the mature” and economics processes of the NEPA on the basis of dumping at Brenton Reef. Over the information considerations never months, May-July, next three in the Draft presented Revised decided, apparently Corps independently short, they claim that the decision to use Navy, New London site despite was made the Re- Corps’ The basis for should be used. vised Draft EIS and that later Ad- altogether clear, is not decision but and Final were dendum specifically have choice seems to been based provide post to hoc tailored rationaliza- economics,10sketchy regard- information that decision. tion of The district court ing the extent which at the to sediment rejected plaintiffs’ arguments, reasoning currents, was New London site moved long as the Corps that as considered in latter the fact site had been good faith environmental factors set used, and the previously abandonment Addendum and in the out in the Final objections disposal EPA of its in permit issues EIS “before and the Long Corps Island Since the is Sound.11 is finalized” NEPA process decision permit-granting agency, views and “it should not is satisfied matter and the issued an Adden- prevailed Corps to use a partic- when the ‘decides’ to the Revised Draft Au- dum EIS on 1276. F.Supp. ular site.” 9, 1973, changing the gust primary dis- agree We with Brenton the district posal site from Reef to New court supplemental the use of erroneously The Addendum de- data and London. permissible is statements bolster change having made an scribed been deficient or to otherwise amend an on the recommendation Scientific consider in changes proposed Advisory Interagency of an Committee Secretary Army may 10. Use of Reef site the Brenton instead authorize the ap- nonconforming dredge spoil was estimated to cost New London site proximately in the $7,000,000 more. ocean if he concludes that no other economi- cally method or site available. feasible objections dropped its The EPA applicability change of this Island Sound because it concluded doubtful, however, appears this case since it change legislative had made con- that a recent appear to involve does not pos- dump sites within the Sound sideration ocean, as that term in 33 is defined U.S.C. Congress’ change was enactment of sible. The 1402(b). 1413(d), provides 33 U.S.C. § “supplemental” study when the of the movement sediment federal was made deficiency remedies the New adequately prepared. We impact of the find it unnec- analyzes Addendum issue, resolve this in view properly essary change among circulated that the agencies conclusion cannot in appropriate before a final our stand because the has been reached. We event implicitly decision practice adequate Why? presented 1—291 information approved As- Burns, supra, dump sites before issuing on alternative sociation al- supplemental though the it. statements adequately had not been

there circulated court, applying The district a “rule of NEPA. comply with The necessity from Natural reason” derived Resources economy of such a method of Morton, Inc. v. Council supra, Defense amending supplementing EIS’s in 833-34, n. F.2d at found the con- changes light proposal or EIS defi- adequate. of alternatives to be sideration redrafting without ciencies recirculat- disagree finding. with this We In our new document ing a whole is obvious. view, judged by when even the “rule of Indeed, CEQ the Guidelines specifically the; Addendum failed adequately reason” procedure: for the provide explain change and evaluate the of agency dump site from primary “An time supple- Brenton amend a draft ment or or to New London and failed final envi- Reef to make statement, analysis of the adequate comparative ronmental particularly an changes substantial merits and disadvantages when are made in environmental action, proposed significant and of the new of the alter- figured becomes prominently information available sites that had con- native cerning its environmental aspects. Navy’s earlier decision. In in the the agency such cases should consult 102(2)(C) NEPA, Section 42 respect with Council with to the 4332(2)(C),specifically U.S.C. requires § possible need for or desirability of re- inclusion in the a “detailed of the circulation statement for the statement” of “alternatives to pro appropriate period.” action”, including an posed evaluation of 1500.11(b). 40 C.F.R. § consequences the environmental of the alternatives, Although suggested an EIS Natural may be Re supplemented, critical Defense Council agency Morton, deci sources Inc. v. must, course, sion supra, be made 458 F.2d 834. The importance after the supplement has circulated, been this section of the to the con NEPA sidered and discussed in light process has been stressed repeatedly of the alternatives, not courts, before. g., this and federal e. Otherwise the Mon becomes a process ritual, useless County roe Conservation Society, defeat Inc. v. purpose NEPA, Volpe, (2d and rather 697-98 Cir. making mockery a 1972); of it. The Calvert Cliffs' Coordinating district Com mittee, AEC, court here found that supplemental Inc. v. U.S.App.D.C.33, information was made (1971); available F.2d by the 449 see CEQ Corps Guidelines, 1500.8(a)(4). considered 40 C.F.R. by the It is good latter faith before absolutely the New essential to the process Lon NEPA finally don site was chosen and a that the provided decisionmaker be Plaintiffs vigorously issued. attack a detailed and careful analysis of the erroneous, finding clearly as pointing merits and de environmental relative documentary evidence indicating possible action and proposed merits Corps alternatives, had decided early June, requirement that we have 1973 that the linchpin London site must characterized as “the of the en impact statement”, used instead of tire Brenton Monroe County Reef, which the Navy Society, previously had Conservation Inc. v. Volpe, chosen, e., long i. before the F.2d at 697-98. Indeed the brief development by these Measured standards neither alter- range wide of a discussion 9, 1973, August the Addendum nor action is federal any proposed natives of alternative dumping discussion is mandated important so passes in the Final sites muster. un- any proposal “involves when deficiency most serious Ad- concerning alternative conflicts resolved announcing change resources,” dendum 42 U.S.C. available uses complete London site is its inde- New failure requirement This 4332(2)(D). compare relative scope than the environmental wider of and of pendent of all the pros and cons sites EIS, Episcopal Trinity file the duty explain and to proposed reasons for Romney, 523 F.2d Corp. School change. Such statement is essen- 1975); Environmental (2d Cir. at 93 parties to enable all tial examine the Fund, Engi- Inc. v. Defense proposed change. 1974). merits This de- (5th neers, F.2d ficiency aggravated by representa- change tion that “recom- The content scope by the Committee on Dredging mended” of alternatives to the discussion Disposal, which and Ocean was untrue. upon the nature depends lacking in the Addendum is an Also eval- however, Generally, pre proposal. uation of containment characteristics go beyond of the statement “must parer presenta- New London site and a provide assertions” sufficient mere major risks of tion of the minor envi- reasoning to enable reader to data damage peculiar to that ronmental site. analysis evaluate conclusions and this information All of would certainly Lynn, on the EIS. Silva v. to comment necessary for the reader to be under- 1282, (1st F.2d Cir. Al proposed and evaluate the change stand no need to consider though there is alter dumping site. Without it the Adden- speculative feasibility or alter natives sufficient, simply is not when dum com- only implemented which could natives bined with Revised Draft EIS which significant changes in governmen after supplement, provide to it was to basis legislation require or which policy tal change evaluation of the for to New existing alterations of restric similar London. tions, Lynn, Club v. see Sierra F.2d (5th 1974), denied, cert. the Final were If itself ade might 95 S.Ct. 44 L.Ed.2d 484 cure the quate, U.S. deficiencies in 27, 1975) (No. 74-1024); (U.S., May Nat Addendum since it was circulated Resources Defense Council Inc. v. dumping per ural months several before 836-38, Morton, supra, actually issued. mit was That is not the here, nevertheless consider such al must however. The Final case EIS itself action as adequately justify ternatives also fails completely propos meet the partially change. major Its flaw is the absence of coherent, goal and it must evaluate their com presentation al’s understandable addition, comparison major merits.12 In of all of the parative dis alter present cussion of alternatives should be to the New London site. The natives compact Reef, straightforward, ed in a at Brenton alternative “capable comprehensible manner of be site in the Revised primary Draft EIS, ing understood the reader without the even mentioned in the is not section CEQ undue cross reference.” need for alternative sites and is mentioned on Guidelines, 1500.8(b). passing 40 C.F.R. elsewhere in the only Final agree sup- tive merits and demerits with 12. While we with the district court sufficient data, porting gov- choosing and the reasons the discussion of alternatives in an EIS is one making over the others. Even after erned a “rule of reason” we believe that it allowanc- beyond require knowledge es for the the EIS to admitted lack of not reason to about sites, proposed dump several of the furnish in an understandable fashion a discus- this stan- alternatives, not all dard was met here. sion of their rela- 5. Conclusion. sites discussed at some other Two EIS.13 Revised Draft EIS length sum, we hold that district court as alternatives to Brenton considered jurisdiction plaintiffs’ to hear Site and are Reef, “Acid” Site claimed violation FWPCA. The Corps EIS, in the Final but there is mentioned Engineers’ voluntary application statement the merits lacking a concise part of the Ocean Criteria each as compared with and demerits part of the makes that Criteria relied site and with the other the New upon by against enforceable it. as to the Similarly, other alter- sites.14 We affirm the district court’s holding actually discussed there is insuf- natives that the is the appropriate author of the comparison qualities ficient those other sites. each site The Final does meet not respect statements with At best standards because of failure to dis- conclusory, rather than in- each site dumping and cuss other dredging formative. projects in the area and failing present a complete analy- By impact, their cumulative combined with comparison possible dump- sis and project, ocean environ- sites, Final perform EIS fails to The Addendum ment. change evaluating the exposing reasoning task of its vital dump in primary site from Bren- agency proposing and data ton Reef to New London fails adequate- scrutiny by public ly compare New London with other government. See, branches dump explain sites and to the Navy’s supra, Lynn, e. 482 F.2d at g., Silva Similarly, choice. the Final EIS fails to 1286-87; County Monroe Conservation present comprehensible and thorough Volpe, supra, Inc. v. 472 F.2d at Society, all the discussion of alternative dumping completely leaves the reader 697. It suggested by the Navy sites and the rea- why the New as to dark London site choosing sons for New London over the suddenly chosen over Brenton Reef others. had been latter selected after the it gives site and permitted suitable should most as to sketchy information other sites further proceed with runners-up to until had been Brenton London site that New FWPCA resolved and the Reef. claim been serious disagree detailed statements made in the EIS con- but 13. We district court’s part transcript public hearings of a the evaluation Brenton Reef that that was clusion agencies incorporated by public never circulated to or to the into the Final EIS refer- was scrutiny. very F.Supp. place At the least 1289. The See 389 information ence. the by by used district court should cited district court as have Final EIS been accuracy simply might included in the EIS so have been accomplishing result this mentions and does open to test and discussion. as a containment Reef Brenton to other the reader materials discuss- not lead Site located in Block Island Sound to the hardly comports This merits. its relative Island, although southeast of Fisher’s it had requirements that alternatives with been described both in the revised draft EIS and in the EIS as “the best location for an comprehensive presented in a and evaluated fashion. and understandable site”, spoil disposal cursorily alternative was brushed aside the Final EIS in less Site, than a located miles to the 14. The Acid page. The district court considered this Island, treat- provisionally of Block was southeast sufficient, assuming ment lacked October, 1973, by approved in the EDA as an However, further information. Navy’s dumping acceptable for the site testimony by record reveals Prof. Bohlen é., spoil, i. River well before the is- Thames testing had been conducted at Site 3 over a Final EIS. The district court suance period years of 4 and that the site has several dumping that since at the Acid site concluded characteristics, attractive containment includ- expensive than at New London more ing greater depth than the New London site technical was uncertain Site Acid and the- greater and a distance from the Connecticut summary Acid Site feasibility, treatment of the coast, reducing the risk of thus destruction justified. disagree. We The was in the EIS nursery spawning and near the shore. were based not on conclusions court’s district (389 Blumenfeld below Judge F.Supp. the EIS remedied. Other- deficiencies (D.Conn.1974)), majority which of a “rule of reason” application wise properly characterizes as opinion into “thor- a mere rub- an would convert carefully considered.” ough hoc post rationalization stamp for ber appeal on this involves spirit major made. If the issue already decisions from site its ini- change of NEPA is to have the letter well as locus, Reef, Brenton ease, London. in this tial meaning any real point judge, the trial who this con- and circulate for consid- On prepare should trial, three-day concluded: ducted a supplemental eration and comment furnish in- that will detailed statement expert testimony was There respect (1) with formation hearing on this matter on the ba- dumping projects, existing dredging and present scientific knowledge sis of the New area proposed, in whether way is no to tell Bren- there anticipated impact, cumulative their is a or New London better ton Reef with Thames when combined respect to containment char- the ocean’s environ- project, on River expert This acteristics. evaluation alternative ment, (2) all of the Pearce, by Dr. John B. who was the Revised Draft EIS proposed in sites meetings chaired Scientific supplemental state- and Final EIS. Subcommittee, Advisory and Dr. genuine make a effort must then ment opinion indicated that Pearce fashion objective to evaluate truly in a body. generally shared qualities of all of the compare the concludes that The court evidence and, to select one on sites containment enough is to meet the presented rela- clearly stated data and rea- basis light placed upon burden tively soning. by the “substantive” standard review. have out a plaintiffs Since the made omitted). (footnote at 1292 This is a Id. clear case on the merits and irreparable of fact below question determined damage resumption could be caused “clearly characterize I cannot errone- of further at the New London hence I see no reason ous” and for a site, the district court directed to issue protracted to conduct further remand injunctive appropriate temporary relief hearings.1 designed quo to maintain status until

the FWPCA claim resolved The record further establishes to my defects the EIS remedied. satisfaction that there is a dearth of in- with respect long-term formation Reversed in eco- part remanded for logical damage marine from sea proceedings dump- further consistent with the ing. why is precisely This foregoing. issued here was conditioned MULLIGAN, Circuit Judge (dissent- maintenance of a comprehensive moni- ing): toring and environmental effects study On the question of the sufficiency of on the site administered the National the EIS I would affirm on the opinion of Oceanographic Atmospheric Admin- 7, majority opinion 1. In footnote the proceed maintains permissible decision to as were “clearly appellate that erroneous” clearly test of erroneous. apply review in does not our assessment of the point I find no discussion in in this circuit. adequacy of the EIS adequacy since this determination questioned When the of the EIS drawing legal involves the alleged conclusions and properly because failure to dis- facts, citing Wyoming inferences solutions, from physical Outdoor cuss alternative their viabil- Butz, Coordinating 1244, ity Council v. 484 F.2d ques- becomes crucial. That rests (10th 1973). Morton, 1248 Cir. Sierra Club v. tion of fact law and to that ex- therefore 813, (5th 1975) contrary. 510 clearly F.2d 818 Cir. apply. tent erroneous rule should That alternatives, court held: g., The non-sea e. total disposal, dredge farming, land tion, soil incinera- Having failed to convince the trial court that disposal container and island construc- inadequate, plaintiffs the EIS was must tion, definitely rejected were discussed and in now demonstrate the lower court’s find- revised ings accepting adequate EIS as 96 issue here should at be con- has been funded program This

istration. agencies in by those making sidered $500,000, presently and is in the sum to whether or their decisions as not to sig- event In operation. in New London in the utilize future. effects environmental adverse nificant may be disposal permit detected, the agree majority do with the I disposal suspended summarily FWPCA count dismissal discussed perhaps altered or will operation opinion 1 part in improper in site which a different to moved view of our decision Conservation So- begin study prior to to agreed Corps had Vermont, ciety of Southern Inc. v. Secre- at the commencement tary Transportation, 927, 508 F.2d site.2 (1974). London New & n.62 While I 938-39 agree holding disposes that our there ability of defendants The future issue, disagree I time bar that any re- drifting leakage control necessary. Assuming jurisdic- mand is is a New London site spoilage exists under 33 tion review U.S.C. disregarded cannot which factor 1365(a), 28 1331 or § U.S.C. Ad- weight assessing given must be Act, ministrative Procedure 5 U.S.C. v. the EIS. Sierra Club sufficiency of 706, issue is whether §§ or not 701— (5th 1975); Morton, 828 Cir. F.2d there is a statement of claim for a viola- Morton, F.2d Corp. v. Gulf Oil I tion of 33 U.S.C. see none 1973). It is further conced- (9th Cir. applicable was no since there EPA ef- haulage of spoilage ed here that fluent standard in effect at the time the further Brenton Reef miles some permit was issued'. As the record makes 7 mil- an additional cost of entail clear, Long Island Sound is considered view of these facts and In lion dollars. an inland water and the standards supplemented, as one EIS reading the promulgated by the EPA involve ocean reasonably agency describe the cannot dumping criteria. The fact New utilize London as “arbi- decision to made reference ocean dumping or an capricious,” “abuse of dis- trary or criteria in the issuance of its Ass’ns Neighborhood Chelsea cretion.” hardly transforms Island Sound Service, F.2d Postal v. United States into the Atlantic Ocean. These regula- (2d Cir. n.23 applicable tions are not on their face and expansion I do not see how territorial I disagree majority’s with the further jurisdiction set forth in regulation part opinion 3 of the determination can be conferred consent. While we should evaluate the that the agency can insist that an follow its own proposals as result of which pending regulations they where are clearly appli- polluted spoil date other future some cable, Laird, see Feliciano dumped at might be 1970), (2d situation is addition reasons ad- site. present. not here below, it is I think reasonable to vanced groups environmental will assume that Aside question from the of the ade- attacks on projects further such mount quacy supplemented, I am they have assiduously as here. It is compelled disagree injunctive anticipate projects which granted unrealistic majority relief opinion finally approved, adopted have not been precludes further at New Rather, I submit present or funded. new is prepared London until a being Acid Site in the The so-called referred to in Block Island Sound studied as majority opinion, which has never been used in the alternative locations event the New Lon- past, only flexibility in the proves site was don site to be unsafe. The brought provided by monitoring program per- the attention after the EIS the is objections organ- insufficiency view of the past filed. In was suasive that the claimed fishermen, dropped proposals been it has from fur- ized consideration of alternate in the EIS However, two other sites ther consideration. exalts form over substance. and not The ma- be remote established in the claim is resolved. FWPCA the is before us. relief record injunctive argues jority have plaintiffs because necessary There is further question of bal the merits on clear case aout made hardships, ancing of legiti which is a aby damage could be caused irreparable inquiry issuance of mate the tem While dumping. resumption relief here porary sought. g.,E. Exxon the merits on prevailed have plaintiffs City York, of New Corp. is one of involved major issue here (2d 463-64 in light of of the In EIS.' adequacy and halted volved in medias res affects utilizing an- costs involved staggering national defense. The work now present New involves projected widening and deepen explicitly supported more may ing the channel from the Gold Me Star tergiversation apparent Bridge to morial the Naval Submarine any subse- vindicated Government so that the Base new SSN 668 subma not, here does The opinion quent (the first of rines which was scheduled London but it, eliminate New I read as simply July 1975) to arrive in would have access explica- a more detailed requires to the Naval Submarine Base in 1976. its selection. tion The remand here requiring the prepara EIS, tion of a new with further hearings Moreover, proof any I see no at all of undoubtedly appeals, further will irreparable harm which would immediate obviously delay that project. I can injunctive temporary relief. The justify assume that the deployment of these program, monitoring which is a condition submarines and their access to the base granting permit and which relevancy has some to the defense of the developed conjunction At United States. the very least the Subcommittee, Advisory Scientific issue should be remanded to determine Engineers, Navy, Army how vital these interests are in compari the States of New York and EPA son with the interim spoliation which the Connecticut, certainly designed pre- issuance temporary injunction im to marine life and damage such vent plies. injunction issuance of an the immediate harm which preclude any opportunity without for the trial fact, apprehends. In majority court to make this factual determination complaint appellants principal constitutes, think, I an abuse of appel the environmental monitor- here ing program, late discretion. presently funded for a two- sum, will be ineffective to fore- year period, injunction In I believe the long-term environmental conse- remand directed here stall are unwarranted. There is contention no serious the EIS revised quences. While not be as damage will occur in the immediate perfectly prepared polished as my Moreover, that, note like, I I would brothers or I believe future. appeal, appel- of this Blumenfeld argument Judge cumstances, that under all oral the cir- funding further represented particularly lees existence of program unique will be an extension environmental monitoring good effect, view of the faith and now in program fully complies sought. in- expertise of the bodies with the law. Hence I respectfully dis- scientific volved, damage I consider sent.

Case Details

Case Name: Natural Resources Defense Council, Inc., and the State of New York, Intervenor-Appellant v. Howard H. Callaway, as Secretary of the Army

Court Name: Court of Appeals for the Second Circuit

Date Published: Sep 9, 1975

Citation: 524 F.2d 79

Docket Number: 916, Docket 75-7048

Court Abbreviation: 2d Cir.