Appeal by defendants, the U.S. Army Corps of Engineers, the Federal Highway Administration and the New York State Department of Transportation, et al, from a judgment entered in favor of the Sierra Club and other plaintiffs in the United States District Court for the Southern District of New York (Griesa, J.) that voided a landfill permit and federal funding issued by the federal defendants for the construction of Westway. The judgment appealed from also permanently enjoined the construction of this public project. Affirmed in part, reversed in part and remanded. Judge Mansfield concurs in part and dissents in part in a separate opinion.
Before: MANSFIELD, CARDAMONE and PRATT, Circuit Judges.
CARDAMONE, Circuit Judge :
A change in something from yesterday to today creates doubt. When the anticipated explanation is not given, doubt turns to disbelief. This case is capsulized in that solitary simile. Following review during a 30-day trial of a remanded administrative proceeding, the United States District Court for the Southern District of New York (Griesa, J.) entered a judgment in favor of plaintiffs, Sierra Club and others on August 8, 1985. That judgment declared null and void a landfill permit for the West Side Highway Project (Westway) issued by the U.S. Army Corps of Engineers (Corps) on February 25, 1985 and funding approvals for Westway granted by the Federal Highway Administration (FHWA) on March 18, 1985. The judgment also permanently enjoined defendant New York State Department of Transportation (State) from construction of Westway.
In its 132-page opinion the district court found that the Corps' decisionmaking process had violated the National Environmental Policy Act (NEPA), the Clean Water Act and court orders previously issued in 1982. From this judgment the Corps, FHWA and the State appeal and an expedited hearing was held before us on August 29, 1985. We affirm the district court's conclusion with respect to the inadequacy of the federal defendants' Final Supplemental Environment Impact Statement (FSEIS), but reverse the grant by the district court of a permanent injunction and remand the matter to the federal defendants.
To put this case in proper perspective, we outline briefly its chronology, prior legal proceedings, actions taken on remand and the opinion below.
Early Chronology and Prior Legal Proceedings
The highway portion of Westway presently proposed contemplates a mostly underground six lane highway extending from the Battery to 42nd Street bordering the Hudson River on the west side of Manhattan. Approval of Westway as a link in the interstate highway system made New York State eligible for 90 percent federal funding for the project. The redevelopment project envisions a 93 acre park, planted on a roof covering the highway, together with extensive residential and commercial development. The total cost of the project is estimated to be 2 billion dollars and requires that 242 acres of the Hudson be landfilled to complete it.
The selection of the Westway project resulted from a process of lengthy study and consultation that began in late 1971 when the City and State of New York requested approval of the West Side highway corridor as part of the Interstate System. That process included discussion with a broad range of State and City agencies and community groups, not only concerning alternatives to the dilapidated West Side Highway, but also about methods of coordinating the highway reconstruction with redevelopment in the deteriorating pier and shoreline areas on the west side of Manhattan.
In April 1974 a draft environmental impact statement (EIS) was circulated for public review. Extensive public hearings were held during the following six-month period for comment, and five alternatives were identified. In January 1977 a Final EIS (FEIS) was approved that selected Westway as the preferred alternative. Later in 1977 the State filed an application with the Corps for a dredge-and-fill permit that was issued on March 13, 1981.
Litigation brought to challenge the permit's issuance has been before us previously. Sierra Club v. United States Army Corps of Engineers, 701 F.2d 1011 (2d Cir. 1983); Sierra Club v. Hennessy, 695 F.2d 643 (2d Cir. 1982). In these two decisions we upheld essentially the district court's conclusion that the 1977 FEIS--which described the Westway area as a "biological wasteland" (suggesting no fish lived there)--had failed to reveal to the public the possible importance of the site as a winter habitat for juvenile striped bass. Action for Rational Transit v. West Side Highway Project, 536 F. Supp. 1225, 1229 (S.D.N.Y. 1982). At that time many experts believed the juvenile striped bass used the Westway landfill area as an "overwintering" habitat--a place where these young fish remained more or less constantly throughout the winter months. 701 F.2d at 1024; 536 F. Supp. at 1246-1247.
Thus, in orders dated April 14 and July 23, 1982 the district court enjoined most construction and many other activities related to Westway and set aside the 1981 landfill permit granted by the Corps and the funding approvals granted by FHWA. The district court in its April order included a provision requiring the Corps to "keep records of all activities, deliberations, and communications (including communications with the FHWA and any other federal official or agency) which occur in relation to [the Westway] permit application." On appeal, we affirmed "the unusual but appropriate" record keeping order and directed the federal defendants "to make their own independent evaluations" of the fisheries issue. Sierra Club v. United States Army Corps of Engineers, 701 F.2d at 1048.
On April 22, 1982 the State again applied to the Corps for a landfill permit for Westway. In October 1982 the Corps convened a workshop of experts to discuss whether and what type of further study was necessary to resolve the question of the fishery habitat. This workshop recommended that a 17 month analysis be undertaken and that the program include various habitat studies. In July 1983 a second workshop of experts was called to assess the need for additional fisheries studies. Participants at that workshop were in agreement that determining the severity of Westway's effect on the striped bass was a matter beyond the state of the art.
Despite this uncertainty, on September 13, 1983 a decision was made by the Corps' New York District Engineer to conduct two winters of additional study to determine Westway's impact on the Hudson River bass. The Governor of New York appealed this decision to the Secretary of the Army, who directed the Corps' Chief of Engineers to determine whether a two-winter project was necessary. A resulting task force report caused the Secretary to decide on December 15, 1983 that although a Supplemental Environmental Impact Statement for Westway could be prepared with existing information under the worst-case regulations, the Corps' New York District Engineer should proceed with a study, limited to one winter--or four months--rather than the 17 months the workshop had recommended.
On May 28, 1984 the Corps and FHWA published a Draft Supplemental Environmental Impact Statement (DSEIS or draft report). The DSEIS concluded that the proposed Westway project landfill would cause a significant loss of habitat to Hudson River juvenile striped bass. It stated that such loss would be a "significant adverse impact to the Hudson River Stock of this species." Though not critical, the SEIS [sic] continued, Westway would likely cause "long-term repercussions" resulting in "depressed population levels for the foreseeable future." That harm could be amplified by other projects, e.g., Battery Park City and Jew Jersey's Harbor Drift, and "the danger to the stock and its ability to recover from the Westway loss could ultimately hinge on what direction these other proposals take." Finally, the draft report stated it would be "imprudent to consider any such habitat loss as projected by the Westway landfill to be either minimal, insignificant, or sustainable at current population levels."
On June 26 and 27, 1984 the federal defendants held a public hearing on the DSEIS, at which testimony was received from hundreds of persons, including representatives of the plaintiffs and federal, state and city officials. During the following 45-day comment period, the Corps and FHWA received numerous additional comments from concerned parties. Significantly, from the May 1984 publication of the DSEIS to the November 1984 publication of the FSEIS no new data was collected.
In late November 1984 after having reviewed all of the comments received on the DSEIS and having completed its analysis, the Corps issued a Final Supplemental Environmental Impact Statement (FSEIS or final report). In that final report the Corps concluded that the perceptible long-term decline in stock would be difficult to discern from normal yearly fluctuations and would have only "minor impacts" on the fishery. Even in a worst case scenario, the Corps continued, the consequence of the landfill would still be "insufficient to significantly impact" the commercial fishery and "though persistent, the magnitude of the depressed population is likely to be relatively small . . . and not a critical (or even minor) threat to its well being, nor to that of the commercial/recreational fishery."
After publishing the FSEIS, the Corps solicited and received further comments that it considered before making a final permit decision. On January 24, 1985 the Corps Engineer for New York issued his Record of Decision in which he announced his intention to grant a permit for Westway's construction. On February 25 the Corps issued a new landfill permit for Westway and on March 18 the FHWA published its Record of Decision and also reissued its funding approvals.
On April 18, 1985 plaintiffs filed a Supplemental Complaint in this action alleging that the landfill permit issued for Westway's construction was invalid. The U.S. Environmental Protection Agency (EPA) was aided as a defendant.
Judge Griesa held a seven-week trial from May 20 to July 12, 1985 to review the agencies' decisions. At trial, the federal officials involved in issuing the permit and their key advisors were questioned on virtually every aspect of the decisionmaking process, including the substance of internal deliberations and their thought processes. The district court also heard testimony from several witnesses offered as experts, some of whom supported the Corps' fisheries analysis and others, presented by plaintiffs, who criticized it.
On August 7, 1985 Judge Griesa issued his opinion in which he ruled in plaintiffs' favor on all claims raised by them against the Corps and FHWA. According to the district court's summary of its findings, defendants had failed adequately to disclose the nature and purpose of Westway and had failed adequately to support their conclusion that the impact on the striped bass fishery would be minor. The district court held that the Corps' finding that the landfill would have a minor impact on the striped bass was arbitrary because the Corps had: (a) no reasoned basis for the reversal of its analysis of impacts from the DSEIS to FSEIS; (b) improperly relied on the government's expert; (c) failed to collect sufficient data to support its analysis; and (d) failed adequately to consult and give full consideration to the views of federal fishery agencies.
As noted at the beginning, the central issue on which this case hinges is the Corps' denial of the change that clearly emerged from its draft report to its final report. The district court concluded that the denial was illogical and that it failed as an explanation. Although we agree with the district court's ultimate conclusion, we must consider the arguments raised by the federal defendants and the State. They claim that the district court improperly conducted a de novo review on the merits and improperly substituted its judgment for that of the Corps on the complex fisheries issues. Additionally, defendants assert that the trial court erred in requiring the Corps to adopt the views of federal fishery resource agencies, and in finding that the federal defendants had not disclosed information relating to practicable alternatives. These claims have merit. There were errors in the district court's approach to its review of the administrative record that require discussion.
Before analyzing these matters, we examine the controlling law. This litigation involves two federal statutes: NEPA and the Clean Water Act. The implementation of the legislative objectives expressed in these Acts is entrusted to the executive branch--in this case the federal defendants. We examine first the objectives of these legislative enactments and the scope and limitations of agency power to administer them.
NEPA is designed to "encourage productive and enjoyable harmony between man and his environment ... [and to] prevent or eliminate damage to the environment...." 83 Stat. 852, 42 U.S.C. § 4321. Section 101(2)(C) of NEPA sets forth procedures to insure the achievement of these substantive purposes. It provides:
The Congress authorizes and directs that, to the fullest extent possible . . . (2) all agencies of the Federal Government shall--
(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment a ...