399 F.Supp.2d 386 (2005) | Cited 1 time | S.D. New York | August 5, 2005



Plaintiffs are a group of environmental organizations andconcerned citizens. They are challenging an ongoing project, tobe carried out by the Army Corps of Engineers ("Army Corps"), todeepen shipping channels in the New York-New Jersey Harborthrough dredging and blasting of the Harbor floor. The HarborDeepening Project ("HDP") is intended to open the Harbor to thenewer, larger and deeper-bottomed cargo vessels on which the modernshipping industry depends. Part of the HDP will cut throughhighly contaminated sections of Newark Bay and surroundingwaterways. This contamination is the result of centuries of heavyindustrial use of the Bay and its tributaries — in particular,the Bay is contaminated with the by-products resulting from themanufacturing of Agent Orange at the Diamond Alkali ChemicalPlant, on the Passaic River, during the Vietnam War.

On February 13, 2004, the United States EnvironmentalProtection Agency ("EPA") entered into an Administrative Order onConsent ("Feb. 2004 AOC"), which added Newark Bay to the DiamondAlkali Superfund Site, as the "Newark Bay Study Area of theDiamond Alkali Superfund Site." The AOC orders a RemedialInvestigation/Feasibility Study ("RI/FS") to be carried out byOccidental Chemical Corporation under the supervision of the EPA.The RI will determine the extent and nature of contamination inthe Bay, and the FS, based on what is learned from the RI, willevaluate possible cleanup options. Both aspects of the study areto begin in the summer of 2005. An essential component of thestudy is the sampling of the Bay's water to determine thedistribution and concentration of contaminated sediments.

Plaintiffs believe that the HDP may delay or frustrate thissampling effort, by disturbing and resuspending1 the contaminatedsediments that are to be sampled, undermining the study's attemptto map contaminant distribution — thereby delaying or evenpreventing the design of effective cleanup options. They insistthat the Corps is acting arbitrarily and capriciously, inviolation of the National Environmental Policy Act ("NEPA"),42 U.S.C. §§ 4321 et seq., and the Adminstrative Procedure Act,5 U.S.C. § 706 ("APA"), by proceeding with the HDP withoutpreparing a Supplemental Environmental Impact Statement ("SEIS")to consider the possible detrimental effects of the HDP dredgingon the RI/FS. The Corps argues that dredging will notsignificantly interfere with sampling for the RI/FS, and so thereis no reason to prepare an SEIS.

The narrow issue presented here is whether the Army Corps gavea "hard look" to the possibility that the HDP will interfere withthe sampling required by the RI/FS, and to ways of avoiding suchinterference, before deciding to go ahead with dredging withoutpreparing an SEIS. If the Corps failed to take that hard look,its decision, by definition, was arbitrary and capricious.

After closely reviewing a voluminous record, I conclude thatthe Corps failed to take a hard look at this narrow question.Because the sampling will ultimately be important in determining the need for aclean-up of the Bay, and the best way to approach that clean-up,it is important that any action that might adversely affect it becarefully considered. The issue is a narrow one, and it may bethat, once the Corps does take a hard look at the possibleeffects of dredging on the RI/FS, it will find — as it hopes —that they are minor and easily controlled by cooperation betweenthe Corps and the EPA, and that preparing an SEIS would merelyresult in burden and delay. But the issue is too important to betreated lightly. NEPA ensures that federal agencies must take ahard look at potential environmental problems before proceedingwith their plans. The Corps must assess the impact of itsdredging on the sampling required for the RI/FS before committingto a particular method of dredging, rather than waiting untildredging interferes with that sampling and causes unrecoverabledelays to the potential cleanup process. Similarly, if the Corpsrelies on the promise of cooperation between the EPA and theCorps to minimize the effects of dredging on the RI/FS, the Corpsmust give full consideration to how that cooperation will behandled before committing to a particular method of dredging, notafter problems arise. For the reasons set forth below, the Corps'decision to begin dredging without taking the required hard lookat this problem was arbitrary and capricious. The issue is before the Court on plaintiffs' anddefendants'2 cross-motions for summary judgment. Pursuantto the agreement of the parties, the Court has bifurcated reviewof plaintiffs' claims. This opinion addresses only the questionof liability — that is, whether the Corps' decisions to proceedwith the HDP without preparing an SEIS were based on adequatereview of the environmental consequences of the HDP, as requiredby NEPA and the APA. I find that they were not, and the Corps isin violation of NEPA and the APA. The question of what remedy (ifany) is necessary will be addressed in a subsequent opinion.


A. The Newark Bay Site

On September 21, 1984, the EPA added the Diamond AlkaliSuperfund Site to the National Priorities List, pursuant to theComprehensive Environmental Response, Compensation and LiabilityAct ("CERCLA").3 The site consisted of the former DiamondAlkali chemical manufacturing plant and the adjacent property. The EPA's RI/FS revealed that the site washighly contaminated with toxic substances, including dioxin, aby-product of the Agent Orange manufacturing carried out at theplant during the Vietnam War.4

The EPA's investigations also revealed hazardous substances inthe sediments of the Passaic River.5 These findingsresulted in the EPA entering into an AOC, dated April 20, 1994,with Occidental Chemical Corporation ("Occidental"), the companyresponsible for the plant site. The 1994 AOC required Occidentalto conduct an RI of a six mile stretch of the Passaic River, upand downstream from the plant site.6 In 2003, the EPAdetermined that an expanded RI for a 17-mile stretch of the River(the "Lower Passaic River Study Area") was necessary. The EPA,the Army Corps, and the New Jersey Department of Transportationhave entered into a partnership, the Lower Passaic RiverRestoration Project, to "identify and address water qualityimprovement, remediation and restoration opportunities" in the PassaicRiver.7 On June 22, 2004, the EPA entered into an AOCwith thirty-one potentially responsible parties to fund the EPA'sinvestigation of the Lower Passaic River Study Area.8 TheLower Passaic River Study Area ends at the mouth of theRiver.9 To date, no remedy has been determined for theLower Passaic River Study Area.10

On November 19, 2003, plaintiffs NRDC and Raritan Baykeeper,Inc. ("Baykeeper"), served a notice of intent to sue Occidentalunder the Resource Conservation and Recovery Act, to compel astudy of dioxin contamination in Newark Bay, which they allegehad spread downstream from the Passaic River portion of theDiamond Alkali Superfund Site.11 On February 13, 2004,the EPA entered into another AOC with Occidental underCERCLA.12 The February 2004 AOC designated Newark Bay andportions of the Hackensack River and the Arthur Kill and Kill van Kull channels as the Newark Bay StudyArea of the Diamond Alkali Superfund Site (the "Newark Bay StudyArea").13 Pursuant to the AOC, the EPA "has determinedthat conditions in the Newark Bay Study Area may present animminent and substantial endangerment to public health, welfareor the environment."14

Under the terms of the AOC, Occidental has undertaken toperform an RI/FS in the Newark Bay Study Area, under thesupervision of the EPA, "to determine the nature and extent ofcontamination . . . and to develop and evaluate remedialalternatives."15 Among other things, the RI will"determine the ? distribution and concentration of[contaminants] for the Newark Bay Study Area sediments," in orderto "identify `hot spots' for potential short term action[;]identify potential exposure concentrations through the food chainfor human and ecological receptors [and] evaluate prospectiveremedial alternatives."16 In addition, the RI will"determine the primary human and ecological receptors of[contaminated sediments] in the Newark Bay Study Area" and"determine the direct and indirect continuing sources of [contaminants] to thesediments in the Newark Bay Study Area."17 The FS willevaluate a range of possible remedial actions, from "[t]reatmentalternatives for source control of contaminated [sediments] thatwould eliminate the need for long term management," through "[a]nalternative that involves containment of waste with little or notreatment," to "[a] no action alternative."18 A companyknown as Tierra Solutions, Inc., ("Tierra") is performing thework under the AOC on behalf of Occidental.19

Occidental submitted a draft work plan to conduct the RI forthe Newark Bay Study Area in June 2004.20 The draft RI/FScontains a draft Inventory Report (the "June 2004 InventoryReport") compiling data on contaminated sediment, flora andfauna, and water in and around Newark Bay.21 The plan issubject to the approval of the EPA. Based on public comments, theEPA anticipates that the draft work plan will needmodification.22 The EPA is revising the study, with the intention of beginning fieldsampling of contaminated sediments in the Newark Bay Study Areain the summer of 2005.23

B. The Harbor Bay Deepening Project

The Port of New York and New Jersey ("the Port") is the thirdlargest in the nation.24 In 2004, $114 billion in cargopassed through the Port.25 A 2001 study conducted by theCenter for Urban Policy Research at Rutgers University found that cargo movement in 2000 provided nearly 101,700 direct full-time equivalent jobs and supported an additional 125,585 in-direct full-time equivalent jobs in the 26-county metropolitan region. Furthermore, the goods movement thru the port region supported an additional 185,715 jobs elsewhere in the nation (not including the jobs of people producing goods shipped).26

In recent years, under the pressure of globalization, the oceancarrier industry has seen a movement toward the concentration ofcapacity in fewer ships and ports.27 At the same time, there has been a trendtoward the development of larger cargo vessels, capable ofcarrying cargo more efficiently and achieving economies ofscale.28 The navigation channels in the Harbor are notpresently deep enough to serve fully loaded ships of the latestdesign.29

Beginning in 1986, Congress has authorized the Army Corps toundertake a number of projects to deepen the navigationalchannels in the New York and New Jersey Harbor.30 Theseprojects included the Kill Van Kull 45' Deepening Project, theArthur Kill 41/40 Deepening Project, The Port Jersey 41'Deepening Project, and the New York and New Jersey HarborDeepening Project.31 In 2002, Congress ordered the ArmyCorps to consolidate each of these projects into one overalldeepening project, known as the HDP.32 The HDP will deepen all of the navigational channels in the New York and NewJersey Harbor to 50 feet.33

C. NEPA Review of the Harbor Deepening Project

The various phases of the HDP have been subjected to extensiveenvironmental review under NEPA and under section 401 of theClean Water Act, 33 U.S.C. § 1341. In total, the Army Corps hasproduced over a dozen separate NEPA documents analyzing theproject, beginning with a 1980 Final EnvironmentalStatement.34 The most important of these is a FinalEnvironmental Impact Statement ("FEIS"), issued by the Army Corpsin December 1999, to "identify, screen, evaluate and recommend aplan for channel improvements throughout the Port of New York andNew Jersey."35 Among other factors, the 1999 FEISanalyzed the environmental effects of resuspension ofcontaminated sediments as a result of dredging, and the potentialeffects of such resuspension on "exposure of biological receptors to contaminants."36 TheFEIS concluded that: two opposing effects on biological exposure to contaminants are anticipated from deepening the navigation channels in the New York and New Jersey Harbor. Dredging of the channels, and the resulting suspension of contaminated sediments into the water column, is expected to increase exposure of biological organisms. This is expected to occur, however, only in areas close to the dredging operations and should be relatively short-lived because suspended sediments are expected to settle out of the water column within a relatively short period. Furthermore, sediment suspension from ship traffic in narrow channels has been shown to be greater than from dredging activities. It is therefore possible that any increase in exposure due to dredging will be minimal compared to other more frequent disturbances in the Harbor. On the other hand, dredging the channels is also expected to remove a large amount of contaminated sediments from the bottom of the channels, thus exposing a new layer of relatively clean sediment. This effect, however, is also expected to be short-lived . . . [T]he system should stabilize and return to current conditions within a few months to a few years, depending on the area of the Harbor. Furthermore, Best Management Practices (BMPs) will be used during dredging operations to minimize the suspension of sediments . . . In addition, sediment contaminant analysis, where necessary, will be performed for the next phase of the project, and will be coordinated with the appropriate regulatory authorities.37

In 2001, the Army Corps signed a Pre-construction Engineeringand Design Agreement with the Port Authority of New York and NewJersey.38 Pursuant to Army Corps regulations, the Army Corps updated itsenvironmental analysis of resuspension of sediments resultingfrom dredging operations.39 The Army Corps updated itsenvironmental analysis again following the 2002 consolidation ofthe various projects into the HDP. Because the consolidationresulted in some changes to the design of the project, andadditional deepening in some areas, the Army Corps conducted anEnvironmental Assessment ("EA").40 The public commentperiod for this EA opened in November, 2003.41 In January2004, the Army Corps issued its Limited Reevaluation Report andEA, with a Finding of No Significant Impact ("FONSI").42The EA/LRR found that "[d]ata comparison and evaluationidentified no new potential adverse environmental impactsattributable to consolidation. Potential short term impacts dueto consolidated implementation would be the same as the effectson aquatic resources identified in the [prior EIS], except theoverall duration under a consolidated schedule would beshorter."43 D. Clean Water Act Review of the Harbor Deepening Projects

In addition to its obligations under NEPA, the Army Corpsapplied, pursuant to the Clean Water Act, for "umbrella" WaterQuality Certificates ("WQCs") from the States of New York and NewJersey, as part of the approval process for the HDP.44Following formal public hearings on February 12, 2004 in StatenIsland, New York and March 10, 2004 in Bayonne, New Jersey, theArmy Corps received WQCs from both states.45 The WQCsimpose extensive "Special Conditions" on the dredging practicesused in the deepening projects.46 For example, the WQCissued by New York specifies the type of "environmental bucket"to be used for dredging.47 The WQCs also require ongoingmonitoring of certain environmental impacts and the submission ofadditional "Permit Documents." Among other things, the New YorkWQC requires that "a sediment sampling plan for purposes ofconducting bulk chemistry analysis for each contract reach be submitted for [New York State Department ofEnvironmental Conservation] approval in coordination with theState of New Jersey at least 60 days prior to the anticipatedstart date for a given reach."48

E. Environmental Review Following the February 2004 AOC

On February 13, 2004, the EPA informed the Army Corps by emailthat the AOC designating the Newark Bay Study Area had beensigned.49 An Army Corps employee named Thomas Shea, atthe time the manager of the Lower Passaic River project, and nowmanager of the HDP, responded to that email on February 17, 2004,asking "[w]hat impact does this have on our navigation jobs,where we are dredging portions of Newark Bay?"50 On March11, 2004, Shea circulated the AOC to twenty-one Army Corpsemployees.51 Shea noted that "As a result of this order,I have some basic questions on what this may mean to our variousprograms (predominantly our . . . deepening projects . . .). . . .Could you please review the order and develop your own set ofquestions and send them to me. I will consolidate them and EPA will review and meet with usto discuss them."52 Shea received several responses,although none substantively addressing the effect of dredging onthe RI/FS.53

In May, and again in October, Elizabeth Butler of the EPAattempted, by email, to arrange a meeting with Shea to discusscoordination between the Army Corps' and the EPA's activities inthe Bay.54 In the meantime, in May and September 2004,plaintiffs raised their concerns with the EPA and the Army Corps,by letter, email and orally.55 Notably, in a May 3, 2004email to Shea, Baykeeper requested a meeting "to discuss [ArmyCorps] coordination with EPA, especially with respect to dredgingin Newark Bay and other areas under study under the guise ofCERCLA."56 In a September 28, 2004 letter to the EPA (andcopied to the Army Corps), NRDC and Baykeeper presented adetailed list of objections to Tierra's draft work plan for the RI/FS; among otherthings, plaintiffs complained that Tierra's work plan failed toconsider the "obvious overlap" between their sampling activitiesand the Army Corps' dredging.57

On October 18, 2004, representatives of the EPA and the ArmyCorps finally met to discuss the deepening projects.58 Atthat meeting, the Army Corps provided EPA with a preliminaryschedule and map of planned deepening projects to assist with thecoordination of the projects.59 During the followingmonths, the EPA and the Army Corps continued to communicate,while plaintiffs continued to press their concern. On November24, 2004, plaintiffs wrote to Colonel Richard J. Polo, Commanderand District Engineer of the Army Corps, New York District, torequest a meeting to discuss their fear that dredging would"undermine the viability" of the RI to be conducted in the Bay, and "byinterfering with the study [, would] delay or prevent aneffective Superfund cleanup of contaminated sediments."60

Internal Army Corps memoranda from early December recordconversations between the EPA and the Army Corps. One of thesememos records that the EPA informed the Corps that "Newark Bay isnot officially part of a Superfund Site yet, but after theSampling effort is completed ? and RemedialInvestigation/Feasibility Study report is done it will mostlikely be designated as a site."61 According to the memo,the EPA "would like to get a better handle on our dredgingschedule to coordinate there [sic] sampling efforts."62 Asecond memo records that the EPA stated that "whether Newark Bayis designated a Superfund Site will not prevent all activity,such as harbor deepening. If it is designated a Superfund Site,EPA will likely look to the Hudson River (a Superfund Site thatwas dredged) to determine how to approach Newark Bay."63 On December 6, 2004, officials of the Corps and the EPA met todiscuss NRDC's concerns regarding the impact of the Army Corps'dredging on the EPA's sampling activities.64 Army Corpsmemoranda prepared by Shea and by another Corps project manager,Scott Nicholson, summarized the "key points/conclusions" of themeeting: specifically, that "[t]he EPA is in the early stages ofdetermining what studies are needed to determine the ? extent ?of hazardous material and what remediation methods should beperformed, if warranted;" and that "[t]he EPA saw no reason forthe USACE to stop any of its navigation projects."65 TheEPA

noted that just because EPA designated an area for study, it does not mean you cannot dredge. They felt that the claim that dredging would exacerbate the imminent and substantial endangerment to human health was not accurate based on previous sampling and dredging. In this context, they also noted that there was no new information that was found and used for the Newark AOC that would affect that understanding. In addition, based on existing information and ongoing coordination, the dredging planned for the HDP in Newark Bay would not delay or prevent an effective cleanup or exacerbate existing conditions.66However, the EPA "would not comment on [the Army Corps'] need foradditional NEPA documentation. They stated that this was a USACEdecision to make."67

On December 8, 2004, Army Corps staff, including Polo, met withrepresentatives of plaintiffs and the EPA, at the request ofNRDC, to discuss dredging methods.68 The following day,the Army Corps initiated a team review by its NEPA specialists todetermine whether further NEPA review was required.69 Theresults of this review are documented in a memorandum datedDecember 16, 2004.70 As part of this review, the Corpsreviewed its NEPA documents prepared since 1999.71 TheCorps also re-evaluated its methods for minimizing resuspension of sediment in dredging.72 In addition, theCorps compared the dredging methods to be used in Newark Bay withthose used in the Hudson River, a Superfund site in which GeneralElectric will be performing a cleanup of PCB-contaminatedmaterial, a process which will include remedial dredging and alimited amount of navigational dredging.73 The Corpsconcluded that the dredging methods and "resuspension controltechnologies" used in the Hudson River, to the extent that theydiffered from those planned for Newark Bay, were "a poor fit forour project" or unsuited to navigable waters.74 Finally,the Corps contacted its New England District to discuss thedredging methods used in a Superfund cleanup in New BedfordHarbor, Massachusetts.75

Ultimately, the Corps concluded that "the Newark Bay issue wasaddressed in detail in the EIS, and no substantial changes in thephysical or chemical nature of its sediments in the projectoccurred as a result of the AOC. Therefore all analyses conductedand conclusions derived from them in the original EIS are still valid."76 Because "there have beenno substantial changes in existing conditions or project plans asa result of the ACO [sic, AOC]," the Corps further concluded thatthere was no need to prepare an SEIS.77 However, "in thatCERCLA designation may be perceived by the public as significantof itself, the District should, in the interest of full publicdisclosure, prepare an EA/FONSI to document why no furthersupplemental EIS is needed."78 Shortly afterwards, onDecember 29, 2004, the Corps awarded the first contract fordredging in the Arthur Kill Channel.79

On January 4, 2005, NRDC served the Corps with a notice ofintent ("NOI") to sue, demanding that the Corps prepare anSEIS.80 On February 16, 2005, plaintiffs moved for apreliminary injunction halting the HDP. The Corps formed anotherenvironmental review team to analyze plaintiffs' arguments,including plaintiffs' concern that dredging would interfere withthe study phase of the RI/FS, and two environmental reports thatplaintiffs claimed contained new information.81

On February 28, 2005, the Corps released an SOF, whichconcluded that were no significant new circumstances orinformation that would require preparation of an SEIS.82In that Statement, the Corps determined that the new reportsrelied on by plaintiffs contained no new significant newinformation.83 The SOF, and the documents attachedthereto, also reviewed the Corps' dredging methods, itscoordination with the EPA, its ongoing monitoring obligationsunder its WQCs, and the dredging methods used by the Corps' NewEngland District in Superfund cleanup sites.84 In adeclaration prepared in opposition to plaintiffs' motion for a preliminary injunction, Dr. Robert M. Engler, aSenior Scientist (Environmental) for the Army Corps, summarizedhis finding that dredging would not "negatively impact proposedSuperfund investigations."85 Dr. Engler also found that: Based on field observations; the nature of contaminant mobilization; modeling; operational requirements of the dredge; surveys of the distribution and magnitude of contaminant concentration; physical, chemical and toxicological assessments; and overall knowledge of the entire estuary — all of which have been evaluated by USACE — the preponderance of evidence and experience in this system indicates that resuspended sediments from dredging will be minimal (particularly when compared to other sources of resuspension). Similarly, resuspension will be short-lived, and generally limited to the immediate vicinity of the dredging operation. . . . Moreover, resuspension from a properly operated environmental dredge will usually be less than 1 percent of the total amount dredged.86Ultimately, the Corps concluded that there were no significantnew data or circumstances that would require preparation of anSEIS.87 On March 11, 2005, the Army Corps awarded thefirst contract for dredging in the Kill van Kull Channel.88


A. The Procedural Requirements of NEPA

The procedural requirements of NEPA are intended to ensure thatthe "broad national commitment to protecting and promotingenvironmental quality ? is `infused into the ongoing programsand actions of the Federal Government.'"89 Among otherrequirements, NEPA directs that all federal agencies must, forevery major federal action significantly affecting the quality ofthe human environment, prepare a detailed EIS.90 The EISmust examine 1) the environmental impact of the proposed action;2) any adverse environmental effects which cannot be avoidedshould the proposal be implemented; 3) alternatives to theproposed action; 4) the relationship between local short-termuses of the environment and the maintenance and enhancement oflong-term productivity; and 5) any irreversible and irretrievablecommitments of resources that would be involved in the proposed action should it be implemented.91 Thisstatutory requirement

ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision.92

If the agency is uncertain whether the impacts rise to thelevel of a major federal action requiring an EIS, the regulationsof the Council on Environmental Quality (the "CEQ")93require that the agency must prepare an EA.94 An EA is "aconcise document that briefly discusses the relevant issues andeither reaches a conclusion that preparation of [an] EIS isnecessary or concludes with a FONSI, in which case preparation ofan EIS is unnecessary."95 "When the determination that asignificant impact will or will not result from the proposed action is a close call, an EIS should be prepared."96"The fact that effects are only a possibility does not insulatethe proposed action from consideration under NEPA, but it doesaccord an agency some latitude in determining whether the risk issufficient to require preparation of an EIS."97

An agency's obligations under NEPA do not end with thepreparation of an EIS. The agency may be required to prepare anSEIS "if there `are significant new circumstances or informationrelevant to environmental concerns and bearing on the proposedaction or its impacts.'"98 An agency's determinationwhether to prepare an SEIS in light of new information orcircumstances is governed by a "rule of reason."99 "[A]nagency need not supplement an EIS every time new informationcomes to light after the EIS is finalized. To require otherwisewould render agency decisionmaking intractable."100However, an agency must prepare an SEIS whenever major federalaction is yet to occur which the new information shows willaffect the quality of the human environment in a significant manner or to a significant extent not alreadyconsidered.101 As with the decision to prepare an EIS,"[c]lose calls should be resolved in favor of preparing aSEIS."102 If the agency determines that new informationis not sufficiently significant to require an SEIS, the agency isnot necessarily required to produce a formal NEPA documentexplaining its decision.103

Ultimately, "NEPA is a procedural statute that mandates aprocess rather than a particular result."104 "The onlyrole for a court is to insure that the agency has taken a `hardlook' at environmental consequences; it cannot `interject itselfwithin the area of discretion of the executive as to the choiceof the action to be taken.'"105 As long as the agency hasgiven adequate consideration to the environmental consequences of its actions, NEPA does not precludeit from "deciding that other values outweigh the environmentalcosts."106

B. The Standard of Review

The Administrative Procedure Act governs judicial review of anagency's compliance with NEPA.107 That Act provides thata reviewing court shall "hold unlawful and set aside agencyaction, findings, and conclusions found to be arbitrary,capricious, an abuse of discretion, or otherwise not inaccordance with law, . . . [or] without observance of procedurerequired by law."108 "[A]n agency decision is entitled toa presumption of regularity, and the burden of proof is on theparty challenging the agency's decision."109

Review of an agency's decision not to supplement an EIS iscontrolled by the `arbitrary and capricious' standard of §706(2)(A) of the APA.110 A reviewing court must make a"searching and careful" inquiry into "whether the decision was based on a consideration of the relevant factors andwhether there has been a clear error of judgment."111 Inthe Second Circuit, this review has two steps. First, the courtconsiders "whether the agency took a `hard look' at the possibleeffects of the proposed action."112 Second, if thecourt is satisfied that the agency took a hard look, the courtmust determine "whether the agency's decision was arbitrary orcapricious."113

Although a "court may not substitute its judgment for that ofthe agency," an agency decision may be set aside as arbitrary andcapricious where the agency

has relied on factors which Congress has not intended it to consider, entirely failed to consider an important part of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.114When specialists express conflicting views, the court must deferto the agency's reliance on the reasonable opinions of its ownqualified experts, "even if, as an original matter, a court might find contrary views morepersuasive."115 "[I]t is for the agency to evaluate newinformation and make a reasoned determination whether it is ofsuch significance as to require implementation of formal NEPAfiling procedures."116 However, courts should notautomatically defer to the agency "without carefully reviewingthe record and satisfying themselves that the agency has made areasoned decision based on its evaluation of the significance —or lack of significance — of the new information."117

Subject to certain exceptions, "a court reviewing an agencydecision is confined to the administrative record compiled bythat agency when it made the decision."118 The Court hasalready determined, in a ruling dated May 9, 2005, that there aretwo relevant decisions. On December 29, 2004, the Army Corpsawarded a contract with respect to the Arthur Kill 40/41 project,and thus made a decision, for purposes of NEPA, to proceed withthat project without preparation of an SEIS. The adequacy of the Army Corps' decision with respectto the Arthur Kill 40/41 project must be judged based on therecord as of December 29, 2004. The Corps maintains, and thisCourt held in its prior ruling, that the Arthur Kill 41/40project is separable from the remainder of the HDP. With respectto the remainder of the HDP, the relevant decision occurred onMarch 11, 2005, when the Corps awarded a contract for the S-KVK-2project in the Kill van Kull Channel, a project which the Corpsconcedes is inseparable from the broader HDP.

This case is before the Court on the parties' cross motions forsummary judgment. Pursuant to Federal Rule of Civil Procedure 56,summary judgment should be granted only if the moving party hasshown that there are no genuine issues of material fact and thatthe moving party is entitled to judgment as a matter oflaw.119


A. Standing

Although defendants do not challenge plaintiffs' standing,"[t]he federal courts are under an independent obligation toexamine their own jurisdiction, and standing `is perhaps the mostimportant of [the jurisdictional] doctrines.'"120

Three elements comprise the irreducible constitutional minimum of standing. First, the party seeking judicial resolution of its claim must have suffered an injury-in-fact — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. A `particularized' injury is one that affects the plaintiff in a personal and individual way. Second, there must be a causal connection between the injury and the conduct complained of. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.121

Because plaintiffs assert a violation of a procedural rightunder NEPA, a lesser showing of immediacy and redressability isrequired. Plaintiffs need not show that the preparation of anSEIS would change the Army Corps' ultimate decision regarding theHDP, but only that "the disregard of [NEPA] could impair aseparate concrete interest of [plaintiffs']."122 "[E]nvironmental plaintiffs adequately allege injury in factwhen they aver that they use the affected area and are personsfor whom the aesthetic and recreational values of the area willbe lessened by the challenged activity."123 The membersof the plaintiff organizations, and individual plaintiff AndrewWillner, aver that they have curtailed their former use of thewaterbodies in the Newark Bay Study Area for fear of pollution,which they allege will be exacerbated by the Army Corps' decisionto proceed with the HDP without further NEPA review.124

The plaintiff organizations have standing to bring suit onbehalf of their members, because the interests the organizationsseek to protect are germane to their purposes, and neither theclaim asserted nor the relief requested requires theparticipation of individual members in the lawsuit.125 Inaddition, plaintiff organizations have alleged that, due to theArmy Corps' refusal to prepare an SEIS, plaintiff organizationshave diverted their resources to technical analysis of the impacts of the dredging on the Superfund site.126 Thecost of this diversion of resources is a sufficient injury toconfer standing on the organization on its own behalf.127

B. Laches

Defendants argue that plaintiffs' claims are barred by laches.A party asserting a defense of laches must establish that "(1)the plaintiff knew of defendant's misconduct; (2) the plaintiffinexcusably delayed in taking action; and (3) the defendant wasprejudiced by the delay."128 "[L]aches is a doctrine ofequity that is only rarely invoked in environmental cases, onaccount of the strong public interest in effecting compliancewith NEPA."129

Defendants' argument for the application of laches rests on a misapprehension of the nature of plaintiffs' claims. The ArmyCorps argues that "at its core plaintiffs' lawsuit challenges[the Army Corps'] dredging methods and the adequacy of the ArmyCorps' prior NEPA analyses."130 Accordingly, the Corpsargues that plaintiffs delayed unreasonably between thecompletion of the Corps' 1999 FEIS and the bringing of this suit.In support of this assertion, the Corps points to certainstatements by plaintiff Baykeeper which suggest that Baykeeper"opposes all deepening activities within theharbors."131 Regardless of what plaintiffs' broaderpolicy ambitions may be, this lawsuit is specifically focused onthe Corps' decision to proceed with dredging without preparationof an SEIS to consider alleged new impacts resulting from theFeb. 2004 AOC.132 The first of the challenged decisionsoccurred on December 29, 2004, and plaintiffs brought suit quitepromptly, on January 21, 2005. In the year following the signing of the February 2004 AOC,plaintiffs repeatedly attempted to resolve their concerns withthe Army Corps and the EPA through negotiation.133Throughout this period, it was reasonable for plaintiffs tobelieve that the Corps might alter its plans without the need forlitigation.134 Plaintiffs did not unreasonably delay inbringing suit.135 Although plaintiffs did not demand thatthe Corps prepare an SEIS until November 24, 2004,136plaintiffs in a NEPA case cannot be faulted for reasonable andgood faith attempts to bring environmental considerations to theattention of the agency through methods less formal than thepreparation of an SEIS.

Moreover, even if plaintiffs had delayed unreasonably,defendants have failed to make a sufficient showing of prejudice. In NEPAcases, the test of prejudice is

whether the plaintiff's delay in bringing the suit has resulted in construction proceeding `to a point where any significant environmental damage has already been done' and whether, in the alternative, `construction may have gone so far that for economic reasons it would be impracticable or impossible to alter much of the basic plan.'137

Plaintiffs are not attempting to put a stop to all dredging inthe Bay. Rather, plaintiffs are attempting to force the ArmyCorps to give additional consideration to the means by whichdredging is to be coordinated with the EPA's RI/FS. The EPA'sRI/FS is an extensive, multi-year process, which has not yetbegun. It is not too late for additional analysis of methods ofcoordination to help mitigate the impact of dredging on theRI/FS. The Army Corps claims, no doubt accurately, that "[t]hecost of ? altering these projects now issubstantial,"138 but that is far from sufficient to showthat it would be "impracticable or impossible" for the Army Corps to alter its dredging methods. I note that theArmy Corps, the EPA, and the state environmental authorities havecommitted to coordination of their activities and to ongoingmonitoring and analysis of their cooperation; surely, if thisongoing cooperation is to be more than a paper exercise, theCorps must still have some flexibility to refine its dredgingmethods.

C. The Merits of Plaintiffs' NEPA Claim

1. The Army Corps Was Required to Take a Hard Look at theSignificance of New Circumstances

The Army Corps argues that the designation of the Newark BayStudy Area cannot be considered a "significant new circumstance"requiring the preparation of an SEIS.139 Rather, the ArmyCorps contends that "at most, the designation [of Newark Bay as aStudy Area under CERCLA] constitutes a change in the Bay's legalstatus, which courts have not recognized as triggering the needfor an SEIS."140 Therefore, the Army Corps argues that itwas under no obligation even to take a `hard look' at plaintiffs'purported "new information." This argument fails for two reasons.

First, the Feb. 2004 AOC represents more than a mere changein the Bay's legal status. The AOC requires Occidental and theEPA to conduct an RI/FS in the Bay to determine what clean-upmeasures, if any, can be taken.141 This is not merely achange in the label attached to the Bay; it is a physical changein the activities that will take place in the Bay.

The CEQ's regulations require that, when an agency considersthe environmental impact of its activities, it must take intoaccount "indirect effects."142 Indirect effects aredefined in the CEQ's regulations as [effects] which are caused bythe action and are later in time or farther removed in distance,but are still reasonably foreseeable."143 Indirect effectsare defined broadly, to "include growth inducing effects andother effects related to induced changes in the pattern of landuse, population density or growth rate, and related effects onair and water and other natural systems, includingecosystems."144 The CEQ's regulations also require thatagencies consider the "cumulative impact" of their activities —i.e., "the impact on the environment which results from theincremental impact of the action when added to other past,present, and reasonably foreseeable future actions regardless ofwhat agency (Federal or non-Federal) or person undertakes suchother actions."145 Plaintiffs' experts contend that theHDP will interfere with the RI/FS, and therefore will have theindirect effect of preventing the EPA from taking remedialaction, or reduce the effectiveness of whatever remedial actionthe EPA may take.146 If plaintiffs are correct, then the HDP may have significant new environmental consequences, whetherthese are seen as indirect or cumulative effects.

This case is therefore very different from Swanson v. ForestService,147 on which the Army Corps relies. InSwanson, the Ninth Circuit held that the change in the legalstatus of salmon from a "sensitive" to an "endangered" specieswas not a significant new circumstance requiring an SEIS: thecourt held that the new listing changed the legal status of the salmon, but it did not change the biological status. The Forest Service previously determined that it was unlikely that the proposed actions would have a negative impact on the salmon; as this finding was not premised on the salmon's non-threatened status, the determination that the salmon were in fact threatened did not constitute new information.148Here, the CERCLA designation itself is not significant; it is achange in the Bay's legal status, but not its environmentalcharacteristics. The Corps' previous findings regarding theimpacts of dredging in the Bay are not disturbed by this changein status. However, the fact that the Corps' dredging will takeplace alongside an RI/FS is a real, physical change, that mayalter the environmental impact of dredging. Whether this changeis a significant one is an empirical and scientific question, which requires adequate consideration by theArmy Corps.149

More fundamentally, the Army Corps' argument is contrary to thestandard of review prescribed by Marsh and GrandView.150 It is the initial responsibility of the agency,not the Court, to determine whether new information orcircumstances are sufficiently significant to warrant an SEIS.Under Grand View, the Court's role is to determine whether theagency took a sufficiently "hard look" at the significance of newcircumstances, and, if so, whether its decision that they werenot significant was arbitrary or capricious. An agency violatesNEPA when it fails to give adequate and timely consideration tothe significance of new circumstances, regardless of whether itis able, during the ensuing litigation, to provide evidence thatthe new circumstances are not significant.151 Thethreshold question, therefore, is not whether the new circumstances weresignificant, but whether the Army Corps took a sufficiently hardlook at the significance of those new circumstances.152 2. The Army Corps Failed to Comply with NEPA Because It DidNot Take the Required Hard Look

a. The Army Corps' Subsequent Decision to Prepare an EA Is Nota Concession That Its Prior Review Was Inadequate

At the outset, plaintiffs' argument that the Corps' decision toprepare an EA153 is a concession that its previousenvironmental review was inadequate is without merit. The Corpshas never conceded that it is required to prepare an SEIS,although it has suggested that it would consider thepossibility.154 In fact, the Corps has suggested that thepurpose of the EA is to "document why no SEIS isnecessary."155 This is somewhat disturbing. The purposeof an EA is not to document a foregone conclusion, but, pursuantto the Corps' regulations, to "provide? sufficient informationto the district commander . . . for determining whether toprepare an SEIS or a FONSI."156 "[A]n agency's NEPAanalysis `must be taken objectively and in good faith . . . andnot as a subterfuge designed to rationalize a decision already made.'"157 Nevertheless,the question before the Court is whether the Corps' review of theissue prior to December 29, 2004 and March 11, 2005 was reasonedand adequate; the quality of the Corps' subsequent documentationis irrelevant.158

b. The Prior Environmental Reviews Conducted by the Corps AreSufficient to Address Certain Issues

Although the analysis the Corps engaged in between October andDecember 2004 was brief and informal, it built on decades ofprior environmental review. Plaintiffs challenge that review onthe ground that the Corps failed — as far as the record shows —to consider the results of its own 2003 report, "SSFATE[Suspended Sediment FATE] Modeling of Arthur KillDredging."159 This report used a new model to derivepredictions regarding the effects of dredging which differedsignificantly from those of the reports on which the 1999 FEISrelied. Notably, the 1999 FEIS concluded that resuspended sediments wouldtravel no further than 500 feet from the dredge; the SSFATEReport predicts that resuspended sediments will travel up to twomiles.160 The Corps' January 2004 EA/LRR addressed theSSFATE Report, albeit only in the context of the impact ofdredging on fish habitats. The failure to give greaterconsideration to the SSFATE Report, though questionable, does notby itself demonstrate that the Corps failed to take the requisite"hard look." "NEPA does not require that [the Court] decidewhether [a finding of no significant impact] is based on the bestscientific methodology available."161 The Corps' analysisof sediment resuspension was based on adequate scientific data.162

Accordingly, the Corps' determination, in its December 16, 2004memorandum and its February 28, 2005 Statement of Findings, thatthe designation of the Bay as a CERCLA Study Area, by itself, didnot require additional NEPA documentation, is beyond reproach.Plaintiffs suggest that the AOC signalled a new public policy infavor of cleaning the Bay, requiring the Corps to revisit theentirety of its prior analysis of the environmental impacts ofdredging. However, even if CERCLA designation represents a shiftin public policy, it is irrelevant to the Corps' NEPAobligations: as in Swanson, a shift in public policy, byitself, is not an environmental change that requires additionalNEPA review. The Corps' extensive prior environmental reviewssufficiently analyzed the environmental impacts of dredging inthe Bay, on, inter alia, water quality,163 noise, odor and aesthetics,164geological stability,165 exposure of biological receptorsto contaminants,166 and human health andsafety,167 and considered methods for minimizing thoseeffects. This review has not been affected by the change in legalstatus of the Bay. Whether the HDP should proceed despite thechange in the legal status of the Bay is a legal and policydetermination rather than a scientific or empirical one, and theCorps' brief dismissal of this issue was sufficient to constitutea hard look.168

c. The Impact of the HDP on the RI/FS

The important question here, however, is not whether the merefact of the AOC itself somehow called for additional NEPA review;the question is whether the HDP will have significant impacts onthe RI/FS that will be conducted in the Bay pursuant to the Feb. 2004 AOC.169 As I havesaid, the fact that sampling for an RI/FS will be performed is aphysical change in the activities that will take place in theBay, not just a change in legal status. When the Army Corpsconducted its pre-February, 2004 environmental analysis, it didnot know that Tierra would be carrying out sampling studies foran RI/FS in the Bay. The presence of Tierra's sampling activitiesin the Bay is a physical change. This sampling is likely to beessential for the effectiveness of the EPA's cleanup of the Bay(or to determine whether such a cleanup is feasible). Dredgingmay significantly disrupt or frustrate Tierra's activities, andtherefore delay or prevent a cleanup of the Bay. The Corps' priorreview of dredging methods and the direct environmental effectsof resuspension due to dredging does not address the issue ofwhether dredging will interfere with sampling.

i. Pre-December 29, 2004

The Corps' pre-December 29, 2004 consideration of the possibleeffects of dredging on the RI/FS was inadequate. Many of thedocuments on which the Corps relies — specifically, the emailcommunications between the EPA and the Corps prior to October, 2004, attempting to arrange ameeting between EPA and Corps officials to discuss the impact ofthe AOC — are without substance.170 The Corps'substantive consideration of the issue began in October 2004 atthe earliest. The record establishes that the Army Corps, despiteits efforts to review its dredging methods and re-examine itsprior environmental analysis, failed to give seriousconsideration to the potential impacts of dredging on samplingfor the RI/FS, or the means by which those impacts could beminimized, before awarding the Arthur Kill dredging contract onDecember 29, 2004.

The Corps' determination that dredging would have nosignificant impact on the RI/FS was based almost entirely on theEPA's statements, as recorded in the Corps' internal documents.First, a December 1, 2004 memo records that the EPA informedthe Corps that "whether Newark Bay is designated a Superfund Sitewill not prevent all activity, such as harbor deepening."Clearly, a statement that dredging need not halt altogether isnot the same as a statement that dredging will not havesignificant impacts on the RI/FS.

The Corps' record of the December 6, 2004 meeting with the EPAstates that the EPA informed the Corps that "based on existinginformation and ongoing coordination, the dredging planned for the HDP in NewarkBay would not delay or prevent an effective cleanup."171Such "[s]imple, conclusory statements of `no impact' are notenough to fulfill an agency's duty under NEPA."172"[C]onclusory remarks . . . do not equip a decisionmaker to makean informed decision about alternative courses of action or acourt to review the [agency's] reasoning."173

This conclusory statement is no more satisfactory because itoriginates outside the Army Corps, in an agency with relevantexpertise. An agency is justified in relying on another agency'sfinding of no significant impact where that agency's finding is supported by reasonedanalysis.174 There is no indication in the record herethat the EPA's statement is supported by anything more than ahunch.175

The Corps argues that there is "no practical reason why theArmy Corps cannot reasonably rely upon EPA's informalstatements."176 This argument misses the point: there isno reason why a conclusory statement that would not pass musterunder NEPA if made by the Army Corps itself should be foundsufficient simply because it originated with an outside entity.To hold otherwise would render NEPA toothless. The fact that the EPA possessesspecial expertise in this matter makes no difference. Theexpertise and analysis underlying the agency's findings must beapparent from the record. That is not the case here.

The Corps' finding that dredging will not interfere with theRI/FS also relies heavily on the promise of future coordinationbetween the Corps and the EPA. The Second Circuit has held that"[w]hen the adequacy of proposed mitigation measures is supportedby substantial evidence, the agency may use those measures as amechanism to reduce environmental impacts below the level ofsignificance that would require an [S]EIS."177 The Courthas no reason to doubt the Corps' good-faith intention tocoordinate with the EPA. The record shows, for example, that theCorps and the EPA have communicated regarding the Corps' dredgingschedule.178 However, the record does not contain anysubstantive discussion of the form this coordination will take,or how the effectiveness of that coordination will be monitored.The Corps' "Construction Monitoring and Management Plan,"discussed in the 1999 FEIS, is of course silent on the issue ofthe impact of dredging on the RI/FS, which was not planned until2004.179 The Corps' ongoing monitoring obligations under the WQCs, thoughsubstantial, also do not address this specific issue. NEPArequires that the Corps give these issues timely and publicconsideration.180

The Corps' December 16, 2004 memorandum contains no furtheranalysis of the impact of dredging on the RI/FS.181 Thememorandum simply relies on the fact that "no substantial changesin the physical or chemical nature of [the Bay's] sediments inthe project occurred as a result of the AOC."182 For the reasons given above, this statement, while true, misses thepoint. The signing of the AOC was — of course — a mere legalchange, which did not affect the physical character of the Bay.The point is that, pursuant to the AOC, an RI/FS will take placein the Bay, something that was not true before the AOC. TheCorps' dredging activities may have significant impacts on theRI/FS, and thus on the environment. That issue — an empirical andscientific question — should have been explored properly, but wasconsistently overlooked. I therefore find that the Corps failedto take a hard look at the significance of the AOC beforeDecember 29, 2004, and was in violation of NEPA and the APA withrespect to the AK 41/40 Project.

ii. Pre-March 11, 2005

Between December 29, 2004 and March 11, 2005, the Corpsprepared a draft Statement of Findings, and produced a number ofdeclarations in opposition to plaintiffs' motion for apreliminary injunction. The Statement of Findings contains nofurther analysis of the possible impact of dredging on the RI/FS.The Statement merely repeats the Corps' prior determinations thatthe February 2004 designation of the Bay as a CERCLA Study initself does not require NEPA documentation, that dredging neednot entirely halt for the RI/FS to take place, and that the EPA will coordinate its activities withthe Corps.183 The Declaration of George Pavlou, as notedabove, is simply too conclusory to constitute the requisite "hardlook." The Declaration of Robert Engler contains a detailedrebuttal of plaintiffs' contention that "dredging as currentlyproposed under the Project will resuspend and redistributeunacceptable amounts of contaminated sediments into NewarkBay."184 The basis for Dr. Engler's conclusory statementthat "the Project, as currently proposed, will not negativelyimpact the [EPA's] RI/FS," however, is entirely unclear from therecord.185 I therefore find that the Corps had not taken a sufficiently "hardlook" at the impact of dredging on the RI/FS by March 11, 2005,and was in violation of NEPA and the APA with respect to thedecision to begin the 50 foot HDP.

The Corps failed to take a hard look at the possible effects ofdredging on the RI/FS before December 29, 2004 or March 11, 2005.Plaintiffs, for their part, have submitted expert testimony thatraises a substantial possibility that dredging will havesignificant effects on the RI/FS. "A party challenging theagency's decision not to prepare a supplemental EIS must showonly that there is a substantial possibility that the action mayhave significant new impacts, not that it clearly will have suchimpacts."186 On the basis of the present, deficientrecord, it was arbitrary and capricious for the Corps to decidethat it was not required to prepare an SEIS to consider theeffects of dredging on the RI/FS.187 Although plaintiffs have brought very narrow claims, thelanguage of their Complaint and motion papers suggests that theyhave very broad objections to the Corps' project. It is thereforeimportant to stress the narrowness of today's holding. I holdonly that the Corps failed to take a hard look at the potentialimpacts of dredging on the RI/FS, and at methods of coordinationwith the EPA that might reduce those impacts, if any, and thatthe Corps' decision to proceed without an SEIS in the absence ofsuch a hard look was arbitrary and capricious. I do not hold thatthe Corps' review was inadequate with respect to any other issuesraised by plaintiffs. Nor do I hold that the impact of dredgingon the RI/FS will, in fact, be significant enough to require thepreparation of an SEIS. The Court has no competence to make thatevaluation on the basis of the present record.188 It isentirely possible that, once the Corps has taken the necessary`hard look' at the issue, it will be justified in finding that noSEIS is required.

This Opinion addresses only the question of whether the Corpsis in violation of NEPA and the APA. Further briefing will berequired to address the issue of remedy. In particular, the parties should address theissue of whether the additional environmental review conducted bythe Corps in the course of preparing its proposed EA issufficient to moot plaintiffs' demand for relief.189


For the foregoing reasons, I find that the Corps' December 29,2004 decision to proceed with the AK 41/40 Project, and its March11, 2005 decision to proceed with the HDP 50 foot Project, weremade without a "hard look" at the environmental consequences, andwere arbitrary and capricious, in violation of NEPA and the APA.The parties are to jointly propose a briefing schedule on theissue of remedy, no later than August 19, 2005. At the same time,the parties should submit letter briefs of no more than fivepages addressing the issue of the extent of the record to beconsidered by the Court in determining the appropriateremedy.190 SO ORDERED.

1. That is, suspending particles of contaminated sediment thathave settled on the Bay's floor into the water of the Bay.

2. In addition to the Army Corps, two interested parties,Donjon Marine, Inc., and New York Container Terminal, Inc., havebeen granted permission to intervene as defendants.

3. See Feb. 2004 AOC ¶¶ 11-14 (recounting "History ofResponse Actions"), Administrative Record ("AR") 48:16136.

4. See id. ¶¶ 14-16, AR 48:16136-37; see also Declarationof Lawrence Levine, Esq., in Support of Plaintiffs' Motion for aPreliminary Injunction ("Levine Decl.") ¶ 3, AR 48:16037.

5. See Feb. 2004 AOC ¶¶ 15-16, AR 48:16137; Levine Decl. ¶4, AR 48:16037-38.

6. See Feb. 2004 AOC ¶ 24, AR 48:16139.

7. See Declaration of George Pavlou, Director of the EPA'sEmergency and Remedial Response Division, Region 2 Office, inOpposition to Plaintiffs' Motion for a Preliminary Injunction("Pavlou Decl.") ¶ 7, AR 48:16271.

8. See id.

9. See id. ¶ 8, AR 48:16278.

10. See id. ¶ 9, AR 48:16278.

11. See Levine Decl. ¶ 6, AR 48:16038.

12. See id. ¶ 7, AR 48:16038. See also Feb. 2004 AOC, AR43:12406-61.

13. See Levine Decl. ¶ 7, AR 48:16038.

14. Feb. 2004 AOC, ¶ 34, AR 48:16141.

15. Id.

16. Feb. 2004 AOC Statement of Work at 3, AR 48:16147.

17. Id.

18. Id. at 10, AR 48:16154.

19. See Levine Decl. ¶ 8, AR 48:16039.

20. See id. ¶ 9, AR 48:16039.

21. See id.

22. See Pavlou Decl. ¶ 10, AR 48:16272.

23. See id.

24. See Declaration of Thomas H. Wakeman, General Manager ofWaterways Development, Port Commerce Department, Port Authorityof New York and New Jersey, in Opposition to Plaintiffs' Motionfor a Preliminary Injunction ("Wakeman Decl."), ¶ 5, AR48:16310.

25. See id.

26. Id. ¶ 8 (summarizing study), AR 48:16311.

27. See id. ¶¶ 10-11, AR 48:16312-13.

28. See id.

29. See id. ¶ 12, AR 48:16313-14.

30. See Declaration of Jenine Gallo, Army Corps LeadWildlife Biologist and Section Chief in the Environmental Branchof the Planning Division, in Opposition to Plaintiffs' Motion fora Preliminary Injunction ("Gallo Decl."), ¶¶ 4-5, AR48:16220-21.

31. See id.

32. See id., ¶ 6, AR 48:16221. Some parts of the project,including the Arthur Kill channel deepening, were consolidatedfor purposes of authorization and budgeting, but notimplementation. See January 2004, Environmental Assessment andLimited Reevaluation Report on Consolidated Implementation of theNew York New Jersey Harbor Deepening Project ("Jan. 2004EA/LRR"), AR 3:380.

33. See Gallo Decl. ¶ 6.

34. See id. ¶ 5. See also July 1980 Final EnvironmentalStatement, Newark Bay — Kill Van Kull Navigation Project, AR27:10700-10.

35. December 1999 FEIS, New York and New Jersey HarborNavigation Study ("1999 FEIS"), AR 11:2581.

36. Id., AR 11:2796.

37. Id., AR 11:2804.

38. See Gallo Decl. ¶ 10, AR 48:16223.

39. See id.

40. See id. ¶ 11, AR 48:16223-24.

41. See id. ¶ 12, AR 48:16224.

42. See Jan. 2004 EA/LRR, AR 3:324-578.

43. Id., AR 3:419.

44. See Gallo Decl. ¶ 22, AR 48:16226. Section 401 of theClean Water Act requires federal agencies (or any other person)to apply for a license from a state if they intend to engage inany "construction or operation" that will result in a dischargeof pollutants into the navigable waters of that state.33 U.S.C. § 1341(a)(1).

45. See Gallo Decl. ¶¶ 23-25, AR 48:16227.

46. See id. ¶ 25, AR 48:16227.

47. See New York State Department of EnvironmentalConservation, Special Conditions for DEC Permit No.2-6499-00001/00002, AR 48:16259.

48. Id.

49. See February 13, 2004 email from Patricia Hick of theEPA to Thomas Shea of the Army Corps, AR 42:12550.

50. February 17, 2004 email from Shea to Hick, AR 42:12550.

51. See March 11, 2004 email from Shea to Distribution List,AR 42:12551.

52. Id.

53. See AR 42:12552-53, 13000-03. For example, Lorraine Leeof the Army Corps emailed Shea on March 17, 2004, to ask "How do[Occidental's] activities and suspense dates fit in with ourschedules?" AR 42:13003. There is no record of an answer.

54. See May 10, 2004 email from Butler to Shea, AR 42:12561; October 14, 2004 Email from Butler to Shea, AR42:12562-63.

55. See Levine Decl. ¶ 22, AR 48:16043-44.

56. May 3, 2004 Email from Debbie Mans, Policy Associate ofNY/NJ Baykeeper, to Shea, AR 42:18000.

57. September 28, 2004 Letter from Plaintiffs to Amelia M.Wagner, Office of Regional Counsel, EPA, AR 42:11479-85.

58. See October 14, 2004 email from Butler to Shea andresponsive emails, AR 42:12562-63.

59. See Pavlou Decl. ¶ 12. Although Pavlou's Declaration wasprepared after the closing of the record with respect to theArthur Kill project, the Court may consider it for the purpose ofexplaining what took place at the October 18 meeting, where therecord is otherwise silent. See Airport Impact Relief, Inc. v.Wykle, 192 F.3d 197, 209 (1st Cir. 1999) ("So long as the new[affidavit] is explanatory of the decisionmakers' action at thetime it occurred ? and does not contain post-hocrationalizations for the agency's decision ? the new [affidavit]may be considered.").

60. November 24, 2004 Letter from Plaintiffs to Polo, AR42:11486-88.

61. December 1, 2004 Memorandum from Adam Perelson of the ArmyCorps to Jenine Gallo "re: conversation with Elizabeth Butler ofEPA regarding Newark Bay," AR 42:12564.

62. Id.

63. December 1, 2004 Memorandum from Perelson to Bill Shadelof the Army Corps "re: conversation with Alice Yeh of EPAregarding Newark Bay." AR 42:12565.

64. See December 6, 2004 Meeting Agenda, "Corps/EPA Meetingto Discuss: EPA CERCLA Study of Newark Bay and the NRDC Letter toCol. Polo.," AR 42:12573.

65. December 6, 2004 Memorandum for Record by Nicholson ("Dec.6 Nicholson Mem."), AR 42:12574-75.

66. Id. Shea also produced a Memorandum for Record for theDecember 6 meeting. Shea's memorandum simply records that "TheEPA saw no reason for the USACE to stop any of its navigationprojects," without further elaboration. AR 42:12572.

67. Dec. 6 Nicholson Mem.

68. See December 8, 2004 Memorandum for Record, "Meetingwith Natural Resources Defense Council (NRDC)," AR 42:12577-79.

69. See Gallo Decl. ¶ 18, AR:4816225.

70. See December 16, 2004 Memorandum for Record,"Preliminary Results of PL-E Reanalysis of HDP Post-EPA CERCLADesignation of Newark Bay" ("Dec. 16 Mem."), AR 2:259-63.

71. See id. ¶ 3.

72. See December 14, 2004 Memorandum to Record, "Approacheson Minimizing Re-suspension of Sediment in Dredging," AR2:264-73.

73. See December 14, 2004 Memorandum to Record, "Comparisonof Hudson River PCBs Cleanup and NY Harbor 50," AR 2:274-79.

74. Id.

75. See Dec. 16 Mem., AR 2:260.

76. Id.

77. Id.

78. Id., AR 2:262-63.

79. See December 29, 2004 Letter from Army Corps to DonjonMarine Co., Inc., AR 39:15000-02.

80. See January 4, 2005 Notice of Intent to Sue, AR42:11490-503.

81. See Gallo Decl. ¶ 21, AR 48:16226. The two reports arethe June 2004 Inventory Report, prepared by Tierra as part of thedraft work plan for the RI/FS, AR 28:10711-11205, and the June2003 Containment Assessment and Reduction Project: NY/NJ HarborSediment Report 1998-2001 ("CARP Report") prepared by the NewYork State Department of Environmental Conservation, Division ofWater, AR 29:11206-11301. Plaintiffs do not rely on these reportsin their motion for summary judgment.

82. See SOF, AR 1:1-14120.

83. See id., AR 1:1-16, 56-61.

84. See id., AR 1:1-16. See also id., "Draft 2005 NRDC NOIResponse Table ¶ 50," AR 1:189-94 ("the EPA has repeatedly statedthat they do not consider the [HDP] to be an interference withthe CERCLA Study of the Newark Bay area. Further, since thematerial to be removed by the HDP dredging is tested prior to itsremoval to determine its placement options and these test resultsare provided to the state regulatory agencies for their use inissuing Water Quality Certificates, the District is confidentthat the material being removed will not impact the results ofthe FS/RI or any potential remedial action.").

85. Declaration of Robert M. Engler, Ph.D, in Opposition toPlaintiffs' Motion for a Preliminary Injunction ("Engler Decl.")¶ 3, AR 48:16305.

86. Id. ¶ 17, AR 48:16305.

87. See SOF, AR 1:9-11.

88. See March 11, 2005 Letter from Army Corps to BeanStuyvesant, L.L.C., AR 39:15063.

89. Robertson v. Methow Valley Citizens Council,490 U.S. 332, 348 (1989) (quoting 115 Cong. Rec. 40416 (Dec. 20, 1969)(remarks of Sen. Henry M. Jackson)).

90. See 42 U.S.C. § 4332(C).

91. See id.

92. Robertson, 490 U.S. at 348.

93. The CEQ, created under NEPA, is responsible forpromulgating regulations that supplement NEPA's statutoryrequirements.

94. See 40 C.F.R. §§ 1501.3, 1501.4, 1508.9. See alsoNational Audubon Soc'y v. Hoffman, 132 F.3d 7, 12 (2d Cir.1997).

95. Sierra Club v. Espy, 38 F.3d 792, 796 (5th Cir. 1994).See also 40 C.F.R. § 1508.9(a).

96. National Audubon Soc'y, 132 F.3d at 13.

97. Orangetown v. Gorsuch, 718 F.2d 29, 38 (2d Cir. 1983).

98. Marsh v. Oregon Natural Resources Council, 490 U.S. 360,372 (1989) (quoting 40 C.F.R. § 1502.9(c)).

99. Id. at 373.

100. Id.

101. See id. at 374. At the time, the Court has not beenrequested to determine whether an SEIS should be prepared, butonly whether the Corps' decision to proceed with the HDP in theabsence of an SEIS was supported by a hard look at the relevantfacts, and was not arbitrary or capricious.

102. Senville v. Peters, 327 F. Supp. 2d 335, 356 (D. Vt.2004) (citing National Audubon Soc'y, 132 F.3d at 13(discussing determination of significance in deciding whether toprepare EIS)).

103. See Friends of River v. Federal Energy Regulatory Com.,720 F.2d 93, 109 (D.C. Cir. 1983).

104. Stewart Park & Reserve Coalition, Inc. v. Slater,352 F.3d 545, 557 (2d Cir. 2003).

105. Kleppe v. Sierra Club, 427 U.S. 390, 410, n. 21 (1976)(quoting NRDC v. Morton, 458 F.2d 827, 838 (D.C. Cir. 1972)).

106. Robertson, 490 U.S. at 350.

107. See Sierra Club v. United States Army Corps of Eng'rs,772 F.2d 1043, 1050 (2d Cir. 1985).

108. 5 U.S.C. §§ 706(2)(A), (D).

109. Vermont Pub. Interest Research Group v. United StatesFish & Wildlife Serv., 247 F. Supp. 2d 495, 505 (D. Vt. 2002).

110. See Marsh, 490 U.S. at 376.

111. Id. at 378.

112. Village of Grand View v. Skinner, 947 F.2d 651, 657 (2dCir. 1991).

113. Id.

114. NRDC v. Muszynski, 268 F.3d 91, 97 (2d Cir. 2001).

115. Marsh, 490 U.S. at 378.

116. Sierra Club v. United States Army Corps of Eng'rs,701 F.2d 1011, 1035 (2d Cir. 1983) (quoting Warm Springs Dam TaskForce v. Gribble, 621 F.2d 1017, 1024 (9th Cir. 1980)).

117. Id.

118. National Audubon Soc'y, 132 F.3d at 14. Cf. Friends ofthe Clearwater v. Dombeck, 222 F.3d 552, 558 (9th Cir. 2000) (inSEIS case, admitting documents created after the start oflitigation to determine issue of remedy, but not liability).

119. See Fed.R.Civ.P. 56; Celotex Corp. v. Catrett,477 U.S. 317, 325, (1986).

120. United States v. Hays, 515 U.S. 737, 742 (1995)(quoting FW/PBS, Inc. v. Dallas, 493 U.S. 215, 230-31 (1990))(alteration in original).

121. New York Pub. Interest Research Group v. Whitman,321 F.3d 316, 325 (2d Cir. 2003) (quotations omitted).

122. Lujan v. Defenders of Wildlife, 504 U.S. 555, 573(1992) ("The person who has been accorded a procedural right toprotect his concrete interests can assert that right withoutmeeting all the normal standards for redressability andimmediacy. Thus, under our case law, one living adjacent to thesite for proposed construction of a federally licensed dam hasstanding to challenge the licensing agency's failure to preparean environmental impact statement, even though he cannotestablish with any certainty that the statement will cause thelicense to be withheld or altered, and even though the dam willnot be completed for many years.").

123. Friends of the Earth v. Laidlaw Env'tl. Servs.,528 U.S. 167, 183 (2000).

124. See Declarations of Fletcher Harper, Laurel Kearns,James Scarcella, Melvin Wedbush and Andrew Willner in Support ofPlaintiffs' Motion for Summary Judgment.

125. Hunt v. Washington State Apple Advertising Comm'n,432 U.S. 333, 343 (1977).

126. See generally Declaration of Lawrence Levine in Supportof Plaintiffs' Motion for Summary Judgment.

127. See, e.g., Ragin v. Harry Macklowe Real Estate Co.,6 F.3d 898, 905 (2d Cir. 1993) (finding standing for housingorganizations forced to divert resources away from otheractivities to investigate and challenge defendants'discriminatory housing practices). See also California v.Atlantic Richfield Co. (In re Methyl Tertiary Butyl Ether Prods.Liab. Litig.), No. MDL 1358, 2005 WL 1500893, at *3 (S.D.N.Y.Jun. 24, 2005); Transport Workers Union of Am. v. New York CityTransit Auth., 342 F.Supp. 2d 160, 167 (S.D.N.Y. 2004); Padbergv. McGrath-McKechnie, 203 F.Supp. 2d 261, 274 (E.D.N.Y. 2002).

128. Ikelionwu v. United States, 150 F.3d 233, 237 (2d Cir.1998).

129. Rochester v. United States Postal Service,541 F.2d 967, 977 (2d Cir. 1976).

130. Army Corps' Memorandum of Law in Support of Motion forSummary Judgment ("Army Corps Mem.") at 45.

131. Id. at 45 n. 15 (citing "Issues: Dredging of HarborShip Channels," document available at

132. Although plaintiffs repeatedly criticize the project as awhole, claiming that dredging will result in unacceptable levelsof resuspension of contaminated sediments, see, e.g.,Plaintiffs' Memorandum of Law in Support of Motion for SummaryJudgment at 19, 21, plaintiffs make it quite clear that thespecific basis for their motion is the narrower claim thatdredging will interfere with the RI/FS.

133. See, e.g., May 3, 2004 email from Baykeeper to Shea,Army Corps, AR 42:18000 (requesting meeting to "discuss [ArmyCorps] coordination with EPA, especially with respect to dredgingin Newark Bay and other areas under study under the guise ofCERCLA."); September 28, 2004 Letter from NRDC to Amelia Wagner,Office of Regional Counsel, EPA, copied to Army Corps (urging EPAto revise draft plan for RI/FS in light of Army Corps'activities).

134. Indeed, even after plaintiffs brought this suit, the ArmyCorps continued to maintain that it had not "consummated itsdecisionmaking process on the new information." Army Corps' April26, 2005 Letter to the Court at 2.

135. See Ocean Advocates v. United States Army Corps ofEng'rs, 402 F.3d 846, 863 (9th Cir. 2005) ("It would proveparticularly unfair to [plaintiff], and the public, to find thatlaches bars this action when [plaintiff] reasonably attempted toresolve its ? concerns administratively in the first instancebefore spending the necessary time and expense to litigate.").

136. See Levine Decl. ¶ 22.

137. Riverdale Env'tl Action Comm. along Hudson-R.E.A.C.H. v.Metropolitan Transp. Auth., 638 F. Supp. 99, 103 (S.D.N.Y. 1986)(quoting Steubing v. Brinegar, 511 F.2d 489, 495 (2d Cir.1975)). Accord Apache Survival Coalition v. United States,21 F.3d 895, 912 (9th Cir. 1994) ("Prejudice in this context must bemeasured by what Congress defines as prejudice. The primaryconcern is whether the harm that Congress sought to preventthrough the relevant statutory scheme is now irreversible, or isreversible only at undue cost to the relevant project.").

138. Army Corps Mem. at 46.

139. Id. at 25 (citing, inter alia, Wisconsin v.Weinberger, 745 F.2d 412, 418 (7th Cir. 1984) (holding that "anagency cannot have acted arbitrarily or capriciously in decidingnot to file an SEIS unless the new information provides aseriously different picture of the environmental landscape suchthat another hard look is necessary.")).

140. Id. at 26.

141. See supra Part II.A, pp. 7-10. The parties hotlydispute the extent to which the AOC commits the EPA to conductsuch a clean-up. The Army Corps contends that a clean-up is onlya possibility. Despite plaintiffs' claims that some remedy isinevitable, the AOC itself states that one of the "alternativeremedial actions" the EPA will consider at the conclusion of theRI/FS is "[a] no action alternative." Feb. 2004 AOC Statement ofWork at 3, AR 48:16154. However, although it is not certainthat the EPA will clean up the Bay, NEPA requires considerationof "reasonably foreseeable" effects, not just certain ones. SeeMid States Coalition for Progress v. Surface Transp. Bd.,345 F.3d 520, 549 (8th Cir. 2003) ("an environmental effect is`reasonably foreseeable' if it is sufficiently likely to occurthat a person of ordinary prudence would take it into account inreaching a decision.") (quoting Sierra Club v. Marsh,976 F.2d 763, 767 (1st Cir. 1992)). There can be no serious doubt thatsome remedial action is sufficiently likely to occur that thepossibility must be taken into consideration.

142. 40 C.F.R. § 1502.16.

143. 40 C.F.R. § 1508.8.

144. Id.

145. 40 C.F.R. § 1508.7.

146. See Declaration of Robert J. Livingstone, Ph.D., inSupport of Plaintiffs' Motion for a Preliminary Injunction("Livingstone Decl."), ¶¶ 22-25 (arguing that the Corps' proposeddredging will "complicate, prolong and potentially undermine theSuperfund cleanup. It will do so by redistributing contaminants,thus rendering moot or useless the sampling results from theSuperfund study. The conditions sampled in the RI/FS will notreflect reality after dredging.").

147. 87 F.3d 339 (9th Cir. 1996).

148. Id. (citation and quotation omitted).

149. The Corps' argument that "plaintiffs have adduced nothingmore than conclusory allegations and speculation to support theircontention" that dredging may interfere with the RI/FS ismisplaced. Army Corps Mem. at 27. First, plaintiffs havesubmitted expert analysis to support their argument: it is`speculative' only in the sense that it deals with possiblefuture events. Second, it is the Corps' duty to evaluate thesignificance of the new circumstances, not plaintiffs'.

150. See Marsh, 490 U.S. at 376; Grand View,947 F.2d at 657.

151. See Marsh, 490 U.S. at 385 ("Regardless of its eventualassessment of the significance of this information, the Corps hada duty to take a hard look at the proffered evidence."); Friendsof the Clearwater, 222 F.3d at 558 ("Although the Forest Servicenow can point to data that, if timely considered, would haveshown that the new information did not require an SEIS, this doesnot demonstrate that the Forest Service complied with NEPA, whichdemands timely and reasoned agency action."); NRDC v. Lujan,768 F. Supp. 870, 889 (D.D.C. 1991) ("A court's role in reviewinga decision not to supplement an EIS involves carefully reviewingthe record and satisfying [itself] that the agency has made areasoned decision based on its evaluation of the significance —or lack of significance — of the new information. . . .Affidavits such as those presented here are no substitute for anexplanation in the [record] itself that environmental impactswere considered and determined to be significant or not.")(quotation omitted).

152. The Army Corps argues that this standard — which it calls"a `one-step' inquiry whereby a plaintiff need only prove thatthe agency failed to take a `hard look' at purported information,regardless of its significance" — may result in courts finding"violations of NEPA even where the new information is patentlyinsignificant." Army Corps Reply Memorandum in Support of Motionfor Summary Judgment ("Army Corps Reply Mem.") at 2. While thisrisk may exist, NEPA is a procedural statute, and requirescompliance with its procedures at the proper time; failure tocomply with those procedures cannot be excused in hindsight. As apractical matter, though, the Army Corps' concern is overstated,for two reasons. First, under Marsh, courts must apply a"rule of reason" to their review of the sufficiency of theagency's decision-making; in addition, Marsh makes clear thatcourts need only ask whether an agency's decision was based on"consideration of the relevant factors." Marsh,490 U.S. at 375, 378. If new information is truly patently insignificant,an agency may be able to meet its obligations under NEPA withonly the most cursory look at its significance, and if it issimply irrelevant, the agency need give it no consideration.Second, if the agency is able, during litigation, todemonstrate that information that it failed to consider in atimely manner is in fact insignificant, that may be consideredwhen determining whether any injunctive relief is required. See,e.g., Friends of the Clearwater, 222 F.3d at 560. In any case,for the reasons discussed above, the concerns raised byplaintiffs here cannot be described as irrelevant or patentlyinsignificant; plaintiffs' concerns were clearly sufficientlysubstantial to deserve proper consideration.

153. See Army Corps' April 26, 2005 Letter to the Court.

154. See id.

155. AR 2:263.

156. 33 C.F.R. § 230.10 (emphasis added).

157. Citizens Advisory Comm. on Private Prisons, Inc. v.United States DOJ, 197 F. Supp. 2d 226, 250-51 (W.D. Pa. 2001)(quoting Metcalf v. Daley, 214 F.3d 1135, 1142 (9th Cir.2000)).

158. To hold otherwise would create a perverse incentive,discouraging federal agencies from voluntarily conducting anysupplemental environmental review in response to a plaintiff'sdemands, for fear of being found to have conceded a violation ofNEPA. This would pointlessly frustrate settlement negotiations.

159. SSFATE Report, AR 30:11302-905.

160. Compare 1999 FEIS, AR 11:2798-99 with SSFATE Report, AR30:11314. See also Declaration of W. Frank Bohlen, Ph.D., inSupport of Plaintiffs' Motion for a Preliminary Injunction, ¶¶14-17 (contrasting SSFATE Report with studies relied on by theCorps), AR 48:16029-30. With respect to at least one key issue,however, the SSFATE Report is consistent with the Corps' otherstudies: the SSFATE Report concludes that resuspension fromdredging is "transient" and significantly less than resuspensionfrom other sources, including shipping. SSFATE Report, AR30:11302-905.

161. Friends of Endangered Species, Inc. v. Jantzen,760 F.2d 976, 986 (9th Cir. 1985). See also Indiana Forest Alliance,Inc. v. United States Forest Serv., 325 F.3d 851, 861 (7th Cir.2003) ("when an agency's finding of no significant impact isbased upon adequate data, the fact that the record also containsevidence supporting a different scientific opinion does notrender the agency's decision arbitrary and capricious.").

162. See, e.g., 1999 FEIS, AR 11:2798 (discussing findingsof 1997 study, "Water quality monitoring of Howland Hook DredgeOperation"); December 14, 2004 Memorandum for Record, "Approacheson Minimizing Re-suspension of Sediment in Dredging," AR 2:264(discussing findings of 2002 study, Total Suspended Sediment andTurbidity Monitoring in Newark Bay, Kill Van Kull and PortJersey"). As discussed below, however, while the Corps' reviewcovered many aspects of the environmental impact of dredging, theCorps' environmental review did not consider the issue of thepossible impacts of dredging on sampling for an RI/FS, or methodsby which those impacts could be minimized.

163. See 1999 FEIS, AR 11:2788.

164. See id., AR 11:2793.

165. See id., AR 11:2795.

166. See id., AR 11:2796.

167. See id., AR 11:2805.

168. See, e.g., Dec. 16 Mem. ("the Newark Bay issue wasaddressed in detail in the EIS, and no substantial changes in thephysical or chemical nature of its sediments in the projectoccured as a result of the ACO [sic]. Therefore all analysesconduced and conclusions derived from them in the original EISare still valid.").

169. Although it is not for plaintiffs (or the Court) to saywhether the HDP will in fact interfere with the RI/FS, I notethat plaintiffs have submitted weighty expert testimony tosupport their argument that it will have that effect. SeeLivingstone Decl. ¶¶ 22-25, supra n. 146.

170. See supra, Part II.E., n. 54.

171. Nicholson Mem., AR 42:12574.

172. Foundation on Economic Trends v. Heckler, 756 F.2d 143(D.C. Cir. 1985). See also Davis v. Mineta, 302 F.3d 1104,1122-23 (10th Cir. 2002) ("A conclusory statement that growthwill increase with or without the project, or that development isinevitable, is insufficient; the agency must provide an adequatediscussion of growth-inducing impacts."); National AudubonSoc'y, 132 F.3d at 17 (finding insufficient a conclusorystatement that mitigation measures will prevent significantenvironmental impact, where it was unsupported by detailedstudies or other substantial evidence of efficacy); Senville,327 F. Supp. 2d at 369 (finding conclusory and "dismissivetreatment" of issue insufficient to support a finding of nosignificant impact); Friends of the Earth, Inc. v. United StatesArmy Corps of Eng'rs, 109 F. Supp. 2d 30, 42 (D.D.C. 2000)(finding violation of NEPA where finding of no significant impactwas supported by "no actual analysis, only [a] conclusorystatement.").

173. NRDC v. Hodel, 865 F.2d 288, 298 (D.C. Cir. 1988).

174. See, e.g., Laguna Greenbelt v. United States Dep't ofTransp., 42 F.3d 517, 529 (9th Cir. 1994). In Laguna, theFederal Highway Administration (FHA) properly relied onconsultation with other federal agencies to determine that aforest fire had not given rise to significant new circumstancesrequiring an SEIS. The FHA's consultation with one agencyresulted in a new Biological Opinion. The second agency, the ArmyCorps, submitted a written report to the FHA, prepared by itsbiological experts.

175. The Army Corps argues that Pavlou's February 28, 2005Declaration sets out the basis for the EPA's December 6, 2004statements. Even if this is true, Pavlou's declaration isscarcely less conclusory. Pavlou states that "dredging will notdiminish the usefulness of the RI/FS" because the RI/FS must, inany case, "account? for" the "current and existing conditions inNewark Bay," which include vessel traffic and other ongoingmaintenance dredging. Pavlou Decl. ¶ 11, AR 48:16273. Pavlou'sdeclaration provides no analysis of the relative impacts of theHDP and those other sources of disturbance. Nor does Pavloudiscuss measures the Corps may take to reduce the impact ofdredging, or to help the EPA to `account for' the Corps'activities.

176. Army Corps Reply Mem. at 7.

177. National Audubon Soc'y, 132 F.3d at 17.

178. See supra, Part II.E., n. 59.

179. See 1999 FEIS, AR 11:2867-69.

180. Plaintiffs' expert suggests a number of ways in which theCorps should coordinate its activities with the RI/FS, including:"by sampling before and after Deepening activities occur (tomeasure changes) . . . by pinning down where redistributed(contaminated) sediment is settling and then sampling in thoselocations, and by timing the dredging and blasting so that thoseactivities do not render obsolete Superfund samples takenpreviously in the same areas." Livingstone Decl. ¶ 24. Of course,NEPA does not require that the Corps actually adopt any of thesemeasures.

181. In preparing the December 16 Memorandum, the Corpsre-reviewed the dredging methods used in the Hudson RiverSuperfund Site, in which "limited navigational dredging" willtake place alongside a Superfund cleanup (as opposed to anRI/FS). See December 14, 2004 Memorandum to Record, "Comparisonof Hudson River PCBs Cleanup and NY Harbor 50," AR 2:274-79. Thisreview gives serious consideration to the appropriate dredgingand resuspension control technologies for Newark Bay, in order toreduce resuspension's direct effect on the environment. However,it does not touch on the key issues of the potential impact ofdredging on sampling to be conducted for the RI/FS, or on methodsof coordination that might minimize that impact. In fact, thediscussion states that in Newark Bay, "resuspension is a concern"only because "it may bury benthic [i.e., bottom-dwelling]organisms." AR 2:275.

182. Dec. 16 Mem., AR 2:262.

183. The only new substantive discussion in the Statement ofFindings appears in the "Draft 2005 NRDC NOI Response Table,"where the Corps argues that "since the material to be removed bythe HDP dredging is tested prior to its removal to determine itsplacement options and these test results are provided to thestate regulatory agencies for their use in issuing Water QualityCertificates, the District is confident that the material beingremoved will not impact the results of the FS/RI or any potentialremedial action." AR 1:189. But there is no support for theconclusion that pre-removal testing will avoid any untowardimpact on the RI/FS.

184. Engler Decl. ¶ 3. See supra Part IV.C.2.b.

185. Id. ¶ 4. See, e.g., Klamath-Siskiyou Wildlands Ctr. v.BLM, 387 F.3d 989, 996 (9th Cir. 2004) ("the only mention ofcumulative effects in the two EAs comes in the form ofgeneralized conclusory statements that the effects are notsignificant or will be effectively mitigated. At oral argument,counsel for the BLM assured us that to the eye of the `agencyspecialists,' the scant information included in the EAs issufficient to determine what the cumulative environmental impactswill be and supports the conclusory statements that they will notbe significant. But while the conclusions of agency experts aresurely entitled to deference, NEPA documents are inadequate ifthey contain only narratives of expert opinions.").

186. Senville, 327 F. Supp. 2d at 356 (citing NationalAudubon Soc'y, 132 F.3d at 18 (applying "substantialpossibility" standard to decision not to prepare an EIS)).

187. See National Audubon Soc'y, 132 F.3d at 18 (findingthat Forest Service's decision to proceed with project withoutpreparing an EIS was arbitrary and capricious, "based on therecord before it," given its failure to take a hard look at theenvironmental consequences). See also NRDC, 268 F.3d at 97 ("anagency decision may be set aside where the agency has ? entirelyfailed to consider an important aspect of the problem.")(quotation omitted).

188. See id. (holding that the question of whether "theimpact of the proposed action was potentially significant ? issubstantive, and consequently not one within the purview of thedistrict court. Rather, it is one the Forest Service must decide.The Forest Service's failure to weigh the factors related to itsproject's environmental impact is a flaw that precludes adefinitive determination as to whether the project may have asignificant impact.").

189. See Friends of the Clearwater, 222 F.3d at 560 ("`Thedistrict court could not order the Corps to conduct studiesalready completed to answer questions the Corps already hasanswered on a basis that could not be successfully challenged.'")(quoting Warm Springs Dam Task Force, 621 F.2d at 1025).

190. See, e.g., id. at 558 (in SEIS case, admittingdocuments created after the start of litigation to determine whatrelief should be granted).

Back to top