Federal District Court Opinions
SIERRA CLUB v. U.S. ARMY CORPS OF ENGINEERS, (N.J. 2006)
SIERRA CLUB, NEW JERSEY PUBLIC INTEREST GROUP CITIZENS
LOBBY, INC., and NEW JERSEY ENVIRONMENTAL FEDERATION,
Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS,
COLONEL RICHARD J. POLO, JR., and MEADOWLAND
MILLS/MACK-CALI LIMITED PARTNERSHIP, Defendants. Civil
Action No. 05-1724 (JAP). United States District Court, D.
New Jersey. September 28, 2006
Edward Lloyd, Reed Super, MORNINGSIDE HEIGHTS LEGAL
SERVICES, INC., Environmental Law Clinic, Columbia
University School of Law, New York, Attorneys for
Plaintiffs.
Michael R. Cole, Benjamin Clarke, DE COTIIS, FITZPATRICK,
COLE & WISLER, LLP, Teaneck, NJ, Page 2 Virginia S.
Albrecht, Eric J. Murdock, David C. Lashway, David DePippo,
HUNTON & WILLIAMS LLP, Washington, DC, (Admitted Pro Hac
Vice) Attorneys for Defendant Meadowlands Mills/Mack-Cali
Limited Partnership.
Sue Ellen Wooldridge, Assistant Attorney General
Environment and Natural Resources Division Eileen T.
McDonough, Environmental Defense Section UNITED STATES
DEPARTMENT OF JUSTICE Washington, D.C., Christopher J.
Christie, UNITED STATES ATTORNEY Susan Handler-Menahem,
Assistant United States Attorney Newark, NJ, Attorneys for
Defendants United States Army Corps of Engineers and
Colonel Richard J. Polo, Jr. Page 3
OPINION
JOEL PISANO, District Judge
INTRODUCTION
Sierra Club, New Jersey Public Interest Group Citizen
Lobby, Inc., and New Jersey Environmental Federation
(collectively, “Plaintiffs”) filed this action against the
United States Army Corps of Engineers and Colonel Richard
J. Polo, Jr. (collectively, the “Army Corps”) and the
Meadowlands Mills/Mack-Cali Limited Partnership
(“Mills/Mack-Cali”). Plaintiffs challenge a permit (the
“Permit”) issued by the Army Corps pursuant to section 404
of the Clean Water Act, 33 U.S.C. § 1344 (the
“CWA”), and section 10 of the Rivers and Harbors Act, 33
U.S.C. § 403, authorizing Mills/Mack-Cali to fill
7.69 acres of wetlands in East Rutherford, New Jersey that
are subject to the jurisdiction of the Army Corps (the
“7.69 acres of wetlands” or the “Cedar Creek
Wetlands”).[fn1] In brief, Plaintiffs allege that the Army
Corps’s issuance of the Permit violated the CWA, the
National Environmental Policy Act, 42 U.S.C.
§§ 4321, et seq. (“NEPA”), the Rivers and
Harbors Act, 33 U.S.C. §§ 401, et seq., as
well as their implementing regulations. This Court has
jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C.
§ 2201-2202.
Plaintiffs filed the Complaint in March 2005, and, in May
2005, filed a motion for preliminary injunctive relief by
order to show cause. The Court held oral argument on
Plaintiffs’ motion on July 6, 2005. An order denying
Plaintiffs’ motion for preliminary injunctive relief was
entered on the Docket on July 7, 2005, and a written
opinion was entered on August 29, 2005. Page 4
Currently before the Court are Plaintiffs’ motion for
summary judgment, the Army Corps’s and Mill/Mack-Cali’s
cross-motions for summary judgment, the Army Corps’s motion
to strike extra-record material, and Plaintiffs’
cross-motion for judicial notice. The Court decides these
motions without oral argument as it is permitted to do
under Fed.R.Civ.P. 78. For the reasons discussed below, the
Court denies Plaintiffs’ motion for summary judgment,
grants Defendants’ cross-motions for summary judgment,
grants Plaintiffs’ motion for judicial notice, and grants in
part and denies in part the Army Corps’s motion to strike.
THE MOTIONS TO STRIKE AND FOR JUDICIAL NOTICE
Plaintiffs’ motion for summary judgment included exhibits
that were not part of the administrative record considered
by the Army Corps during the administrative proceedings.
Generally, when conducting judicial review of an agency’s
determination under the Administrative Procedure Act, a
court is limited to the administrative record before the
agency at the time the decision is made. 5 U.S.C. §
706 (providing that “the court shall review the whole
record or those parts of it cited by a party”); see also
Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743
(1985); Camp v. Pitts, 411 U.S. 138, 142 (1973). The Army
Corps moved to strike these extra-record documents,
identified as Exhibits 18-27 to Plaintiffs’ motion for
summary judgment, and to limit judicial review to the
administrative record submitted by the Army Corps.
Plaintiffs opposed the Army Corps’s motion and cross-moved
for judicial notice of documents identified as Exhibits
15-20 and 22-27 to Plaintiffs’ motion for summary judgment.
For the reasons discussed below, Plaintiffs’ motion is
granted, and the Army Corps’ motion is granted in part and
denied in part.
Certain of the pertinent Exhibits are not in dispute.
First, the Court notes that Plaintiffs Page 5 have not
opposed the Army Corps’s motion to the extent it seeks to
strike the extra-record document identified as Exhibit 21.
Accordingly, the Army Corps’s motion is granted to the
extent that it seeks to strike the document identified as
Exhibit 21. Second, the Army Corps agrees that three of the
documents that are the subject of Plaintiffs’ motion,
namely Exhibits 15, 16, and 17, may be considered by the
Court even though not included in the administrative
record. Exhibit 15 is “NJSEA’s Master Developer Request for
Proposals.” Exhibit 16 is “NJSEA’s Addendum to Master
Developer Request for Proposals.” The Army Corps indicates
that the documents at Exhibits 15 and 16 were cited as
references in the Army Corps’s documents, that record
documents quote excerpts from them, and that portions of
them are attached to documents listed in the index to the
record; consequently, submission of Exhibits 15 and 16
serves to provide the Court with full copies of materials
considered by the Army Corps. The Court agrees. The
document at Exhibit 17, “Memorandum of Agreement between
the Department of the Army and the Environmental Protection
Agency: The Determination of Mitigation under the Clean
Water Act Section 401(b)(1) Guidelines,” was published at
55 Fed. Reg. 9210 (Mar. 12, 1990), and thus is appropriate
for the Court to consider. The documents at Exhibits 15,
16, and 17 not being subject to reasonable dispute,
Plaintiffs’ motion is granted to the extent that it seeks
to have the Court take judicial notice of the documents
identified as Exhibits 15, 16, and 17. See Fed.R.Evid.
201(b).
Thus, the dispute between the parties is only as to the
documents identified as Exhibits 18-20 and 22-27. Although
the general rule may be that a court is limited to the
administrative record in reviewing agency action under the
Administrative Procedure Act (“APA”), courts may consider
evidence not contained in the record in a variety of
circumstances. See, e.g., Northcoast Page 6 Envtl. Ctr.
v. Glickman, 136 F.3d 660, 665 (9th Cir. 1998) (listing
instances in which a court may review materials outside the
administrative record); Bergen County v. Dole, 620 F. Supp.
1009, 1016-17 (D.N.J. 1985) (discussing propriety of review
of materials outside the administrative record). In
particular, in NEPA cases, “a primary function of the court
is to insure that the information available to the
decision-maker includes an adequate discussion of
environmental effects and alternatives, which can sometimes
be determined only by looking outside the administrative
record to see what the agency may have ignored.” Suffolk
County v. Sec’y of Interior, 562 F.2d 1368, 1384 (2d Cir.
1977); see also Dole, 620 F. Supp. at 1016-17. Plaintiffs
argue that they have submitted Exhibits 18-20 and 22-27 “in
order to illustrate that the [Army Corps] neglected to
mention serious environmental consequences and failed to
adequately discuss reasonable alternatives to the proposed
Xanadu project.” (Pltfs’ Judicial Notice Br. at 6). Thus,
these documents fall under the aforementioned exception in
NEPA cases to the general rule that a reviewing court is
limited to considering the administrative record.
Further, Federal Rule of Evidence 201 provides, in part,
that a court may take notice of a fact that is “not subject
to reasonable dispute in that it is either (1) generally
known within the territorial jurisdiction of the trial
court or (2) capable of accurate and ready determination by
resort to sources whose accuracy cannot reasonably be
questioned.” Fed.R.Evid. 201(b). Each of the documents
submitted at Exhibits 18-20 and 22-27 is a public or
quasi-public document capable of accurate and ready
determination, the authenticity of which is not at issue
and the content of which is not in dispute, and is thus
subject to judicial notice under Federal Rule of Page 7
Evidence 201(b).[fn2] See, e.g., B.T. Produce Co., Inc. v.
Robert A. Johnson Sales, Inc., 354 F. Supp. 2d 284
(S.D.N.Y. 2004) (taking judicial notice of various public
documents); Del Puerto Water Dist. v. U.S. Board of
Reclamation, 271 F. Supp. 2d 1224, 1233-34 (E.D. Cal. 2003)
(taking judicial notice of public and quasi-public
documents in context of motion to dismiss); Black v.
Arthur, 18 F. Supp. 2d 1127, 1132 (D. Or. 1998) (taking
judicial notice of public document in context of motion to
dismiss).
Accordingly, Plaintiffs’ motion is granted, and the Army
Corps’ motion is granted in part and denied in part. The
Court will consider the documents at Exhibits 18-20 and
22-27 to the extent that they may be probative of the
various arguments made by the parties as addressed
below.[fn3] Page 8
THE MOTIONS FOR SUMMARY JUDGMENT
I. LEGAL STANDARDS[fn4]
A. Standard of Review Under Fed.R.Civ.P. 56(c)
A court shall grant summary judgment under Rule 56(c) of
the Federal Rules of Civil Procedure “if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”
Fed.R.Civ.P. 56(c). The substantive law identifies which
facts are critical or “material.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
On a summary judgment motion, the moving party must show,
first, that no genuine issue of material fact exists.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The
burden then shifts to the non-moving party to present
evidence that a genuine, fact issue compels a trial. Id. at
324. In so presenting, the non-moving party must offer
specific facts that establish a genuine issue of material
fact, not just “some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986). Page 9
The Court must consider all facts and their logical
inferences in the light most favorable to the non-moving
party. Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860,
864 (3d Cir. 1986). The Court shall not “weigh the evidence
and determine the truth of the matter,” but need determine
only whether a genuine issue necessitates a trial.
Anderson, 477 U.S. at 249. If the non-moving party fails to
demonstrate proof beyond a “mere scintilla” of evidence
that a genuine issue of material fact exists, then the
Court must grant summary judgment. Big Apple BMW v. BMW of
North America, 974 F.2d 1358, 1363 (3d Cir. 1992).
In general, courts have recognized that summary judgment
is appropriate to adjudicate claims based on an agency’s
administrative record. See, e.g., S. Utah Wilderness
Alliance v. Norton, 326 F. Supp. 2d 102, 107 (D.D.C. 2004);
Clairton Sportsman’s Club v. Pa. Turnpike Comm’n, 882 F.
Supp. 455, 463 (W.D. Pa. 1995). This matter is
substantially based on the Army Corps’s administrative
record, and there is no dispute as to the materials facts.
Instead, the disputes involve whether the actions of the
Army Corps conform to the requirements of the applicable
federal statutes and regulations. Consequently, this matter
is appropriate for summary judgment.
B. Standard of Review Under the Administrative Procedure
Act
Claims under the CWA and the NEPA are subject to judicial
review under the APA, 5 U.S.C. §§ 701, et seq.
See, e.g., Soc’y Hill Towers Owners’ Ass’n v. Rendell, 210
F.3d 168, 179 (3d Cir. 2000).
The APA provides in relevant part that agency actions,
findings, and conclusions can be set aside only if they are
“arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. §
706(2)(A),(E). This is a very narrow and highly
deferential Page 10 standard under which an agency’s
action is presumed valid. Citizens to Preserve Overton Park
v. Volpe, 401 U.S. 402, 415 (1971); Clean Ocean Action v.
York, 861 F. Supp. 1203, 1219 (D.N.J. 1994). A reviewing
“court is not empowered to substitute its judgment for the
agency’s.” Citizens to Preserve Overton Park, 401 U.S. at
416. Instead, the court’s inquiry is limited to determining
whether the agency “considered the relevant factors and
articulated a rational connection between the facts found
and the choice made,” Baltimore Gas & Elec. Co. v. Natural
Res. Def. Council, Inc., 462 U.S. 87, 105 (1983), and
“whether there has been a clear error of judgment.” Motor
Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mutual
Auto. Ins. Co., 463 U.S. 29, 43 (1983). An agency’s
conclusions will be upheld “if they are supported by such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Passaic Valley Sewerage
Comm’ns v. U.S. Dept. of Labor, 992 F.2d 474, 480 (3d Cir.
1993); see also Friends of the Earth v. Hintz, 800 F.2d
822, 831 (9th Cir. 1986) (“The court may not set aside
agency action as arbitrary or capricious unless there is no
rational basis for the action.”). Further, agency
determinations based on highly complex and technical
matters are entitled to great deference. Baltimore Gas &
Elec. Co., 462 U.S. at 105. In addition, a court may take
into account that the Army Corps may give deference to
decisions of a state agency regarding the purpose of a
project sponsored by that entity. See Hoosier Envtl.
Council, Inc. v. U.S. Army Corps of Eng’rs, 105 F. Supp. 2d
953 (S.D. Ind. 2000); see also Anthony v. Quimby, No.
87-8250, 1990 WL 59364, at *6 (E.D. Pa. May 7, 1990).
Finally, substantial deference is given to an agency’s
interpretation of statutes it administers, and particularly
to its own regulations, so long as the interpretation is a
permissible one. Chevron U.S.A., Inc. v. Natural Res. Def.
Council, 467 U.S. 837, 844 (1984); National Wildlife
Federal v. Whistler, 17 F.3d 1341, 1344 Page 11 (8th Cir.
1994); Ford Motor Credit Co. v. Milhollin, 444 U.S. 555,
566 (1980); Thomas Jefferson Univ. v. Shalala, 512 U.S.
504, 512 (1994).
II. FACTUAL HISTORY
The crux of this litigation is the Army Corps’s issuance of
a permit pursuant to section 404 of the CWA and section 10
of the Rivers and Harbors Act authorizing Mills/Mack-Cali
to fill the 7.69 acres of wetlands in connection with the
construction of a project, named the Meadowlands Xanadu
Redevelopment Project (the “Xanadu project”), at the
Continental Airlines Arena site within the Meadowlands
Sports Complex in East Rutherford, New Jersey.
(US-AR003808-33 (Permit No. 2003-00549 (March 18, 2005));
US-AR003845-3992 (Army Corps Memorandum for Record on
Permit Application No. 2004-00549 (March 18, 2005))).[fn5]
A. The NJSEA & the Meadowlands Sports Complex
The Meadowlands Sports Complex, including the site for
which Xanadu is planned, is owned and managed by the New
Jersey Sports and Exposition Authority (“NJSEA”).
(US-AR003845). The NJSEA’s Sports Complex comprises 684
acres of the New Jersey Meadowlands. (US-AR003849). The
Sports Complex is presently home to the Continental
Airlines Arena, Giants Stadium, the Meadowlands Racetrack,
and paved ancillary roadways and parking spaces.
(US-AR003852). The Continental Airlines Arena site at issue
in this litigation occupies 104 acres of the 684-acre
Sports Complex. (US-AR003849). The Continental Airlines
Arena site is comprised of the Continental Airlines Arena
building, an extensive surface parking area, a peripheral
roadway, and internal roadway network, and some land
without construction, Page 12 including wetlands.
(US-AR003849). About 70 acres of the site was in a
developed state at the time of the Army Corps’s decision.
(US-AR003849).
B. The Redevelopment Plan for the Continental Airlines
Arena Site
During the mid-1990’s, the NJSEA undertook a process to
expand the Meadowlands Sports Complex entertainment product
mix and to increase site utilization during the daytime.
(US-AR003870-71). As part of that process, the NJSEA
determined that the redevelopment of the Continental
Airlines Arena site was an appropriate project.
(US-AR003871).
In June 2002, the NJSEA issued a Request for Proposals
(“RFP”) soliciting plans from private companies to
redevelop the 104-acre Continental Airlines Arena site,
which includes the 7.69 acres of wetlands. (Id.). The RFP
stated that the NJSEA envisioned “creating a multi-use
destination at the Arena site that capitalizes on existing
uses at the Meadowlands and expands the product mix in a
manner that is complementary to those uses, without
materially competing with existing business in the
Meadowlands District.” (NJSEA Meadowlands Sports Complex
Redevelopment of the Continental Airlines Arena Site Master
Developer Request for Proposals, at 5 (June 2002)).[fn6]
The RFP further advised potential bidders that the NJSEA
would be “receptive to concepts that incorporate reuse of
the Arena,” that “[a] small wetland occupies approximately
eight (8) acres of the Arena site,” and that interested
developers should bear in mind that one of NJSEA’s
strategic objectives is to “[p]rotect and enhance the
unique ecosystem of the Meadowlands.” (Id. at 5, 7, 20,
24). While initial phases of redevelopment were to be
confined to the Continental Airlines Arena site, potential
bidders could submit plans incorporating later phases of
development on other NJSEA-owned property at the Sports
Page 13 Complex. (Id. at 14; NJSEA Meadowlands Sports
Complex Redevelopment of the Continental Airlines Arena
Site Master Developer Request for Proposals Request for
Additional Information, at 1 (October 14, 2002)).[fn7]
On November 21, 2002, NJSEA selected three developers as
final round bidders: Mills/Mack-Cali, Hartz Mountain
Industries, Inc., and the Westfield Group. (Matthew
Futterman, Three Make the Cut as Arena Site Developers, THE
STAR-LEDGER, Newark, NJ (Nov. 22, 2002)).[fn8] NJSEA
President and CEO George Zoffinger stated that “each of
these plans would create a large number of new jobs, they
each have a destination as part of their plan, and they
each actually have the potential to be built.” (Id.). Only
the Westfield Group’s proposal contemplated the preservation
of the Cedar Creek Wetlands. (US-AR003881). In February
2003, the NJSEA resolved to enter into exclusive
negotiations with Mills/Mack-Cali to redevelop the
Continental Airlines Arena Site pursuant to the Xanadu
proposal. (US-AR007473 (Redevelopment Agreement (Dec. 3,
2003))).
In December 2003, the NJSEA and Mills/Mack-Cali entered
into a Redevelopment Agreement, which was amended in
October 2004. (US-AR007472-7577). The Redevelopment
Agreement delineates the uses for which Mills/Mack-Cali has
the right to redevelop the Continental Airlines Arena site.
(Id.). The Redevelopment Agreement provides that certain
components of the project, including development of a
hotel, office space, and minor league baseball stadium, are
contingent upon “favorable economic and market conditions.”
(US-AR007476-78). Xanadu is a proposed $1.3 billion, 4.96
million square foot shopping, sports, Page 14
entertainment, hotel and office complex. (US-AR003848).
Xanadu was subject to review under New Jersey law. See
N.J.S.A. 5:10-5(x). NJSEA, the New Jersey Meadowlands
Commission, the New Jersey Department of Environmental
Protection, the New Jersey Department of Transportation,
and the New Jersey Transportation Planning Agency each
participated in some stage of a State Environmental Impact
Statement review process, which included preparation of a
Preliminary Draft Environmental Impact Statement (“PEIS”),
circulation of the PEIS for public comment and subjecting
the PEIS to public hearings, and review and submission of
comments and modifications, approval by various agencies of
the State of New Jersey, and ultimately the release of a
Final Environmental Impact Statement in August 2004.
(US-AR009452-9646; US-AR000899-958; US-AR001800-1918).
C. Federal Permit to Fill the Cedar Creek Wetlands[fn9]
1. The Proposed Fill Areas
The Xanadu project requires filling of 7.69 acres of
wetlands under the jurisdiction of the Army Corps. The
proposed fill area of 7.69 acres is comprised of ten
distinct parcels: five at the Xanadu site and five in
adjacent areas where improvements to infrastructure are
planned. (US-AR003846). The largest contiguous parcel is a
5.33 acre area East of the Continental Airlines Arena in
the proposed footprint of the entertainment component of
Xanadu. ((US-AR003846; US-AR003969). Another discrete parcel
is a 1.52 acre strip along the Northern edge of the
Continental Airlines Arena site. (US-AR003846). The
remaining 0.73 acres comprises several smaller patches.
(US-AR003846). The Army Corps described the areas to be
filled as follows:
The wetlands and waterways that would be filled are 1)
fragmented from major Page 15 wetlands in the region
(i.e., surrounded by existing development and roadways); 2)
exhibit contamination levels above the applicable NJDEP
criteria; and 3) heavily disturbed by previous human
activities.
(US-AR003851).
2. The Permit Application
In June 2003, Mills/Mack-Cali applied to the Army Corps for
a permit to fill the 7.69 acres of wetlands in connection
with development of Xanadu.[fn10] (US-AR003845). The Army
Corps issued a jurisdictional determination on November 13,
2003, and, following submission of an amended permit
application by Mills/Mack-Cali reflecting the Army Corps’s
conclusions, issued an amended jurisdictional determination
on July 27, 2004. (US-AR003849-50). An amended permit
application submitted by Mills/Mack-Cali included an
alternatives analysis and a compensatory mitigation plan
proposing preservation of 235 acres of wetlands on the
587-acre Empire Tract. (US-AR003848-49).
The application was deemed complete on July 28, 2004.
(US-AR003854).
3. The Public Hearing and Public Comments
On July 27, 2004, the Army Corps issued a public notice
that described the permit application and announced the
commencement of a public comment period on
Mills/Mack-Cali’s application as well as a public hearing
on August 26, 2004. (US-AR003854-55). The comment period
originally was to terminate on September 7, 2004; however,
upon request by members of the public including certain of
Plaintiffs, the comment period was extended first to
September 14, 2004, and then to September 22, 2004.
(US-AR003854-55). Twenty-three individual members of the
public appeared at the August 26, 2004 public hearing held
by the Army Corps, Page 16 six of whom made oral
presentations, including representatives of Plaintiffs.
(US-AR003855; US-AR003859). Public comments were received
from, inter alia, federal agencies, political leaders, and
members of the public, including Plaintiffs.
(US-AR003856-69). The Army Corps requested certain
supplemental information from Mills/Mack-Cali, which
submitted responsive materials.[fn11]
4. The Permit
On March 18, 2005, the Army Corps issued the Permit, which
authorizes the fill of the 7.69 acres of wetlands, as well
as its Memorandum for Record. (US-AR003808-33 (Permit No.
2003-00549 (March 18, 2005)); US-AR003845-3992 (Army Corps
Memorandum for Record on Permit Application No. 2004-00549
(March 18, 2005))). The Memorandum for Record addresses the
public comments received and contains the Army Corps’s
analysis mandated by the CWA and the NEPA, including the
Army Corps’s “Environmental Assessment” and “Finding of No
Significant Impact.”[fn12] (US-AR003845-3992). Notably, the
Permit imposed as special conditions requirements that
Mills/Mack-Cali provide compensatory mitigation to offset
any impacts from the authorized filling activities.
(US-AR003809-10). Specifically, Mills/Mack-Cali was
required to fund the enhancement of 15.38 acres of wetlands
at a site referred to as the “Secaucus[, New Jersey] High
School Wetland Enhancement Site” and to preserve a site
known as the “Empire Tract,” containing hundreds of acres
of wetlands, by means of causing conveyance in fee to the
Meadowlands Conservation Trust. (Id.). Page 17
III. DISCUSSION
Plaintiffs’ motion for summary judgment raises the
following categories of challenges to the Army Corps’s
issuance of the Permit: (1) the Army Corps violated the
NEPA and regulations thereunder by improperly limiting the
scope of its environmental analysis and erring in its
“FONSI” analysis; (2) the Army Corps violated the CWA and
its regulations by failing to prohibit the destruction of
wetlands where practicable alternatives exist; and (3) the
Army Corps violated the CWA and its regulations by failing
to provide adequate notice and opportunity for comment
regarding documents upon which the Army Corps based its
environmental review. Defendants’ cross-motions for summary
judgment argue that the Army Corps’s issuance of the Permit
complied with NEPA, the CWA, the Rivers and Harbors Act, as
well as the implementing regulations promulgated under
each.
A. The National Environmental Policy Act
Plaintiffs argue that the Army Corps violated the NEPA by
improperly limiting the scope of its environmental analysis
and that its issuance of a FONSI was not in accordance with
law. Defendants argue that the Army Corps’s NEPA analysis
was proper. Specific arguments raised by Plaintiff are
addressed below.
1. Legal Framework
The express purposes of the NEPA are:
To declare a national policy which will encourage
productive and enjoyable harmony between man and his
environment; to promote efforts which will prevent or
eliminate damage to the environment and biosphere and
stimulate the health and welfare of man; to enrich the
understanding of the ecological systems and natural
resources important to the Nation; and to establish a
Council on Environmental Quality.
42 U.S.C. § 4321; see also Twp. of Belleville v. Fed.
Transit Admin., 30 F. Supp. 2d 782, 791 Page 18 (D.N.J.
1998). Toward that end, the NEPA requires, in relevant
part, “that federal agencies assess the effects of proposed
major federal actions on the human environment.” Dunn v.
United States, 842 F.2d 1420, 1426 (3d Cir. 1988). Under
the NEPA, “it is the continuing responsibility of the
Federal Government to use all practicable means [to] attain
the widest range of beneficial uses of the environment
without degradation, risk to health or safety, or other
undesirable and unintended consequences.” 42 U.S.C.
§ 4331(a),(b)(3). Regulations promulgated by the
Council on Environmental Quality, 40 C.F.R. 1500-08,
provide guidance for the application of the NEPA, and these
regulations are entitled to substantial deference. See
Robertson v. Methow Valley Citizens Council, 490 U.S. 332,
355-56 (1989); Marsh v. Or. Natural Res. Council, 490 U.S.
360, 372 (1989).
By imposing “a substantive obligation upon all federal
agencies to balance the environmental considerations and
goals of the Congress along with the traditional factors of
public interest particular to each agency’s mandate,” Twp.
of Belleville, 30 F. Supp. 2d at 791 (quotations and
citations omitted), the NEPA focuses “national policymaking
on the interdependence between human beings and the
environment,” Dunn, 842 F.2d at 1426 (3d Cir. 1988). The
NEPA is essentially a procedural statute and does not
require an agency to reach a particular result. Robertson,
490 U.S. at 350-51; Vermont Yankee Nuclear Power Corp. v.
NRDC, 435 U.S. 519, 558 (1978) (stating that the NEPA’s
mandate is “essentially procedural . . . to insure a fully
informed and well-considered decision”). Indeed, federal
agencies are not required “to elevate environmental
concerns over other appropriate considerations”; rather,
the NEPA mandates “only that the agency take a `hard look’
at the environmental consequences before taking a major
action.” Baltimore Gas. & Elec. Co., 462 U.S. at 97. Page
19
The NEPA requires federal agencies to prepare analyses in
assessing the effects of proposed agency action. First, an
agency must prepare an Environmental Assessment, which is a
“concise public document” containing “sufficient evidence
and analysis for determining whether to prepare an
environmental impact statement or a finding of no
significant impact.” 40 C.F.R. § 1508.9 (2005)
(Council on Environmental Quality guidelines for
implementing the NEPA). Second, after preparing that
Environmental Assessment, the agency must determine whether
the subject proposed action is a “major federal action[]
significantly affecting the quality of the human
environment.” See 40 C.F.R. §§ 1501.3,
1501.4(c), 1501.4(e); 42 U.S.C. § 4332(2)(C); see
also Dunn, 842 F.2d at 1427. If a significant impact is
found, the agency must prepare an Environmental Impact
Statement. See 40 C.F.R. §§ 1501.3,
1501.4(c), 1501.4(e); see also Dunn, 842 F.2d at 1427. If,
however, that agency determines that the proposed action
will not have a significant impact, the agency must set
forth its reasons in a Finding of No Significant Impact
(“FONSI”). See 40 C.F.R. §§ 1501.3,
1501.4(c), 1501.4(e), 1508.13; see also Dunn, 842 F.2d at
1427.
Generally, the issuance of a permit under Section 404 of
the Clean Water Act is considered a major federal action
under the NEPA. See, e.g., Tillamook County v. U.S. Army
Corps of Eng’rs, 288 F. 3d 1140, 1142 (9th Cir. 2002);
Stewart v. Potts, 996 F. Supp. 668, 672 (S.D. Tex. 1998).
The Army Corps has adopted guidelines, approved by the
Council on Environmental Quality, for implementing the
NEPA. See 33 C.F.R. Part 325, Appx. B;[fn13] see also 52
Fed. Reg. 22,518, 22,520 (June 12, 1987) (Council on
Environmental Quality stating that the Army Corps’s NEPA
regulations are “generally within reasonable implementing
agency Page 20 discretion”).
2. The Army Corps Properly Determined the Scope of NEPA
Review
Plaintiffs argue that the Army Corps violated the NEPA by
limiting its Environmental Assessment to the environmental
impacts of the discharge of the clean fill into the wetlands
and refusing to consider both the environmental impacts of
the portions of the project located on that fill as well as
the upland portions of the project. (Pltfs’ Br. at 21-28).
Defendants argue that the Army Corps properly limited its
review to the issue of the fill of wetlands authorized by
the Permit consistent with the requirements of the NEPA and
the Army Corps’s implementing regulations.
In the instant matter, the specific activity requiring a
Department of the Army permit is the filling of the 7.69
acres of wetlands. See, e.g., Mo. Coal. for the Env’t v.
Corps of Eng’rs, 866 F.2d 1025, 1033 (8th Cir. 1989),
overruled on other grounds, Goos v. ICC, 911 F.2d 1283 (8th
Cir. 1990); Wetlands Action Network v. United States Army
Corps of Eng’rs, 222 F.3d 1105, 1115-17 (9th Cir. 2000);
cf. 53 Fed. Reg. 3120, 3121 (Feb. 3, 1988). In situations
where a permit applicant proposes to conduct activity
requiring a Department of the Army permit as a component of
a larger project, the Army Corps’s NEPA regulations direct
the Army Corps District Engineer to “establish the scope of
the NEPA document (e.g., the E[nvironmental [A]ssessment]
or E[nvironmental] I[mpact] S[tatement]) to address the
impacts of the specific activity requiring the D[epartment
of the]A[rmy] permit and those portions of the entire
project over which the district engineer has sufficient
control and responsibility to warrant Federal review.” See
33 C.F.R. pt. 325, App. B § 7.b(1) (emphasis
added)); see also 40 C.F.R. § 1508.18 (Council on
Environmental Quality implementing regulations defining a
“major federal action” Page 21 triggering the NEPA to
include “actions with effects that may be major and which
are potentially subject to Federal control and
responsibility”). The Army Corps’s NEPA regulations provide
guidance to determine whether there is sufficient federal
control and responsibility to warrant federal review beyond
the fill activity:
The district engineer is considered to have control and
responsibility for portions of the project beyond the
limits of Corps jurisdiction where the Federal involvement
is sufficient to turn an essentially private action into a
federal action. Theses are cases where the environmental
consequences are essentially products of the Corps permit
action. Typical factors to be considered in determining
whether sufficient “control and responsibility” exists
include:
1. Whether or not the regulated activity compromises
“merely a link” in a corridor type project (e.g. a
transportation or utility transmission project).
2. Whether there are aspects of the upland facility in
the immediate vicinity of the regulated activity which
affect the location and configuration of the regulated
activity.
3. The extent to which the entire project will be within
Corps jurisdiction.
4. The extent of cumulative control and responsibility.
See 33 C.F.R. pt. 325, App. B § 7.b(2). Further, the
regulations explain that “Federal control and responsibility
will include the portions of the project beyond the limits
of Corps jurisdiction where the cumulative Federal
involvement of the Corps and other Federal agencies is
sufficient to grant legal control over such additional
portions of the project.” Id. at § 7.b(2)(A). Such
situations arise where “the environmental consequences of
the additional portions of the projects are essentially
products of Federal financing, assistance, direction,
regulation, or approval.” Id.
The determination of whether there is sufficient federal
control and responsibility to expand the scope of NEPA
review beyond the specific permitted activity is a matter
left to the discretion of the Army Corps district engineer
based on the facts and circumstances of the Page 22
individual action under review. See 53 Fed. Reg. at 3122,
3127.[fn14] Further, the Army Corps’s determination of the
appropriate scope of its NEPA analysis, which involves the
interpretation and application of the Army Corps’s NEPA
regulations as well as the exercise of regulatory
discretion conferred under those regulations, is entitled
to deference by a reviewing court. See Wetlands Action
Network, 222 F.3d at 1115-17 (“The Corps’ determination of
the appropriate scope of the environmental review process
is entitled to deference.”).
In this case, the Army Corps “determined that there is
insufficient federal control and responsibility over the
upland portions of the Project or over the entire project
to expand the scope of review for a
U[nited]S[tates]A[rmy]C[orps of]E[ngineers] permit decision
beyond the limited proposed fill in wetlands and open water
areas. . . .” (US-AR003956). As explained below, the Court
concludes that this determination reflects a proper
exercise of discretion, and the rationale for it is
well-supported by the record.
In conducting its analysis, the Army Corps reviewed the
applicable regulatory framework, including the regulations
at 33 C.F.R. Part 325, Appx. B, summarized by the Court
supra, which Page 23 guide the Army Corps’s determination
of “whether federal jurisdiction over a permitted activity
of limited scope may lead to expansive NEPA review over the
entire project.” (US-AR003956). Citing 33 C.F.R. Part 325
Appx. B § 7.b, the Army Corps explained that
“[u]nder USACE regulations, as a general matter, the Corps’
NEPA review is limited to analyzing the impacts of the
`specific activity requiring the D[epartment of the]A[rmy]
permit, unless some exceptional circumstance justifies the
expansion of the NEPA scope of analysis to cover the upland
(i.e., non-jurisdictional) portions of a project.”
(US-AR003957). The “specific activity” “is the discharge of
fill material into 7.69 acres of wetlands and other waters
of the United States lying within the Continental Arena
Site.” (US-AR003957). The Army Corps applied the four
factors set forth in 33 C.F.R. pt. 325, App. B §
7.b(2), concluding that: “[t]he regulated activity in the
instant case is not a corridor link”; while “[a]spects of
an upland facility affect the proposed discharge of fill
material in this case . . ., less than 8% of the project by
area is under USACE jurisdiction as waters of the United
States”; “beyond USACE legal jurisdiction over the waters
of the United States, the Corps of Engineers has no legal
control over the subject proposed project, and only minimal
potential de facto Corps of Engineers control and
responsibility over the applicant’s entire project.”
(US-AR003957). Ultimately, the Army Corps determined that
it would not be “appropriate, reasonable, or practicable
for the Corps to try to assert such de facto control over
the upland portions of the proposed project in this permit
case.” (US-AR003957). Applying the standards set forth in
the regulations, the Army Corps concluded that “there is
not sufficient federal regulatory control and
responsibility over the upland portions of the project, or
over the project as a whole, to warrant `federalizing’ the
entire project by making it the subject of a Federal NEPA
review.” (US-AR003958). Consequently, the Army Corps
determined that “it Page 24 would not be appropriate to
expand the USACE NEPA analysis beyond the impacts of the
permitted activity in the waters of the United States.”
(US-AR003957).
First, Plaintiffs argue that the Army Corps erred in
failing to consider the impacts of the portions of the
project to be located on the permitted fill. Specifically,
Plaintiffs cite to examples contained in the Army Corps’s
NEPA regulations, which provide in relevant part:
if an applicant seeks a DA permit to fill waters or
wetlands on which other construction or work is proposed,
the control and responsibility of the Corps, as well as
its overall Federal involvement would extend to the
portions of the project to be located on the permitted
fill. However, the NEPA review would be extended to the
entire project, including portions outside waters of the
United States, only if sufficient Federal control and
responsibility over the entire project is determined to
exist. . . .
33 C.F.R. pt. 325, App. B § 7.b(3). Plaintiffs argue
that the Army Corps’s “control and responsibility
unquestionably extends to the fill itself and `to the
portions of the project to be located on the permitted
fill'” and that the Army Corps breached its duty by failing
to consider the impacts of the portions of the Xanadu
development to be located on the 7.69 acres of clean fill.
(Pltfs’ Br. at 21-25). Plaintiffs’ argument, however,
ignores both the plainly discretionary nature of a
determination of the scope of NEPA analysis under the Army
Corps’s regulations as well as the case-specific,
factor-based analysis that those regulations require. See
Wetlands Action Network, 222 F.3d at 1115; 33 C.F.R. pt.
325, App. B § 7.b(2). Contrary to the Army Corps’s
interpretation and application of its own regulations,
under Plaintiffs’ interpretation a provision that is plainly
set forth merely as an “example” would control the outcome
in effectively all cases where a permit applicant proposes
to conduct activity requiring a permit as a component of a
larger project. Such an interpretation is contrary to the
plain language of the Page 25 regulations. The
regulations require that NEPA review “address the impacts
from the specific activity requiring a D[epartment of
the]A[rmy] permit and those portions of the entire project
over which the district engineer has sufficient control
and responsibility to warrant Federal review” and require
“careful analysis of all facts and circumstances
surrounding the relationship.” Wetlands Action Network, 222
F.3d at 1117; see 33 C.F.R. Part 325, App. B §
7.b(1). That is precisely the standard applied in this
case.
Second, Plaintiffs argue that the Army Corps erred in
failing to consider the environmental impacts of the upland
portions of the project. Plaintiffs argue that “the Xanadu
development is located on the permitted fill and the filing
[sic.] of these 7.69 acres of wetlands serves no purpose
independent of the remaining 66% of the entertainment
complex,” and that, consequently, the environmental effects
of the remaining portions of the project must be assessed.
(Pltfs’ Br. 25-28). In support, Plaintiffs cite to a
portion of the regulations explaining that Federal
involvement is sufficient to turn an essentially private
action into a federal action when “the environmental
consequences are essentially products of the Corps permit
action.” 33 C.F.R. Part 325, App. B § 7.b(2).
Plaintiffs’ argument misinterprets the cited provision.
The standard set forth in the regulations cannot be reduced
to a test of whether upland portions of a project have a
utility independent of the permitted activity portion of
the project. See Wetlands Action Network, 222 F.3d at
1111-12. Linkage “between the permitted activity and the
specific project planned is the type of `interdependence’
that is found in any situation where a developer seeks to
fill a wetlands as part of a large development project.”
Id. at 1116. If that type “of connection alone were
sufficient to require that an entire project falls within
the purview of the Corps’ jurisdiction, the Page 26 Corps
would have jurisdiction over all such projects.” Id. at
1116-17. Rather, consistent with the Army Corps’s NEPA
regulations as set forth above, “[d]eciding whether federal
and non-federal activity are sufficiently interrelated to
constitute a single `federal action’ for NEPA purposes will
generally require a careful analysis of all facts and
circumstances surrounding the relationship.” Id. at 1117
(internal quotations and citation omitted).
The Court concludes that the Army Corps’s discussion of
its analysis of the appropriate scope of review under NEPA
demonstrates that the Army Corps properly “considered the
relevant factors and articulated a rational connection
between the facts found and the choice made.” Baltimore Gas
& Elec. Co., 462 U.S. at 105. Similarly, the Court has not
found “a clear error of judgment.” Motor Vehicle Mfrs.
Ass’n of U.S., Inc., 463 U.S. at 43. Consequently, given
the deference that an agency’s determination of its own
jurisdiction is due, the Court concludes that the Army
Corps’s determination regarding the scope of its NEPA
review is not arbitrary and capricious, an abuse of
discretion, or contrary to law. See Wetlands Action
Network, 222 F.3d at 1118.
3. The Army Corps Properly Considered Impacts, Benefits,
and Alternatives
Plaintiffs argue that the Army Corps made no effort to
equate the scope of its impacts analysis with the scope of
its benefits or alternatives analysis. Instead, Plaintiffs
claim that, whereas the Army Corps considered the 7.69
acres of wetland fill to find no significant impact, it
considered the entire Xanadu facility when discounting
alternatives and weighing the benefits of the project.
(Pltfs’ Br. at 30-32). Defendants argue that the Army
Corps’s analysis of impacts, benefits, and alternatives
under the NEPA was proper.
The Army Corps’s NEPA regulations require that it include
in an Environmental Page 27 Assessment a discussion of
“reasonable alternatives” to the proposed development. 33
C.F.R. Part 325 Appx. B § 7.a. The Army Corps must
consider the following “reasonable alternatives” for the
purposes of NEPA: “issue the permit, issue with
modifications or deny the permit.” 33 C.F.R. Part 325,
Appx. B § 7.a; see also Citizens Against Burlington,
Inc. v. Busey, 938 F.2d 190, 199 (D.D.C. 1991). Further,
these regulations require that “[i]n all cases, the scope
of analysis used for analyzing both impacts and
alternatives should be the same scope of analysis used for
analyzing the benefits of a proposal.” 33 C.F.R. Part 325
Appx. B § 7.b(3). While there may be some overlap,
the reasonable alternatives analysis required by NEPA is
distinct from the “practicable alternatives” analysis
required under Section 404 of the CWA, which is discussed
below. See 40 C.F.R. § 230.10(a); Sylvester v. U.S.
Army Corps of Eng’rs, 882 F.2d 407, 410 n. 4 (9th Cir.
1989) (citing 33 C.F.R. § 320.4(a)). However, the
regulations provide that the NEPA Environmental Assessment
should be combined with other required documents, including
those prepared to comply with Section 404 of the CWA. 33
C.F.R. Part 325 Appx. B § 7.a. The record reflects
that the Army Corps properly considered each of the
alternatives required by the NEPA regulations, and that the
scope of alternatives analysis was consistent with the
scope of its analysis for impacts and benefits.
(US-AR003901 (no action alternative)); (US-AR003959
(considering permit conditions)); (US-AR003808-11(imposing
conditions)).
The instances of use of a broad scope of analysis for
alternatives and benefits to which Plaintiffs cite do not
evidence a violation of 33 C.F.R. Part 325 Appx. B §
7.b(3)’s requirement that the same scope be used for
analyzing impacts, alternatives, and benefits. Rather,
these examples reflect the appropriate scope of analysis
under the CWA. For example, Plaintiffs note that the Army
Corps held that “the scope of the Corps’ review under NEPA
is limited to the 7.69 Page 28 acres of wetland fill”
(US-AR003956), which they argue is in stark contrast to the
Army Corps’s statements that the Army Corps “utilized a
minimum site size of 115 acres for its 2002 offsite
alternatives analysis.” (US-AR003877). Similarly,
Plaintiffs argue that the Army Corps “compared the social
and economic benefits of the Xanadu project as a whole
against the alternative of moving some project components
off the Arena site.” (Pltfs’ Reply Br. at 7-8 (citing
US-AR003887)). However, such analyses of on-site and
off-site alternatives are conducted to comply with the
CWA’s requirement that the Army Corps evaluate “practicable
alternatives,” not the NEPA regulations’ requirement that
the Army Corps evaluate “reasonable alternatives.” See 40
C.F.R. § 230.10(a); see also Sylvester, 882 F.2d at
410 n. 4 (citing 33 C.F.R. § 320.4(a)) (stating that
the Army Corps’s CWA regulations require it to “consider a
broad range of interests that are not included under the
`reasonable alternative’ analysis under the NEPA”).
Further, Plaintiffs argue that the Army Corps’s discussion
of a “no action” alternative, which is a NEPA concept,
reveals that the Army Corps’s alternatives and benefits
analysis considered the project as a whole, not just the
7.69 acres of fill. (Pltfs’ Reply Br. at 6-7 (citing
US-AR003901)). However, the Army Corps makes clear in its
analysis that the benefits discussed in connection with
evaluation of the “no action” alternative are the
incremental benefits representing the difference between
issuing and denying a permit, which does focus on the
activity of filling the 7.69 acres of wetlands.[fn15]
(US-AR003901). Page 29
Consequently, the Court concludes that the Army Corps
properly analyzed impacts, benefits, and alternatives under
the NEPA.
4. The Army Corps Properly Assessed Impacts
Plaintiffs argue that the Army Corps’s finding of no
significant impact (“FONSI”) is not in accordance with law
because the Army Corps failed to analyze the potential
environmental effects of the Xanadu project. (Pltfs’ Br. at
31-34).
A plaintiff “is obligated to demonstrate specifically how
and why . . . finding of `no significant impact’ was
somehow erroneous or unreasonable.” Lower Alloways Creek v.
Pub. Serv. Elec. & Gas Co., 687 F.2d 732, 746-47 (3d Cir.
1982); see also Citizens Advisory Comm. on Private Prisons,
Inc. v. U.S. Dep’t of Justice, 197 F. Supp. 2d 226, 241
(W.D. Pa. 2001); Twp. of Belleville, 30 F. Supp. 2d at
801-02. Plaintiffs argue that “[t]he potential
environmental effects of the Xanadu retail and
entertainment complex are unknown because the Corps has not
fulfilled its duty to analyze them[; h]owever, the size and
character of the Xanadu development suggest that the
environmental impacts will be vast.”[fn16] (Pltfs’ Br. at
32). Further, Plaintiffs argue that the Army Corps’s
“decision not to prepare an environmental impact statement
rested Page 30 entirely on the agency’s illegal limitation
of the scope of the environmental assessment”[fn17] and
that, had the Army Corps considered the environmental
impacts of the entire project, the Army Corps “undoubtedly
would have concluded that an environmental impact statement
was necessary.” (Pltfs’ Br. at 34). In addition, Plaintiffs
argue that the length of the environmental assessment
document belies the finding of no significant impact.
(Pltfs’ Br. at 33). Such unsupported, conclusory
allegations fail to demonstrate how and why the Army
Corps’s finding of no significant impact was unreasonable
or erroneous, and are not adequate to support overturning
the Army Corps’s finding of no significant impact. See,
e.g., Pres. Endangered Areas of Cobb’s History Inc. v. U.S.
Army Corps of Eng’rs, 916 F. Supp. 1557, 1565 (N.D. Ga
1995) (rejecting conclusory arguments as insufficient to
show that the Army Corps’s FONSI was arbitrary and
capricious).
The only arguments Plaintiffs make with any specificity
are that the FONSI contradicts the North Jersey
Transportation Planning Authority, Inc.’s (“NJTPA”)[fn18]
finding of regional significance and that the Army Corps
failed to consider long-term effects of the permit.
However, neither argument is supported by the record.
Plaintiffs’ argument that the FONSI was in conflict with
the NJTPA’s finding that the Xanadu project is a
regionally significant project is premised on a conflating
of the Clean Air Act’s (the “CAA”) transportation
conformity requirements and its general conformity Page
31 requirements, and the conclusion of this argument lacks
record support.
First, the phrase “regionally significant” has different
meanings when qualifying the term “project” under the CAA’s
transportation conformity requirements and when qualifying
the term “action” under the CAA’s general conformity
requirements.[fn19] The NJTPA determination at issue was
its classification of the Xanadu project as a “regionally
significant non-federally funded project” pursuant to its
annual transportation conformity analysis. Under the
transportation conformity rules,
“[r]egionally significant project means a transportation
project (other than an exempt project) that is on a
facility which serves regional transportation needs (such
as . . . major planned developments such as new retail
malls, sports complexes, etc., . . .) and would normally
be included in the modeling of a metropolitan area’s
transportation network, including at a minimum all
principal arterial highways and all fixed guideway transit
facilities that offer an alternative to regional highway
travel.” Page 32 40 C.F.R. § 93.101; 40 C.F.R.
§ 93.100. Conversely, under the general conformity
rules, a “[r]egionally significant action means a Federal
action for which the direct and indirect emissions of any
pollutant represent 10 percent or more of a nonattainment
or maintenance area’s emission inventory for that
pollutant.” 40 C.F.R. § 93.152; see also 40 C.F.R.
§ 93.152. Thus, contrary to Plaintiffs’ argument,
the NJTPA’s classification of the Xanadu project as a
“regionally significant non-federally funded project”
pursuant to its annual transportation conformity analysis
does not reflect a determination of the anticipated
emissions resulting from the project. Consequently,
Plaintiffs’ argument that the FONSI was in conflict with
the NJTPA’s finding that the Xanadu project is a
regionally significant project lacks either merit or
evidentiary support.
Likewise, Plaintiffs’ argument that the Army Corps
violated NEPA and the implementing regulations by refusing
to examine long-term effects in contravention of a mandate
that it consider “[b]oth short- and long-term effects” of
the permit is contradicted by the record. (Pltfs’ Br. 28-30
(citing 40 C.F.R. § 1508.27(a))). Specifically,
Plaintiffs point to a statement in the Memorandum for
Record that “[p]otential indirect impact from filling of
the 6.42 acres of common reed dominated wetlands may
include increased nutrient and sediment loads to the
Hackensack River system during construction” (US-AR003905),
and argue that this evidences that the Army Corps ignored
its duty to conduct a long term assessment of the impacts
on air quality pursuant to the Clean Air Act.
The record belies Plaintiffs’ arguments. First, Plaintiffs
rely on a single reference to the potential impact of water
runoff “during construction” to support the allegation that
the Army Corps improperly limited the temporal scope of its
analysis to consideration of only short-term effects. The
particular discussion Plaintiffs reference does address
potential short-term effects of Page 33 water runoff.
However, elsewhere the Memorandum for Record analyzes the
long-term effects of water runoff. (US-AR003920-23). Thus,
this reference to construction impacts does not support a
conclusion that the Army Corps considered only short term
impacts. Rather, in connection with the analysis of
long-term effects of water runoff, it shows that the Army
Corps properly considered both short-term and long-term
effects.
Second, the record reflects that the Army Corps likewise
conducted an assessment of both long-term and short-term
impacts on air quality. (US-AR003930-33). In the Memorandum
for Record, the Army Corps discusses short-term impacts on
air quality, such as those that may result from emissions
from construction vehicles. (US-AR003930-32). However, the
Army Corps also considered that “[t]he Meadowlands Xanadu
Redevelopment Project will contribute to regional air
emissions in the region from mobile sources.”
(US-AR003931). Based on air emissions data submitted by the
applicant, the Army Corps determined that “the activities
proposed under this permit will not exceed de minimis
levels of direct emissions of a criteria pollutant or its
precursors and are exempted under 40 CFR 93.153.” (Id.).
Further, the Army Corps cited analysis by NJTPA in
determining that “the Xanadu Project will not have a
significant indirect or cumulative effect on air quality”
in the region. (Id.). Ultimately, the Army Corps concluded
that “[e]mission and impact analyses completed for the
Project show that both mobile sources and stationary
sources during project operation, as well as the
construction emissions relevant to federal activities, will
all be in compliance with NAAQS or Federal Conformity
Rules.” (US-AR003932).
Consequently, the Court concludes that Plaintiffs have
failed to demonstrate that there is any factual support in
the record for Plaintiffs’ claims that the Army Corps
improperly limited Page 34 the temporal scope of its
analysis to only short-term effects, that the FONSI
conflicts with a finding of the NJTPA, or that the FONSI
otherwise was not in accordance with law.
5. Conclusion
For the reasons addressed above, Plaintiffs’ motion for
summary judgment on their claims asserted under the NEPA is
denied, and Defendants’ cross-motions for summary judgment
on Plaintiffs’ NEPA claims are granted.
B. The Clean Water Act
Plaintiffs argue that the Army Corps violated the Clean
Water Act and its regulations by (1) failing to prohibit
the destruction of wetlands where a practicable alternative
exists and (2) committing prejudicial procedural error by
relying on documents submitted by Mills/Mack-Cali after the
close of the public comment period without reopening the
public comment period. Defendants argue that the Army
Corps’s CWA analysis was in accordance with law and that
the Army Corps complied with procedural requirements. The
specific arguments raised by Plaintiffs are addressed
below.
1. The Army Corps’s Alternatives Analysis Was Neither
Arbitrary and Capricious nor Contrary to Law
a. Regulatory Framework
The CWA establishes a regulatory regime designed to
“restore and maintain the chemical, physical, and
biological integrity of the Nation’s waters.” 33 U.S.C.
§ 1251(a). To achieve this goal, the CWA prohibits
discharge of any pollutant, including dredged or fill
material, into navigable waters, which include certain
wetlands,[fn20] unless authorized by a CWA permit issued
Page 35 by the Army Corps. 33 U.S.C. § 1311(a).
Section 404 of the CWA authorizes the Army Corps to “issue
permits, after notice and opportunity for public hearings,
for the discharge of dredged or fill material into the
navigable waters at specified disposal sites.” 33 U.S.C.
§ 1344(a). CWA regulations establish a case-by-case
review process for the issuance of individual permits that
involves site-specific documentation and review,
opportunity for public hearing, public interest review, and
a formal determination. See 33 C.F.R. Pts. 323, 325. The
public interest review for an individual permit requires
that the Army Corps balance “benefits which reasonably may
be expected to accrue from the proposal” against the
proposal’s “reasonably foreseeable detriments.” 33 C.F.R.
§ 320.4(a)(1). A permit will not be granted if
contrary to the public interest. Id.
[…]