Eva Fritiofson v. Clifford Alexander, Jr., Secretary of the Army (1985)

In so holding, we pause to note that “[w]e have never said that deficiencies in an EA can only be cured by preparing an EIS, and that is not the law.” Fritiofson v. Alexander, 772 F.2d 1225, 1248 (5th Cir.1985) (overruled on unrelated grounds by Sabine River Auth. v. U.S. Dep’t of Interior, 951 F.2d 669 , 677 (5th Cir.1992)).

Such a study should identify: 50 (1) the area in which effects of the proposed project will be felt; (2) the impacts that are expected in the area from the proposed project; (3) other actions-past, proposed, and reasonably foreseeable-that have had or are expected to have impacts in the same area; (4) the impacts or expected impacts from these other actions; and (5) the overall impact that can be expected if the individual impacts are allowed to accumulate. 51 Fritiofson v. …

Fritiofson v. Alexander, 772 F.2d 1225, 1245 (5th Cir.1985), abrogated on other grounds, Sabine River Auth. v. United States Dep’t of Interior, 951 F.2d 669 (5th Cir.1992), cert. denied, 506 U.S. 823 , 113 S.Ct. 75 , 121 L.Ed.2d 40 (1992).

These regulations are entitled to substantial deference, Robertson, 109 S.Ct. at 1848 , and "are binding on federal agencies." Fritiofson v. Alexander, 772 F.2d 1225, 1236 (5th Cir.1985). 35 The CEQ regulations permit federal agencies to make a preliminary "Environmental Assessment" ("EA") aimed at determining whether the environmental effects of a proposed action are "significant." 40 C.F.R. §§ 1501.3 , 1501.4, 1508.9, 1508.27 (1984).

These regulations are entitled to substantial deference, Robertson, 109 S.Ct. at 1848 , and “are binding on federal agencies.” Fritiofson v. Alexander, 772 F.2d 1225, 1236 (5th Cir.1985).

Fritiofson v. Alexander, 772 F.2d 1225, 1239-40 (5th Cir.1985); John v. State of Louisiana, 757 F.2d 698 , 706 n. 4 (5th Cir.1985).

This case is more like Fritiofson v. Alexander, in which we explained that the “unique and fragile nature of wetland areas” means that incremental impacts are more likely to compound into a cumulatively significant effect. 772 F.2d 1225, 1246 (5th Cir. 1985), abrogated on other grounds by Sabine River, 951 F.2d 669 .

Fritiofson v. Alexander, 772 F.2d 1225, 1234, 1237 (5th Cir. 1985) (finding the EPA acted arbitrarily when it failed to analyze the cumulative impacts of a project on wetlands).

Similarly, while the CEQ regulations that the City points to are binding on federal agencies, see Fritiofson v. Alexander, 772 F.2d 1225, 1236 (5th Cir.1985), they do not mandate the preparation of an EIS in this case.

We have explained: “[A] meaningful cumulative-effects study must identify: (1) the area in which effects of the proposed project will be felt; (2) the impacts that are expected in that area from the proposed project; (3) other actions — past, proposed, and reasonably foreseeable — that *358 have had or are expected to have impacts in the same area; (4) the impacts or expected impacts from these other actions; and (5) the overall impact that can be expected if the individual …

However, both Public Citizen and this case turn on whether the environmental consequences of another governmental entity's independent action should be treated as an "indirect effect" of a prior action by a different agency. 13 This is not to imply that the absence of a proposal for a related action means that it can automatically be excluded from NEPA consideration See Fritiofson v. Alexander, 772 F.2d 1225, 1243 (5th Cir.1985). 14 We note too that the Corps concluded that …

Fritiofson v. Alexander, 772 F.2d 1225, 1238 (5th Cir. 1985) (holding that intervening Supreme Court decisions require reconsideration of prior practice); EEOC v. Luce, Forward, Hamilton & Scripps, 303 F.3d 994 , 1002 (9th Cir. 1992) (holding that reconsideration is necessary when intervening Supreme Court decisions undermine existing precedents).

Denzler v. Questech, Inc., 80 F.3d 97, 101 (4th Cir. 1996); Fritiofson v. Alexander, 772 F.2d 1225, 1239 (4th Cir. 1985).

Rather, they intend to submit the remaining fact questions to the district court for resolution on the existing record.” Fritiofson v. Alexander, 772 F.2d 1225, 1239 (5th Cir.1985).

Fritiofson v. Alexander, 772 F.2d 1225, 1239 (5th Cir.1985).

The plaintiffs cite Fritiofson v. Alexander, 772 F.2d at 1244, for the proposition that “concluso-ry statements” by the Corps that it has considered cumulative impacts are insufficient to show compliance with the cumulative impact requirements.

Cf. Fritiofson v. Alexander, 772 F.2d 1225, 1248 (5th Cir.1985).

Cf. Fritiofson v. Alexander, 772 F.2d 1225, 1248 (5th Cir.1985).

Sloop Clearwater, 836 F.2d at 764 (citing Fritiofson v. Alexander, 772 F.2d 1225, 1242 (5th Cir.1985)).

Sloop Clearwater, 836 F.2d at 764 (citing Fritiofson v. Alexander, 772 F.2d 1225, 1242 (5th Cir.1985)).

Fritiofson v. Alexander, 772 F.2d 1225, 1242 (5th Cir.1985).

Fritiofson v. Alexander, 772 F.2d 1225, 1242 (5th Cir.1985).

Plaintiffs cite a number of cases in support of their first argument, including Heartwood, Inc. v. United States Forest Serv., 230 F.3d 947, 949 (7th Cir.2000); Tyler v, Cisneros, 136 F.3d 603, 608 (9th *1303 Cir.1998); Sugarloaf Citizens Ass’n v. FERC, 959 F.2d 508, 512 (4th Cir.1992); Fritiofson v. Alexander, 772 F.2d 1225, 1236 (5th Cir.1985).

See Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989 , 994 (9th Cir.2004) (assessing direct cumulative effects “without regard to the other projects in the ... watershed”); Grand Canyon Trust v. FAA, 290 F.3d 339, 345 (C.A.D.C.2002) (concluding that the FAA analyzed only the incremental increase in noise pollution by a replacement airport, not the “total noise impact” on the area); Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800 , 810 (9th Ci…

Fritiofson v. Alexander, 772 F.2d 1225, 1245 (5th Cir.1985).

Kleppe v. Sierra Club, 427 U.S. 390, 407-08 , 96 S.Ct. 2718, 2729 , 49 L.Ed.2d 576 (1976); and Fritiofson v. Alexander, 772 F.2d 1225, 1242-43 (5th Cir.1985).

Save the Yaak Committee v. Block, 840 F.2d 714, 721 (9th Cir.1988); Fritiofson v. Alexander, 772 F.2d 1225, 1243 (5th Cir.1985); 40 C.F.R. §§ 1508.7 , 1508.25(c)(3). 39 Cumulative impact “is the impact on the environment that results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.

Fritiofson v. Alexander, 772 F.2d 1225, 1238 (5th Cir.1985).

But while the EA’s discussion of the required permitting factors can and should be brief, it must also be sufficient to demonstrate “reasoned decision making” and cannot omit “a significant environmental concern.” Fritiofson v. Alexander, 772 F.2d 1225, 1236 (5th Cir. 1985) (citing Foundation on Econ.

(D.E. 39 at 19; D.E. 38 at 29-30.) As noted above, however, the record reflects that the Corps rejected this alternate property not just for this reason, but because it would "result in environmental impacts . . . and the likely requirement for additional mitigation," and thus was not "the least environmentally damaging practicable alternative for the proposed project." (A.R. 369.) There is no reason to doubt the Corps' analysis of the environmental impact of alternatives. […

Epstein Family P’ship, 13 F.3d at 771-72 (“remandfing] case to the district court to strike from its injunction the catch-all provision enjoining all future encroachments” on plaintiffs land that violate agreement between parties because “blanket prohibition against future interference with an agreement that has been interpreted in only one respect does not give [defendant] notice of all other conduct that is potentially unlawful”); Fritiofson v. Alexander, 772 F.2d 1225, 12…

Fritiofson v. Alexander, 772 F.2d 1225, 1238 (5th Cir.1985), overruled on other grounds by Sabine River Auth. v. U.S. Dept. of Interior, 951 F.2d 669 (5th Cir.1992).

Fritiofson v. Alexander, 772 F.2d 1225, 1248 (5th Cir.1985) (a court may order the preparation of an EIS if it finds that the project may have significant effect on human environment; in absence of such an express finding, the proper1 remedy is to remand the decision to the agency to reconsider its determination of known significant environmental impact in light of the proper standards). 201 .

Judicial Determination “The purpose of an EA is to ‘provide sufficient evidence and analysis for determining whether to prepare an [EIS].’ ” Sabine River Auth. v. U.S. Dep’t of Interior, 951 F.2d 669 , 677 (5th Cir.1992) (quoting Fritiofson v. Alexander, 772 F.2d 1225, 1236 (5th Cir.1985)).

Fritiofson v. Alexander, 772 F.2d 1225, 1245 (5th Cir.1985).

Citing extensively from a Fifth Circuit opinion that rejected “the COE’s reliance on vague and conelusory assertions,” the plaintiffs accuse the COE of preparing “nothing that approximates the required cumulative impact study.” Id. at 31-32 (citing Fritiofson v. Alexander, 772 F.2d 1225, 1245 (5th Cir.1985)).

Fritiofson v. Alexander, 772 F.2d 1225, 1237 (5th Cir.1985).

Rather, the agency must consider a range of alternatives that covers the full spectrum of possibilities. 34 The discussion of alternatives need not be exhaustive, but it must “be sufficient to demonstrate reasoned decisionmaking.” Fritiofson v. Alexander, 772 F.2d 1225, 1236 (5th Cir.1985); C.A.R.E.

Fritiofson v. Alexander, 772 F.2d 1225, 1238 (5th Cir.1985).

Save the Yaak Committee v. Block, 840 F.2d 714, 721 (9th Cir.1988); Fritiofson v. Alexander, 772 F.2d 1225, 1243 (5th Cir.1987); 40 C.F.R. §§ 1508.7 , 1508.25(c)(3).

Fritiofson v. Alexander, 772 F.2d 1225, 1237 (5th Cir.1985).

The agency must also consider actions that are not themselves subject to NEPA’s requirements [See 40 C.F.R. § 1508.7 (1987); Fritiofson v. Alexander, 772 F.2d 1225, 1242-43 (5th Cir.1985)].

Fritiofson v. Alexander, 772 F.2d 1225, 1238 (5th Cir.1985).

Fritiofson v. Alexander, 772 F.2d 1225, 1238 (5th Cir.1985).

Fritiofson v. Alexander, 772 F.2d 1225, 1239 (5th Cir.1985).

The regulatory definition of “significantly” mandates that agencies consider “cumulative impacts,” that is, “the 11 incremental impact of the action when added to other past, present and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.” Fritiofson v. Alexander, 772 F.2d 1225, 1232 (5th Cir. 1985) (citing 40 C.F.R. § 1508.27 ).

See 772 F.2d at 1234 , 1247 .

See Fritiofson v. Alexander, 772 F.2d 1225, 1243 (5th Cir.1985). 14 .

See Fritiofson v. Alexander, 772 F.2d 1225, 1236 (5th Cir.1985). 4 The Federal Regulation applicable to the Corps’ analysis sets forth an extensive explanation of what “significantly” means under the federal environmental laws.

See Fritiofson v. Alexander, 772 F.2d 1225, 1246 (5th Cir. 1985) (“[A]n impact can be cumulative and at the same time [be] a direct or indirect impact.” (quotation omitted)), abrogated by Sabine River Auth., 951 F.2d 669 . found that this induced development would have both positive and negative impacts on the subject area.