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National Environmental Policy Act PDF

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Added on  2020-05-28

National Environmental Policy Act PDF

   Added on 2020-05-28

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1COMPLAINT BRIEF THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF NORTH CAROLINANORTHERN DIVISIONBHIC, et al.,PLAINTIFFVSCase No. No. ___:___-CV-___ (___)WILMINGTON CORPS OF ENGINEERS, et al.,DEFENDANTSMEMORANDUM IN SUPPORTOF PLAINTIFFS’ MOTION FOR SUMMARY JUDGEMENTJackson Aldred NapesN.C. Bar No. 1357W. Scrubbed AssociateN.C. Bar No. 7891Foghorn & Leghorn23 North Front StreetWilmington, N.C. 28401(910) 233-1234foghornlaw@leghornlaw.comAttorneys for the Plaintiffs
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2COMPLAINT BRIEF LIST OF ABBREVIATED FISHERY MANAGEMENT TERMSBHIC – Bald Head Island ConservancyCFR – Code of Federal RegulationsDEIS – Draft Environmental Impact StatementEFH – Essential Fish HabitatEIS – Environmental Impact StatementFEIS – Final Environmental Impact StatementFWS – United States Fish and Wildlife ServiceGCP – General Construction PermitNEPA – National Environmental Policy ActNFMS – National Marine Fisheries ServiceUSACE – United States Army Corps of Engineers
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3COMPLAINT BRIEF The case challenges the USACE as Wilmington district has been designated as the trusteeagency of USACE by the NEPA and has been provided the responsibility of assuring that anyproject which may have an impact on the environment has to be assessed in a proper manner. Inthe given case a General Construction permit has been granted by the USACE to Bald HeadIsland in relation to a dredging project relying in their Final Environmental Impact Statement(FEIS) on August, 2014. This act was not in compliance with the provisions of NEPA. JURISDICTIONIn relation to the provisions of the National Environmental Policy Act Section, 42 U.S.C§ 4321 -4347, Endangered Species Act 16 § U.S.C 1531-1599 and Administrative Procedure ActSection 5 § U.S.C. 701- 706, the court has subject matter jurisdiction over Bald Head IslandDredging Project. The court has jurisdiction in relation to this action as per 28 U.S.C. § 1331along with in under the jurisdiction to make an officer of the US as per 28 U.S.C. § 1361. As thesite of the concerned action is North Carolina the proper Venue for the action would be theEastern District Court of North Carolina as per under Article 28 U.S.C § 1391 (b), (e). Thelocation of the defendants in relation to the case also provides support towards selecting the courtof North Carolina as an appropriate forum. STANDARD OF REVIEWThe case is a challenges an agency action which had been brought under the provisions of theAdministrative Procedure Act. The courts while reviewing any agency determination withrespect to the Administrative Procedure Act only takes into consideration those facts which are
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4COMPLAINT BRIEF present in the administrative records as per the case of Audubon Naturalist Soc'y of the Cent.Atl. States, Inc. v. U.S. Dep't of Transp., 524 F.Supp.2d 642, 660 (D.Md.2007). A summary judgment has to be granted by the court where“the movant shows that there is nogenuine dispute as to any material fact and the movant is entitled to judgment as a matter oflaw.” According to Local Civil Rules 56.1 and 10.1, Fed, R, Civ. P. 56, the party who asks for asummary judgment has to bear the initial duty of letting the district court known about thereasons for its motion as well as identifying the portions of the pleadings, answer tointerrogatories and admission to files, depositions, along with any affidavits to show that there isno genuine issue in the case in relation to any of the material facts as per ” Celotex Corp v.Catrett, 477 U.S. 317, 323-24 (1986) (quoting former Fed. R. Civ. P. 56 (c)).The plaintiffs’ respectfully appeal before the court in relation to a summary judgment order intheir favor declaring several failures and unlawful actions on the part of US Secretary ofCommerce, U.S. Corps Engineers Wilmington District , Boyden Stoat along with NationalMarine Fisheries Service. The claim has been brought within the zone of interest by the BHIC tobe regulated or proetcted by the NEPA. This is because, for the purpose of having standings,those groups which are interested in conservation factors have to allege that such factors havenot been considered properly by the administrative agency as provided by the case of NaturalResources Defense Council., Inc v. Grant, 341 F. Supp. 356, 367 at *29-30(1972).More than substantial likelihood has been shown by the plaintiff in this case that they are willingto prevail upon merits because of the failure by Wilmington Corps of Engineers towardspreparing and Environment Impact Assessment which examines the question appropriately thatwhether the quality of the environment would be affected by the proposed dredging project.Moreover as the conservation of endangered species has been used by the location of the project,
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5COMPLAINT BRIEF such as loggerhead sea turtles, the illegal conduct of the defendant will surely harm the criticalhabitat of the turtles as provided in the case of N.C. Fisheries Ass’n v. Pritzker, No. 4:14-CV-138-D, 2015 U.S. Dist., at 21 (E.D.N.C. July 22, 2015 ). In addition while making the review of the claim the agency violated the provisions ofthe National Environmental Policy Act (NEPA). The role of the court in this is narrow and todetermine whether the decision of the agency was capacious and arbitrary as per 5 U.S.C. S. §706 (2) (A), (C). the court has to take into consideration whether the decision which has beentaken by Corps is to be considered capricious and arbitrary because it is not based on factorswhich the Congress has intended them to consider or as they have not taken into considerappropriately the potential environmental consequences of the proposed action as provided by 42U.S.C.S. § 4332 (C) and W.N.C. Alliance v. N.C. DOT, 312 F. Supp. 2d 765, 769(E.D.N.C2003). In this case the potential environmental consequences of the proposed actioninclude Supplemental Environmental Impact Statement and lack of comprehensive. FACTUAL BACKGROUNDTHE BALD HEAD DREDGING PROJECTIt is alleged that the defendants indulged in various unlawful, capricious and arbitrary actions by issuing GCP which is a permit to allow Bald Head Island Project to make an expansion. The FEIS as an initial matter is not enough comprehensive to provide various options, alternatives and mitigation actions towards tackling the environment consequences. In addition, the FEIS which has been provided does not independently and objectively assess the total range of environmental impact from the dredging project proposed. Therefore the letter provided by the National Marine Fisheries Service which comments on public notice issues on 9th March 2017 sets out clear evidence that other federal agencies order the applicants’ to supplement or change
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6COMPLAINT BRIEF their FEIS towards assessing more considerable damage from impacts to the environment which is to be caused by the project. (Especially to endangered species and fishes) ARGUMENTUS CORPS OF ENGINEERS FAIL TO DELIVER ENVIRONMENTAL IMPACTSTATEMENTS REQUIRED BY FEDERAL LAWAs provided by Section 102(2) (c) of the National Environmental Policy Act all agencies of federal government must make an Environmental Impact Statement for all significant federal actions which have considerable effect on the environment as provided by the case of Natural Resources Defense Council, Inc v. Grant, 341 F. Supp 356 at *21 (1972).A.THE FEIS FAILS TO PROPERLY EVALUATE, DIRECT, INDIRECT ANDCUMULATIVE IMPACTSAs per 40 C.F.R. § 1508.8(a) direct effect are those which are directly caused by the actions and take place at the same place and time. As per 40 C.F.R. § 1508.8(b) indirect effects are those which are caused by the actions but are latter in time or at a distant place, however are still reasonably foreseeable. As the purpose of the dredging project is to provide protection to public roads, infrastructures, businesses, homes and commercial activities which affects the living habitant in the area and the environment, it is a crucial part of DEIS to analyze both direct and indirect effect before it becomes an FEIS. The significance of direct and indirect effect analysis is considerable more for the those species which re threatened or endangered as well as terminal groin alternatives as cumulative impacts of groin is not discussed by them in relation to
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