Thursday, November 29, 2012

Hillsdale Environmental Loss v. U.S. Army Corps

Nov 28: In the U.S. Court of Alppeals, Tenth Circuit, Case No. 11-3210. Appealed from the U.S. District Court for the District of Kansas. The case concerns the construction of a new Burlington Northern Santa Fe (BNSF) rail/truck terminal outside Kansas City, Kansas. Because the preferred site contained streams and wetlands protected under Federal law, several groups (collectively, Hillsdale) brought challenges to a dredge and fill permit issued by the United States Army Corps of Engineers (Corps) under the Clean Water Act and the National Environmental Policy Act.
    The district court denied Hillsdale's motion for an injunction and granted summary judgment for the Corps and BNSF. On appeal, Hillsdale requested the Appeals Court to set aside the Corps's decision to grant the permit saying "the Corps inadequately considered alternatives to the selected site under the Clean Water Act and violated the National Environmental Policy Act by preparing an inadequate environmental assessment and failing to prepare a full environmental impact statement." The Appeals Court concluded "the Corps's decision is supported by the record, and was not an arbitrary and capricious exercise of its approval powers under federal law. . . we affirm the decision of the district court and uphold the Corps's issuance of a § 404 permit."
    Further explaining its decision, the Appeals Court said, "Hillsdale is correct that many of the comments they cite are more than mere statements of opposition; they question various aspects of the Corps's analysis, mostly its failure to analyze the cancer risks of DPM emissions but also the intermodal facility's impacts on water quality, regional air quality, and so on. But all comments Hillsdale identifies raise the same issues it raised in this appeal. As we have discussed, the Corps took the requisite 'hard look' at every one of these issues, which is all NEPA requires. . . Hillsdale cannot overcome its failure on the merits simply by pointing to
comments expressing the same concerns. If Hillsdale cannot show there is some merit to opposing opinions, they cannot demonstrate controversy. . . An additional point in the Corps's favor is that none of the federal or state agencies the Corps consulted opposed the project or the Corps's analysis. Although not dispositive, this is additional evidence of a lack of controversy. . . In short, neither the nature nor the number of the comments Hillsdale cites demonstrates the intermodal facility is controversial, let alone that the Corps's decision not to prepare an EIS was arbitrary and capricious in light of this controversy."
    Access the complete opinion (click here). [#Water, #CA10]
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