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Oregon Natural Resources Council v. Marsh

 

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Environmental groups filed suit against the U.S. Army Corps of Engineers (Corps) under the National Environmental Policy Act (NEPA) to enjoin construction of a dam. The environmental groups argued that the Corps’s second environmental impact statement supplement (EISS) was inadequate in its failure to contemplate cumulative effects of the dam in conjunction with the two other dams already built pursuant to a 1962 congressional authorization.

This case is preceded by six other decisions. The first (Marsh I) was brought in 1985 by the Oregon Natural Resources Council (ONRC) under NEPA, challenging the Corps’s approval of this third dam on the grounds that the first EISS was inadequate. The district court held the EISS adequate and condoned the dam construction. On appeal (Marsh II), the Ninth Circuit reversed and remanded on the ground that the EISS had failed to address the cumulative effects of all three dams. On remand (Marsh III), the district court enjoined construction of the dam until the Corps could prepare a new EISS. Marsh IV was the Corps’s appeal to the Supreme Court on issues other than the inadequacy of the first EISS. Although the U.S. Supreme Court reversed with regard to the issues before it, the EISS inadequacy holding was left intact. The case was remanded to the district court (Marsh V).

The Corps issued a second EISS in 1991 addressing four alternatives; three involved completion of the dam, one did not. Of the three involving completion, two allowed for the completion with the purposes of water conservation and flood control, the third only for flood control. The latter was recommended by EISS-2. However, ONRC criticized EISS-2 during the comment period for failing to consider the cumulative effects of the dams. Nevertheless, the Corps approved further construction under this last option and moved to dissolve the outstanding injunction. ONRC filed suit in a new action to either remove the dam’s spillway or destroy the dam altogether under the Wild and Scenic Rivers Act and NEPA. These claims were not addressed in this case.

The only issue left in this case was whether EISS-2 had taken a “hard look” at the cumulative effects, as required by NEPA. The district court held that EISS-2 had complied with Marsh II.

ONRC contended that EISS-2 did not fully discuss all of the cumulative effects of the three dams. The Corps argued that Marsh II only required two elements be discussed: water temperature and turbidity, and their effects on fish.

The Ninth Circuit held that the two elements mentioned in Marsh II were mere examples of factors that could affect the fish. They were not exhaustive. The court held that on remand, the Corps needed to prepare a new EISS considering “any environmental factors essential to informed agency decisionmaking.” The Ninth Circuit also allowed ONRC attorney fees for litigation costs associated with EISS-1’s failure to assess cumulative impacts.

The dissent pointed out that even if the Corps construed Marsh II too narrowly, restricting its inquiry to only water temperature and turbidity, the Corps did not necessarily fail to take a “hard look” into the environmental consequences as required by NEPA.

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