USCA1 Opinion

September 30, 1992

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-1312
SIERRA CLUB AND WILLIAM O'NEIL,
Plaintiffs, Appellants,
v.
JOHN O. MARSH, JR., ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
___________________
____________________
Before
Torruella and Boudin, Circuit Judges,
______________
and Keeton,* District Judge.
______________
____________________

Edward F. Lawson with whom Weston, Patrick, Willard & Redding

________________
___________________________________
on brief for appellants.
Anthony C. Roth with whom John Quarles, Morgan, Lewis & Bocki
_______________
_____________ ______________________
and Thomas G. Reeves, Chief Counsel, Legal Division, Maine Departm
________________

of Transportation, were on joint brief of appellees, for appel

Maine Department of Transportation.
David C. Shilton, Attorney, Environment and Natural Resour
__________________
Division, U.S. Department of Justice, with whom Barry M. Hartm
_______________
Acting Assistant Attorney General, and Robert L. Klarquist, Attorn
___________________
Environment and Natural Resources
Division, U.S. Department
Justice, were on joint brief of appellees, for federal appellees.
____________________
____________________
_____________________
* Of the District of Massachusetts, sitting by designation.
2

KEETON, District Judge.

_______________
its members ("Sierra Club"),
Environmental

Impact

Sierra Club and

two of

challenging the adequacy of an

Statement

("EIS"),

appeal

from

summary judgment entered by the United States District Court

for

the

District of

Department

of

Administration, Army
Coast

Guard

Maine

in

favor of

Transportation,
Corps of Engineers,

("agencies")

on

Sierra

appellees

Federal

Maine
Highway

and United States

Club's

National

Environmental Policy

Act ("NEPA")

claims arising out

port project in Searsport, Maine.

of a

Although it appears that

the Federal Highway Administration is ultimately responsible

for the preparation
Marsh,
_____

701

F.

of the

Supp.

final EIS, see

___

886,

916-18

(D.

Me.

Supplemental Affidavit of William Richardson

the defendant
the

EIS.

agencies were involved in

As a matter of

Sierra Club
___________
1988)

at

v.
and

1, all of

the preparation of

convenience, we will refer to the

"agencies" when discussing the EIS.

Sierra
conclusion

Club

that the

challenges

the

analysis of

district

secondary impacts

agencies' final EIS satisfies NEPA.

court's
in the

We affirm.

I.
I.
Background
Background
More

than

Transportation decided

ten

years

to build

ago, Maine

Department

a modern port

of

facility on

Sears Island in Searsport, Maine.

The port project includes

construction of a marine dry cargo terminal and the building

of a causeway

and highways

to provide full

access to the port facility.

the project appears in

rail and

road

A more detailed description of

Sierra Club v. Marsh, 769

___________
_____

F.2d 868,

872-73 (1st Cir. 1985).

In three separate cases filed in the United States
District

Court for the

initiated several

legal challenges

the port facility.

first

District of Maine,

Rulings

two cases have been

this court.

Sierra Club has

to the construction

of the district
the subject of

See Sierra Club v.

___ ____________

court in

of
the

three appeals to

Marsh, 769 F.2d

_____

868 (1st

Cir. 1985) ("Sierra Club I") (holding that NEPA requires the
_____________
federal

agencies

to

prepare

an

EIS);

Secretary of Transp., 779 F.2d 776 (1st Cir.

____________________
Club II") (affirming the
_______

under

v.

1985) ("Sierra
______

district court's decision that the

Coast Guard had unlawfully issued a permit

causeway

Sierra Club
____________

the General

Bridge

Act);

for the proposed

Sierra Club
___________

v.

Secretary of the Army, 820 F.2d 513 (1st Cir. 1987) ("Sierra
_____________________
______
Club III")(affirming
_________

the

district

court's

award

of

attorney's fees to Sierra Club).

The present appeal is from a final judgment in the

third

case, which was commenced by a complaint filed on May

-44

19,

1988.

In

this

complaint

declaratory

and injunctive

the

dry

marine

cargo

complaint alleges
federal agency
to

the

9 of the

particular, the

Clean Water

Sears

Club

requests

construction of
Island.

permits issued

Act,

The
by the

due to failure

33 U.S.C.

1344,

33 U.S.C.

401,

4331, et seq.
__ ___
the issues

dispositively

raised in the

resolved and

district court

are

complaint have

not before

entered two

us.

In

separate final

for the agencies -- on the Clean Water Act claims

on January 30,
29, 1991 --

on

Rivers and Harbors Act,

Some of

judgments

terminal

that construction

and NEPA, 42 U.S.C.

been

relief halting

defendants must be suspended

comply with

section

Sierra

1990 and on

from

the Harbor Act claims

which Sierra Club did not appeal.

on March
These

claims

are not

at issue

in this

history that follows, therefore,

appeal.

The procedural

is concerned only with the

issues that Sierra Club seeks to pursue on this appeal.

Sierra Club moved for
August 12, 1988.
motion

on

establish

the
that

The district
ground
it

that

would

Supp.

886 (D. Me. 1988)

court denied Sierra

Sierra

be

injunction was not issued.

a preliminary injunction on

Club

irreparably

had

Club's

failed

harmed

if

to
an

See Sierra Club v. Marsh, 701 F.

___ ___________
_____
("Sierra Club IV-A").
________________

On appeal,

-55

this

court

remanded.

vacated

the

court's

decision

See Sierra Club v. Marsh, 872 F.2d 497

___ ___________
_____

1989) ("Sierra Club IV-B").

________________
(Cyr,

district

J.) reconsidered

and

(1st Cir.

Upon remand, the district court

the issue

of irreparable

harm and

issued a preliminary injunction.

714 F. Supp. 539
district

court

likelihood
in

See Sierra Club v. Marsh,

___ ___________
_____

(D. Me. 1989) ("Sierra Club IV-C").

_________________
concluded

that

Sierra Club

had

The

shown

of success on the merits of its NEPA claims, and

particular on its claim

that the EIS

discussion of the

port project's secondary impacts was inadequate.

See id. at
___ ___

564.
Approximately
preliminary

two

injunction,

opposition by

months

after

the district

Sierra Club,

a defense

entering

court

the

allowed, over

motion for

leave to

make a supplemental filing.

The

agencies

filed

administrative
memoranda.

four

record,
After

and

agencies on

all

reviewing

affidavits, and additional

district court

affidavits

(Cyr, J.)

to

parties

the

explain

filed additional

administrative

record,

memoranda from the parties,

granted summary judgment

Sierra Club's NEPA secondary

v.

Marsh, 744
_____

F.

-66

Supp.

the

for the

impacts claim and

denied Sierra Club's cross-motion for summary judgment.

Sierra Club
____________

the

352

(D. Me.

See
___
1989)

("Sierra Club IV-D").

________________

The court concluded, inter alia, that

__________

the final EIS analysis

of secondary impacts satisfies NEPA.

See id. at 359-60.

___ ___
Sierra Club appealed immediately from the summary
judgment

order.

court's

decision

rather

This
on

court concluded
summary

than final, that it

judgment

that the
was

district

interlocutory

had not amended the preliminary

injunction within the meaning of 28 U.S.C.

1292(a)(1), and

that no appealable order had been entered.

It dismissed the

appeal

for want of jurisdiction.

See Sierra Club v. Marsh,

___ ___________
_____

907 F.2d 210 (1st Cir. 1990) ("Sierra Club IV-E").

______ _________
By Order of January
12,

1992,

the district

judgment for

court

judgment for the agencies

NEPA secondary impact claim.

In Sierra Club IV-C,
________________
that

(Brody,

the agencies, incorporating,

earlier summary

also

23, 1992, as amended February

Sierra Club

had

J.) entered

final

inter alia,
_____ ____

the

on Sierra Club's

This appeal followed.

the district court concluded
demonstrated

a likelihood

of

success

on

violated

the

NEPA

merits
by

of

not

its claim

preparing

that

the

supplemental

agencies
EIS

to

evaluate new information on the acreage of the project.

Sierra Club IV-C, 714 F. Supp. at 565-72.
________________
on

the

parties'

cross-motions for

See
___

In its Memorandum

summary

judgment, the

-77

district

court

again

concluded

that

Sierra

Club

had

demonstrated a likelihood of success on its supplemental EIS

claim,

but the

court

merits

in light

of

consultant

to

requirements

As

the

study

of the

supplemental EIS.
365-68.

deferred making

agencies'
whether

judgment on

proposal to
the

project warrant

increased

result

of

retain

F. Supp.

further consideration

acreage

the preparation

See Sierra Club IV-D, 744

___ _________________

the

by

of a
at
the

agencies, agency announcements were made on July 15 and July

25,

1991,

that

a supplemental

Accordingly, in its
amended
Sierra

February

may not

12, 1992,

the

the

to be

bring

district

EIS claim as
an end

Searsport project as Sierra

of

was

prepared.

Final Judgment of January 23,

Club's supplemental

affirmance

EIS

to

1992, as

court dismissed
moot.

Thus, our

litigation over

the

Club may challenge the adequacy

supplemental EIS.

This matter,

however,

has no

effect on the present appeal.

II.
II.
Legal Requirements Regarding EIS
Legal Requirements Regarding EIS
Secondary Impacts Analysis
Secondary Impacts Analysis
NEPA

requires

federal

agencies

to

prepare

"a

detailed statement . . . on the environmental impact" of any

proposed

federal

quality

of

the

project
human

"significantly
environment."
-88

affecting
42

U.S.C.

the

4332(2)(C)(i).
exhaustive

Not all

detail.

impacts

First,

only

need
those

be discussed
effects that

in
are

"likely" (or "foreseeable" or "reasonably foreseeable") need

be discussed, see Sierra Club I, 769 F.2d at 875, and, as in
___ _____________
other legal contexts, the terms
as

applied to a type of

interpreted
likely

as

meaning

to occur that

take it into
Lines A/S
_________

environmental impact, are properly

that

the

a person

account in

impact

the meaning

applied

tort

to

of "likely"
for

associated with physical harm).

impacts is

not

an

prudence would

reaching a decision.

liability

particular ones

is sufficiently

of ordinary

v. M/V Donau Maru, 764 F.2d

_______________

(explaining

the EIS

"likely" and "foreseeable,"

50 (1st

Barber
______

Cir. 1985)

and "foreseeable"

"financial

losses"

the types

or "strict"

measured by an objective standard.

as
not

Thus, "duty" to discuss

among all

"absolute"

Cf.
___

in

of potential
duty

but

one

That is, a likelihood of

occurrence, which gives rise to the duty, is determined from

the perspective

of the person

position of the

decisionmaker at the

made about what to include

those

effects

inclusion, the

appears to be reasonably

likely

in the

time the decision

in the EIS.

sufficiently
EIS need

of ordinary prudence

is

Second, even

as to

occur

merit

to

to

only "furnish such

information as

necessary under the

circumstances

-99

for evaluation of the project."

Corps of Engineers, 769
__________________

Britt v. United States Army

_____
__________________

F.2d 84, 91 (2d Cir.

1985); accord
______

Concerned Citizens on I-90 v. Secretary of Transp., 641 F.2d

__________________________
____________________
1, 5 (1st Cir. 1981) (stating that
"'EIS can be said to
those

who did

not

the issue is whether the

constitute a statement which enable[d]

have

part

in

its

compilation

to

understand and consider meaningfully the factors involved'")

(quoting

Cummington Preservation Comm.

_____________________________

v. Federal Aviation
________________

Admin., 524 F.2d 241, 244 (1st Cir. 1975)).

______
In
immediately
its

the

interest

of

below on the first

applicability to this case.

clarity,

we

of these two
More on

elaborate

points and on

the second point

appears in Part V, infra.

_____
The

federal Council on

Environmental Quality has

issued regulations that inform federal agencies of what must

be

included in

the EIS.

(1991); Sierra Club I,

_____________

See
___

40 C.F.R.

769 F.2d at 870.

1500,

et seq.
__ ____

These regulations

mandate that the EIS discuss the direct and indirect effects
(secondary
1502.16.

impacts) of a proposed project.

Indirect effects

See 40 C.F.R.
___

(or secondary impacts) are those

effects,
which are caused by the action and are
later in time or farther removed in
distance,
but are
still reasonably
foreseeable.
Indirect
effects may
-1010

include growth
inducing effects and
other effects related to induced changes
in the pattern of land use, population
density or growth rate, and related
effects on air and water and other
natural systems, including ecosystems.
40 C.F.R.

1508.8.
Agencies must consider only those indirect effects

that are

"reasonably foreseeable."

They

need not consider

potential effects that are highly speculative or indefinite.

See
___

Kleppe v. Sierra Club, 427 U.S. 390, 402 (1976); Sierra

______
___________
______

Club I, 769 F.2d at 878.

______

As this court has explained:

Whether a particular set of impacts is

definite enough to take into account, or
too
speculative
to
warrant
consideration,
reflects
several
different factors. With what confidence
can one say that the impacts are likely
to occur?
Can one describe them 'now'
with sufficient
specificity to make
their consideration useful?
If the
decisionmaker does not take them into
account 'now,' will the decisionmaker be
able to take account of them before the
agency is so firmly committed to the
project
that
further
environmental
knowledge, as a practical matter, will
prove irrelevant to the government's
decision?
Sierra Club I,
______________

769

F.2d at

878 (citing

Massachusetts v.
_____________

Watt, 716 F.2d 946, 952-53 (1st Cir. 1983)).

____
III.
III.
The Challenged EIS Analysis of Secondary Impacts
The Challenged EIS Analysis of Secondary Impacts

-1111

The EIS

at issue

in this case

impacts

as

"impacts induced

by

and

[cargo]

terminal and its operation."

defines secondary

attributable to

the

Final EIS, Vol. I, 4-

108 (Appendix ("App.") 117).

The EIS analysis

of secondary impacts devotes

47

pages to a discussion of a proposed industrial park on Sears

Island.

See
___

Sierra Club IV-A,

________________

701 F. Supp.

at 918.

The

discussion assumes that the industry types likely to develop

in the

proposed park are (1) fabricated metal products; (2)

non-electrical machinery and

electronic

equipment; (3) electrical

machinery and equipment;

equipment.

See
___

"light-dry."

id.
___

The

This type

EIS does not

and

and (4) transportation

of industry

is known

as

discuss the development

of

any other type of industry as an indirect effect of the port

project.
In its
preliminary
the

Sierra Club's motion

injunction, the district

agencies'

industries in
reasonable.

Memorandum on

decision
the EIS

to

include

court determined that

the

four

evaluation of secondary

light-dry
impacts was

See Sierra Club IV-C, 714 F. Supp. at 564.

___ ________________

court concluded

also, however, that

for a

The

the information before

the

agencies suggested

that heavy industry,

that it was

as well as food

reasonably foreseeable
processing and forest

-1212

product industries,
as

result

concluded

that

were likely to develop

of the
it

agencies' decision

port
was

not to

project.

unable to

on Sears Island

The district
determine

court

whether

include these industries

the

in the

EIS discussion of secondary impacts was reasonable because

there is nothing in the record, except
ipse dixit, to demonstrate an actual
____ _____
__ ______
agency
decision
to
restrict
the
______
________
secondary impact analysis to these four
types
of
potential
industrial
development, much less the rationale for
such a decision.
Id.
___

The court added that

judicial review
is rendered utterly
infeasible
where
the administrative
______________
record fails even to disclose whether

______
information seemingly
relevant to a
rational secondary impact analysis was
ever considered by the agency or, if so,
how it was considered.
Id.
___

at

565

concluded

(emphasis

added).

that Sierra

success on the merits

secondary impacts

Club had

Accordingly,
exhibited a

the

court

likelihood of

of its claim that the EIS analysis of

was inadequate and entered

a preliminary

injunction.
In the

filings

submitted after

the

preliminary

injunction was issued, the agencies offered four

to supplement

and explain

Supplemental

Affidavit

affidavits

the administrative record.

of

Francis

Mahady

See
___

("Mahady

-1313

Supplemental Affidavit"); Supplemental Affidavit

Richardson

("Richardson

Supplemental

of William
Affidavit");

Supplemental Affidavit of Robert Hunter; Affidavit of Leslie

Stevens.

Sierra Club

district

court, citing

(1973)(per

curiam),

properly be
apparent

moved to strike the affidavits.

and

in,

that

that the

received by
and

administrative record.
at 356 n.7.

Pitts, 411
_____

concluded

were

gaps

Camp v.
____

otherwise

See
___

court
to

the supplemental affidavits

was

an

clarify,

the
Supp.

remedied the deficiencies

actual

agency

they demonstrated that

decision

analysis to light-dry

to

The court concluded

agencies' decision

restrict

See id. at 359 &

___ ___

further that the

was rational

the

industries and they

explained the rationale for that decision.

evidence.

explain

After reviewing the affidavits, the court ruled

secondary impact

n.11.

to

142
could

Sierra Club IV-D, 744 F.

________________

in the administrative record because

there

U.S. 138,

affidavits

the

The

basis for the

and supported

by credible

See id. at 359.

___ ___
In

proceedings

the
and the

present

appeal,

entry of

Final Judgment,

contends (1) that the district

considering

the

agencies'

following

further

Sierra Club

court erred in admitting and

supplemental

affidavits

to

determine whether the EIS discussion of secondary impacts is

-1414

adequate and (2) that the district court erred in concluding

that

the

final

EIS

adequately

considers

the

secondary

impacts of the port project.

IV.
IV.
Standards of Review
Standards of Review

NEPA

is

Judicial

review

governed

by

of an

section

Procedure Act, 5 U.S.C.

701,

10

court

must

hold

of

U.S.

compliance with

the

et seq.
__ ___

Natural Resources Council, 490

__________________________
reviewing

agency's

Administrative

See Marsh v. Oregon

___ _____
______
360, 375

unlawful

(1989).

any

agency

of

discretion,

action,

findings and conclusions that are

"'arbitrary,
otherwise

not

capricious,
in

an

accordance

abuse
with

Conservation Law Foundation, Inc.

____________________________________
Interior,
________
U.S.C.

864

F.2d 954,

957

the
v.

(1st Cir.

law

or
.'"

Secretary of the
__________________
1989)

(quoting 5

706(2)(A)); accord Sierra Club I, 769 F.2d at 870;

______ _____________

Concerned Citizens, 641 F.2d

__________________

at 3; Silva v. Lynn,
_____
____

482 F.2d

1282,

1283 (1st

Cir. 1973).

This

standard of

review is

highly deferential; the court must presume the agency action

to be valid.

See Citizens To Preserve Overton Park, Inc. v.

___ _______________________________________

Volpe, 401 U.S 402, 415 (1971); Conservation Law Foundation,

_____
____________________________
Inc.,
____

864 F.2d at 957-58.

defer to the

The reviewing

court should not

agency, however, "without carefully

the record and satisfying [itself] that

reviewing

the agency has made

-1515

reasoned

available
490

U.S.

decision

based

information.
at

378;

see
___

on

its

evaluation"

of

the

Oregon Natural Resources Council,

_________________________________
also
____

Grazing Fields
Farm
______________________

v.

Goldschmidt, 626 F.2d 1068, 1072 (1st Cir. 1980) ("The court
___________
should only

assure itself

that the

agency has

given good

faith consideration to the environmental consequences of its

actions").

That is,

agency decision,
________________

in

the court
the

must "look to see if the

____________________

context of

the

record,

is too
______

'unreasonable' (given its statutory and factual context) for

______________
___
the law to permit it to stand."
______________________________

Sierra Club I, 769 F.2d at

_____________

871 (emphasis added).

The

district

court,

applying this

review,

concluded that the

the EIS

secondary impacts analysis

standard

agencies' decision

of

to restrict

to light-dry industries

was rational and supportable on the record.

See Sierra Club

___ ___________

IV-D, 744 F. Supp. at 359.

____
In

Sierra Club I, we stated that we will take a

_____________

practical approach
apply

to

to deciding

our review

of a

what standard of

district

court's review

agency decision.
We should be more willing, or be less
willing, to differ with a district court
about
the
'reasonableness'
or
'arbitrariness' of any agency decision,
depending on the particular features of
the particular case that seem to make a
-1616

review to
of an

more independent, or less independent,

appellate
court
scrutiny
of
the
administrative record appropriate.
Sierra Club I,
_____________

769 F.2d at 871-72.

We should

show proper

hesitation to overturn a district court's judgment as to the

reasonableness of an agency decision where, for example, the
"court's

judgment turns

determined,
court, or

or

upon

even upon

which knowledgeable

on

matters of

evidence

fact

presented

by

lengthy district court

counsel explain the

making process in detail."

Id. at 872.
___

that it
__

has

witnesses in
proceedings in

agency's decisionWhere, however, we

are

to apply the same legal standard to the agency decision

as

did the district court and where the district court made

no findings of fact and heard no witnesses we will "exercise

a

considerable

administrative

degree

of

record" to

court's decision is correct.

The

agencies

independence
determine

reviewing the

whether the

district

Id.
___

argue,

circumstances of this case

in

unsurprisingly,

at this point in the

that

the

litigation

require us to

apply the "hesitate-to-overturn" standard

our review of

the district court's decision.

in

Sierra Club,

also unsurprisingly, contends that the circumstances of this

case

mandate that

we

apply

independence" standard.

the

"considerable-degree-of-

We need not

resolve this dispute.

-1717

We

conclude

that even

if

we apply

the

less deferential

"considerable-degree-of-independence" standard, the district

court's decision must be affirmed.
V.
V.
The Affidavits
The Affidavits
Sierra Club argues that
in

admitting

affidavits to

and

considering

the district court

the

erred

agencies' supplemental

-1818

determine the

adequacy of

the EIS evaluation

impacts.
A.
A.

of secondary

As

stated in

agency to prepare
alia,
____

Part

II, supra,
_____

a "detailed statement" discussing,

the indirect effects of

C.F.R.

NEPA requires

1502.16.

a proposed project.

This requirement serves

"The detailed statement aids

an

inter
_____
See 40
___

many purposes.

a reviewing court to ascertain

whether the agency has given [ ] good faith consideration to

environmental

concerns

information

to the

government,

and prevents

criticism from
scrutiny."

public

being

.
and

provides

environmental

interested departments

stubborn problems

shielded from

Grazing Fields Farm,

___________________

or significant

internal and

626 F.2d at

of

external

1072 (citing

Silva, 482 F.2d at 1284-85).

_____
Because public
NEPA,
NEPA

disclosure is a central purpose of

an EIS that does not include

may

not be

included

in

cured by

the

memoranda

administrative

incorporated into the EIS itself.

Watt,
____

or reports
record

but

that are
are

not

See id. at 1073; see also

___ ___
___ ____

716 F.2d at 951 ("unless a document has been publicly

circulated
satisfy

all that is required by

and available

NEPA's

EIS

for public

requirements");

-1919

comment, it

does not

National
Resources
____________________

Defense Council, Inc.

_____________________
Cir. 1972)

v. Morton,
______

(holding

that

material contemplated
enlightenment
Mountain Club
_____________

of

the

458 F.2d
EIS

"must

by Congress in form
the

others

v. Brinegar,
________

827, 836
set

(D.C.

forth

the

suitable for the

concerned");

Appalachian
___________

Supp. 105,

122 (D.N.H.

394 F.

1975) (holding that a deficient EIS cannot be resurrected by

supplemental information not processed in the same manner as
a draft EIS because it denies the public "the opportunity to
test,

assess, and

judgment as to the

evaluate the

data and make

an informed

validity of the conclusions to

be drawn

therefrom").
Sierra Club argues that "[h]aving concluded on May
30, 1989, Sierra Club IV-C, 714
_________________
EIS

did

analysis

not properly
of

the

EIS

industries, the District

explain

F. Supp. at 565,
why

considered

the secondary
only

four

that the
impacts
light-dry

Court erred by allowing the use of

affidavits to provide the missing explanation."

Appellants'

Brief

at p.

29.

Such

an

violates NEPA by allowing

approach, the

argument

goes,

an otherwise defective EIS

to be

cured by documentation not circulated to the public.

Sierra

Club's challenge fails for two reasons.

First,
the

the district

court did not

conclude that

EIS was inadequate because it (the EIS) did not explain

-2020

how the agencies determined

impacts
could

analysis.
find

the scope of the

Instead,

nothing

in

the

the court

EIS secondary

concluded that

administrative record
______________________

it
that

evidenced that the agencies had ever made a decision on what

secondary
evidence

impacts to

include

in the

EIS,

of the rationale for that decision.

let alone

any

See Part III,

___

supra; Sierra Club IV-C, 714 F. Supp. at 565.

_____ ________________
Second,

and

more

important,

Sierra

Club's

contention

suffers

premise of its

from

position is

false premise.

The

implied

that NEPA requires the EIS to

_____________________

explain how the agencies determined the scope of the EIS -_________________________________________________________
that,

for

discussion

example, NEPA
of

why

indirect effects

requires

the

of a

agency

the

EIS to

determined

include

that

certain

proposed project are not reasonably

___________________

foreseeable and therefore are not discussed in the EIS.

_______________________________________________________
is

true

that

NEPA

requires

to

of

determine

be

secondary industrial

proposed

project.

In

the statute

regulations, however, there is

to explain how

an agency

including, for example,

the

EIS

effects
the

what

an

environmental
to

analyze

and

effects
its

of

concomitant

nothing that requires an EIS

why it excluded

-2121

the

agency decisionmakers

determined the scope

alleged impact that the agencies

It

of an

EIS,

from the EIS

each

determined did not in fact

qualify as a secondary

impact.

See Piedmont Heights Civic

___ _______________________

Club, Inc. v. Moreland, 637

___________
________

F.2d 430, 440

(holding that it (the court)

could not find "any authority,

requiring

an EIS

to

explicitly discuss

(5th Cir. 1981)

the factors

that

determine the scope of the EIS").

Our

decision in

this distinction.
evaluation

Grazing Fields Farm illustrates

____________________

NEPA

requires an

of alternatives

EIS

to

to the proposed

include

an

agency action.

See 42 U.S.C.
___
4332(2)(C)(iii).
challenged the

The plaintiff

adequacy of

project on the ground

an EIS prepared

reviewing

court concluded
thoroughly

the

for a

that it did not adequately

suggested alternative to the

After

in Grazing Fields Farm

____________________

record,

federal agency had

evaluated the

discuss a

proposed route of the highway.

administrative

that the

highway

alternative

in

the district
carefully and

compliance

with

NEPA, even though that evaluation and the information it was

based upon was not included in the EIS.
Farm, 626 F.2d at
____
an
for

1071.

This court reversed,

administrative record cannot

a

proposed

detailed
project.

See Grazing Fields

___ ______________

statement

holding that

satisfy NEPA's requirement

evaluating

See id. at 1072.

alternatives

to

The opinion cautioned,

___ ___
however,

that

"our

holding

does

not

mean

that

the

-2222

administrative record should play

of

the adequacy

[EIS]."

of the

no part in the evaluation

discussion

of alternatives

Id. at 1074.
___
Study of the administrative record by
the court helps to assess the degree of
discussion any particular alternative
deserves, based on the alternative's
feasibility
and
the stage
in the
decision-making process it is brought to
the attention of the agency. . . . This
use of the record to inform a court's
judgment about the adequacy of an EIS
must be distinguished from our holding
today
that agency
consideration of
alternatives evidenced by the record
cannot
replace
the
NEPA
mandated
discussion of alternatives in the [EIS]
itself.
In other words, the district
court can use the administrative record
to set
the standard for
how much
discussion within the EIS a particular
alternative merits, but cannot deem the
unincorporated record to satisfy that

in an

standard.
Id. (footnotes omitted); see also Valley Citizens For a Safe
___
___ ____ __________________________
Env't
_____

v.

Aldridge, 886
________

F.2d

458,

(stating that in a NEPA case "[t]he

. . .

is normally

460

Cir.

1989)

relevant legal question

whether the Statement

light of the information

(1st

is 'adequate'

and comments before the

in

agency at

the time it produced the Statement").

Another way

of explaining when

it is appropriate

for a court to go beyond examining the EIS itself and review

the administrative

record in a NEPA

case is to say

that a

-2323

reviewing court may not rely on

an administrative record
may, and

indeed must,

information and analysis in

to cure an inadequate EIS,

review the administrative

record to

determine whether the EIS is inadequate in the first

See

Sierra

Club IV-D,

744

F.

Supp.

at 359

but it

n.11.

place.
In

___

_________________

Conservation Law Foundation, Inc.

__________________________________
(1st Cir. 1979),
EIS

did

proposed

not

v. Andrus, 617
______

F.2d 296

for example, the plaintiff claimed that an

adequately

project.

discuss

After

an

alternative

to

the

reviewing

information

in

the

administrative record that revealed that the alternative was

largely hypothetical,
analysis

proposed

concluded that

of the alternative in

id. at 299.
___
record

we

"Thus, our

informed

itself."

the EIS was

to

as

to

626

See
___

administrative

how extensively

be discussed

Grazing Fields Farm,

_____________________

"pedestrian"
adequate.

examination of the

our judgment

alternative had

the

within the

F.2d

at

1074

the
EIS
n.4

(discussing Andrus).
______
In this case the district court similarly examined
the

administrative

affidavits,
analysis

record,

including

to determine whether

was adequate.

court concluded

the

the EIS

After reviewing

that it was reasonable for

supplementary

secondary impact
the record,

the

the agencies to

conclude that the four light-dry industries evaluated in the

-2424

EIS are the

only industries that

develop on Sears
If,

in

Island as

contrast, the

are reasonably likely

a result of

district

court

the port

to

project.

had concluded,

for

example, that it was unreasonable for the agencies to decide

that

heavy

industry

secondary impact
EIS analysis
EIS

did

was

not

reasonably

of the port project,

of secondary impacts

not discuss

all

foreseeable

therefore making the

inadequate (because

reasonably foreseeable

effects), that inadequacy could

the

indirect

not be cured by information

and analysis that

is in the

administrative record but

not

incorporated into

the EIS.

See Grazing Fields Farm,

___ ____________________

626

F.2d at 1072.

That is, the court could not look to evidence

in the administrative record or in

that suggested that the agencies
faith

decision

to

go

supplementary affidavits
had made an informed, good

forward

informing themselves of the

with

the

project

after

environmental effects of

heavy

industry because

that approach would defeat

informing

public

the

of

the

consequences of the proposed project.

B.
B.

likely

NEPA's goal of
environmental

Having determined that a reviewing court may

to the

administrative record to decide

decision

on

the scope

of an

EIS

turn

whether an agency's

is reasonable,

we must

-2525

address whether

the

district

court

erred

in

permitting

supplementation of the administrative record

by considering

the

entry

agencies'

affidavits

submitted

after

of

the

preliminary injunction.
The

focal

point

agency's decision is the

for

Camp, 411 U.S. at

____

Env't, 886 F.2d at 460.

_____
often

Lorion,
______

of

an

See, e.g.,
___ ____

470 U.S.

729, 743

142; Valley Citizens For a Safe

___________________________
"The fact that review sometimes or

focuses on the initial

must, or

review

administrative record.

Florida Power & Light Co. v.

____________________________
(1985);

a court's

always, will do so."

record does not

Valley Citizens

mean that it
For a Safe

___________________________
Env't, 886 F.2d at 460.
_____
Where there was a failure to explain
administrative action so as to frustrate
effective judicial review, . . . the
remedy is to obtain from the agency,
either through affidavits or testimony,
such
additional explanation
of the
reasons for the agency decision as may
prove necessary.
Camp, 411
____
420

U.S. at 143; see

___

(stating

that

also Overton Park, 401

____ ____________

where

there are

no

examining the decisionmakers themselves

there can be effective
Inc.
____

v.

(holding

formal

U.S. at
findings,

may be the only way

judicial review); Manhattan Tankers,

__________________

Dole,
____

787 F.2d

667,

672

n.6

(D.C. Cir.

1986)

that

the court

"may

properly

uphold the

Coast

Guard's decision on the basis of

affidavits or testimony by

-2626

the administrator

who

made

the

decision

concerning

his

reasoning at the time of the decision").

The administrative record may be "supplemented, if
necessary, by affidavits, depositions,

or other proof of an

explanatory nature."

Arkla Exploration Co. v.

_____________________

Gas Corp.,
_________

347,

734

F.2d

357 (8th

Independent Meat Packers Ass'n v.

_______________________________

Cir.

Texas Oil &

___________

1984)

(quoting

Bertz, 526 F.2d 228, 239

_____

(8th Cir. 1975) (citations omitted)), cert. denied, 469 U.S.

_____ ______
1158

(1985).

explanatory
occurred.

The
of the

new

material,

however,

decisionmakers' action

should

at the

be

time it

No new rationalizations for the agency's decision

should be included, see, e.g.,

___ ____

Sierra Club v. United States

___________
_____________

Army Corps of Engineers, 771 F.2d 409, 413 (8th Cir. 1985);
________________________
Environmental Defense Fund, Inc.
_________________________________
285

v. Costle, 657
______

(D.C. Cir. 1981); Asarco, Inc.

____________

Protection Agency, 616

_________________

explained

sustainable

on

by
the

v. United States Envtl.

____________________

F.2d 1153, 1159 (9th Cir. 1980), and

if included should be disregarded.

once

F.2d 275,

the

proper

record

approach has been to vacate

to the agency for further

"If the agency

agency

itself,

the

official,
proper

action,
is

judicial

the action and to remand .

consideration."

not

. .

Costle, 657 F.2d

______

at 285; accord Camp, 411 U.S. at 143; Asarco, Inc., 616 F.2d
______ ____
____________

at 1159.
-2727

The
administrative

district court
record

did

concluded initially
not contain

agencies considered the prospect

light-dry

industries

court explained that

evidence

that the
that the

that industries other than

might locate on
[a]lthough
i t
i s
conceivabl
e that a
careful
considerat
ion of all
available
informatio
n
could
h a v e
enabled
t
h
e
[agencies]
rationally
t
o
conclude
that
the
Mallar
Report
presented

Sears Island.

The

a logical
basis for
determinin
g
which
industries
w e r e
"reasonabl
y
foreseeabl
e"
and
could
be
attributab
le to the
S e a r s
Island
p o r t
project,
-2828

the court
cannot
determine
from
the
record
that
any
such . . .
decision
w
a
s
"founded
o n
a
reasoned
evaluation
of
the

relevant
informatio
n."
Sierra Club IV-C,
________________
After

reviewing

714 F. Supp.
the

decided that its

at 565 (citation

supplemental

affidavits,

initial conclusion about the

omitted).
the

court

completeness

or incompleteness of the administrative record was no longer

warranted.

See Sierra Club IV-D, 744 F. Supp. at 359.

___ ________________
One reason the court could not initially determine

whether

the

agencies

information before
reflected that

had

properly

them was that the

a special report on

Special Report") was to be prepared,

was not included in the record
record to
reviewed
563-64.

considered

all

the

administrative record
secondary impacts ("ERA
yet the special report

and there was nothing in the

indicate that the proper

decisionmakers had ever

that report. See Sierra Club IV-C, 714 F. Supp. at

___ ________________
The

court

later concluded,
-2929

however,

that

the

supplemental

affidavits

satisfactorily

explained why

the

administrative record did not include the ERA Special Report

--

no separate

report was

report

was ever

prepared.

Instead,

prepared in "camera ready" form

into

Affidavit at

6; Richardson Supplemental Affidavit at

actual

EIS.

affidavits

agency decision

See
___

to allow direct

incorporation

The

the

Mahady

demonstrate
on the

the

that

Supplemental

there

scope of the

10.

was

an

EIS secondary

impact analysis.
Francis

Mahady

Associates,
written

(Vice-President

the

company

analysis

impacts of the

of

Economics

responsible

of the

reasonably

for

Research

preparing

the

foreseeable secondary

port project) attests that

he explained his

rationale for restricting the analysis to the four light-dry

industries, as well as his other conclusions as to secondary
impacts, to
Supplemental
Division
Federal

the appropriate agency decisionmakers.

Affidavit at

14.

William

Mahady

Richardson (the

Administrator of the Department of Transportation,

Highway Administration, and

the person responsible

for the administration of the Federal-aid Highway Program in

Maine,

including compliance

Richardson Supplemental

with all applicable

Affidavit at
-30-

1)

laws, see
___

explains that he

30

made a deliberate decision

to restrict the secondary impact

analysis to light-dry industry:

Based upon my previous participation in
meetings on this issue, upon my review
of the Municipal Response Plan, upon
Mahady's February 12, 1986 presentation
and upon the ensuing discussion among
attendees at that February 12 meeting, I
thought the choice to be reasonable and
sensible.
The light, dry industries
identified and discussed in the Final
EIS (Final EIS
at 4-109 to 4-111)
appeared to me to be the most probable
types of users in light of the various
physical and environmental limitations
which have to be taken into account in
developing Sears Island.
Richardson Supplemental Affidavit at

6.

The affidavits also provide an explanation for the

agencies' decision to restrict the secondary impact analysis
to

light-dry

market

industries.

analysis"

method used

Mahady
to

describes
determine

the "target
the types

of

industries selected for analysis in the EIS and explains how

that method selected the four light-dry industries as likely

tenants

and

foreseeable
Affidavit
agencies

eliminated
tenant

at

11,

no longer

heavy

of Sears
12.

industry
Island.

Mahady

consider

reasonably

Mahady Supplemental

also explains

the development

forest product manufacturing as

port project, id. at
___

as

why

the

of food

and

a likely consequence of the

13, and he explains

how information

-3131

on the limited sewer and water

led the agencies

capabilities of Sears Island

to conclude that heavy industry

would not

develop on Sears Island as a result of the port project, id.

___
at

10.
Based

on

these

affidavits,

questions about

the

district court

concluded that

its

whether the

agencies'

decisionmakers

had considered all available information and

had made an actual decision to restrict the EIS to light-dry

industry
Supp.

at

had been answered.

359.

The

See Sierra Club IV-D, 744 F.

___ _________________

court

further

concluded

that

the

agencies' explanation for their decision on the scope of the

EIS

discussion

of

secondary

impacts was

reasonable

and

supported by credible evidence in the administrative record.

See id.
___ ___
We are satisfied
agencies'
Pitts.
_____

decision in

that the affidavits

the manner

explain the

contemplated by

Camp v.
____

The affidavits do not contain any "facts" about the

proposed project that are

administrative

record.

explain

based

why,

administrative record
that the four light-dry

not also included in the

Rather,
upon

the

EIS and

affidavits

the

information

and the EIS,

the agencies

simply
in

the

concluded

industries were the only reasonably

-3232

foreseeable

secondary

industrial effects

of

the proposed

port project.
Sierra

Club argues

apply to a court's

that Camp
____

v. Pitts
_____

review of an agency decision

does not
under NEPA

because to allow explanatory affidavits would violate NEPA's

goal of public disclosure.
however, NEPA does

As stated in Part

not require

agency determined the scope

violated when a court

effect of

of the EIS.

discuss how
Thus,

the

NEPA is not

relies upon affidavits to explain

agency's rationale for its

indirect

an EIS to

V(A), supra,
_____

an

decision that a certain possible

a proposed

project

is not

within the

scope of the EIS because it is not "reasonably foreseeable."

Moreover,

Sierra

Club

assertion that

a court

about what to

include in

different

from

the

has

cited no

should review an

authority

courts

its

agency's decision

a NEPA-mandated EIS

way

for

typically

in a

manner

review

agency

decisions.
Sierra
inadmissible

Club's assertion
because

they

that the

constitute

"rationalizations" is similarly without

Park,
____

the

Supreme

affidavits
considered by

Court

containing

specifically

post-hoc

courts reviewing

affidavits are

merit.

post-hoc
In Overton
_______

anticipated

explanations

the propriety of

would

that
be

an agency

-3333

decision.
the

The solution in such situations is not to ignore

affidavits

altogether,

"critically."

but

rather

to

Overton Park, 401 U.S. at 420.

____________

view

them

The district

court noted this limitation.

Sierra Club IV-D, 744 F. Supp.

________________

at

the agencies' explanations for

356

their

n.7.

In this case,

decisions

were

supported

by

evidence

in

the

administrative record.
Sierra

Club

failed to

proffer

in the

district

court any evidence that disputed the agencies' explanations.

For

example,

Sierra

Club challenged

Mahady's assertion that heavy

Sears'
sewer

Island because
capabilities.

of

credibility

of

industry could not develop on

the Island's

Sierra

the

Club

limited water

claimed

that a

and

report

prepared for the agencies (the Mallar Report) indicates that

one

million gallons of water

per day could

be provided to

Sears

Island.

The district

court found, however, that the

Mallar Report states that "major facility improvements would

be

required

gallons

at considerable

cost"

to

provide a

million

of water a day, and that Sierra Club had offered no

evidence to rebut Mahady's conclusion that the large capital

expenditures required to make such improvements would render
such improvements unlikely.
at 358

n.10.

In these

Sierra Club IV-D, 744 F.

________________

circumstances, the

Supp.

district court

-3434

properly

accepted

the

post-hoc

explanations

of

the

decisionmakers' action.
VI.
VI.
Application of the Legal
Application of the Legal
Secondary Impact Analysis
Secondary Impact Analysis

Requirements to the
Requirements to the
in the Challenged EIS
in the Challenged EIS

Sierra Club challenges the agencies'

restrict the EIS analysis

decision to

of secondary impacts to light-dry

industries on the

ground that "it

the law to permit it to stand."

871.

In

particular, Sierra

is too unreasonable

Sierra Club I,
_____________

Club asserts (1)

for

769 F.2d at
that it

was

unreasonable to include the four light-dry industries in the

EIS

discussion

development of

of secondary

impacts

these industries

at

on Sears

all because
Island is

reasonably foreseeable indirect effect of the

(2) that it
as

was unreasonable not to

a reasonably

foreseeable

the
not a

port project;

include heavy industry

indirect effect

of the

port

project; and (3) that it was unreasonable not to include the

development
impact.

of

water-dependent

industry

as

secondary

We consider each of these arguments separately.

A.
A.
Sierra Club

claims that

there is nothing

in the

EIS or administrative record that supports a conclusion that

the port

project will "induce" the development

light-dry industries

on Sears
-3535

Island.

of the four

In support

of its

argument, Sierra Club points

that

the four

out that the final

light-dry industries

analyzed

impacts do not require access to water.

II, F-5

(App. 220).

The

EIS states
as secondary

See Final EIS, Vol.

___

EIS states also that

"due to the

high availability of fully

serviced industrial park land in

the

industries that

Greater Bangor

access to water are

area"

likely to locate in the

area rather than the

204).

Sierra

before

do not

Searsport area.

Club asserts

the agencies lists a

Greater Bangor

See id.
___ ___

also that none

require

at F-2 (App.

of the

marine cargo port

reports

as a siting

factor for any of the four light-dry industries.

The agencies concluded that because

of the highly

competitive nature of industrial park development

"it

was

reasonably

ultimately

located in

which both were

certain

that

the

the industrial

in Maine,

industries
park would

which
be those

acceptable to the local population and were

the targets of intensive marketing efforts and inducements."

Mahady

Supplemental Affidavit

determining likely tenants of

"target

market analysis."

at

11.

This method

the industrial park is called

A 1980 Land Use Plan prepared by

Bangor Investment Corporation, owner of Sears Island

Use Plan"),

includes a marketing study

four light-dry industries as

of

("Land

that identifies the

those "that could best utilize

-3636

the

opportunities

Island,

offered

by

the

port

facility,

Sears

and the surrounding region, and, in turn, offer the

most benefit to the existing region."

(App. 548).

In addition,

Land Use Plan at

a 1983 report

prepared for

24
the

Town of Searsport by Mallar Development Services entitled "A

Municipal
Sears

Response Plan for

Island"

("Mallar

light-dry industries as
Sears Island.

the Industrial

Report"),

targets

good candidates for

Development of
the

same four

development on

Thus, the agencies concluded that because the

four light-dry industries are those that local officials and

the

Sears Island property

owners are trying

the industrial park, these industries

to develop
at

on Sears Island.

are reasonably likely

Mahady Supplemental Affidavit

11.
Moreover, although the

do

to attract to

not require access to

four light-dry

industries

water, the information before the

agencies supports
would

a conclusion

that these

four industries

benefit from close proximity to the port.

The Mallar

report observes that these industries would benefit from the

transport
see
___

cost savings associated

with a centralized port,

Final EIS, Vol. II, 4-110 (App. 119), because they have

significant

import/export needs

or potential,

see, e.g.,
___ ____

-3737

ERA Special Report at IV-5 to IV-6, IV-8 (App. 456-57, 459).

We

conclude

that

it

was

not

arbitrary

and

capricious for the agencies to include in the EIS discussion

of secondary impacts the four

light-dry industries targeted

in the Mallar Report and the Land Use Plan.

is consistent with our

This conclusion

statement in Sierra Club I

_____________

that the

Mallar

Report and the Land Use Plan --the very reports that

identify the four light-dry

industries as those most likely

to

-- "are detailed

develop on Sears Island

EIS to

describe the

type of development
____

enough for an

likely to

occur,

even if it is pointless to analyze precise details."

Sierra
______

Club I, 769 F.2d at 879.

______
The conclusion in the EIS that "industries that do
not require access to water" are likely to locate in Greater
Bangor

does not make the

four light-dry
impacts

agencies' decision to include the

industries in the EIS

arbitrary

and

analysis of secondary

capricious.

First,

not

information in the

administrative record

agency decision.

See Environmental Coalition of Broward

___ ____________________________________

County, Inc. v. Myers, 831

_____________
_____
(citing

F.2d 984, 986

Bowman Transp., Inc.

______________________

System, Inc.,
____________

419 U.S. 281,

v.

must support

all

(11th Cir. 1987)

Arkansas-Best Freight
______________________

285-86 (1974)).

-3838

the

Second, when

the conclusion is

read in

its proper context

it does

not

imply that industries not dependent on water are unlikely to

________
develop

on

Sears

Island.

The

conclusion

compares

the

attractiveness of Mack Point -- an alternative site to Sears

Island -- to
that

the Greater

The EIS

concludes

Mack Point is not a viable alternative to Sears Island

in part because

Mack Point does

contiguous to the port.

water

Bangor area.

not offer sufficient

land

Thus, industries not dependent

on

would be more likely to develop in the Greater Bangor

area than in scattered parcels in Searsport near Mack Point.

See Final EIS, Vol. II,
___
that same

section of

F-1 to F-2 (App. 203-04).

the EIS

Island offers sufficient

observes that

Indeed,

"[o]nly Sears

developable industrial land

is contiguous to a prospective port facility."

which

Id.
___

B.
B.
Sierra

Club argues

next

inadequate because it repeatedly

future

site of

"heavy

that the

final EIS

is

refers to Searsport as the

industry,"1 yet

the EIS

secondary

____________________
1 A report entitled "Where Should Heavy Industry
in Central Maine" defines heavy industry as

Be Located

a
development
characteristically
employing equipment such as, but no
(sic) limited to, smoke stacks, tanks,
distillation
or
reaction
columns,
chemical processing equipment, scrubbing
towers, pickling equipment, and waste
-3939

impact

analysis

likely

to develop on Sears Island.

places the
Maine

assumes that

EIS refers

Advisory

only

to a 1978

Committee

light-dry industry

For example, in several

report from the

on

Coastal

State of

Development

Conservation ("Advisory Report") that recommends

industry be clustered in either the

and

that heavy

Portland-South Portland

area or the Searsport-Stockton Springs-Penobscot area.

e.g., Final EIS, Vol
____

is

I, 2-3 (App. 91).

See,
___

Moreover, a letter

written by Leslie Stevens, Director of the Maine Development

Office,
Park

is

states that
intended

the proposed
for

heavy

proximity to a cargo terminal.

Sears Island

industry

that

Industrial
needs

close

See Final EIS, Vol. II, S-2

___
(App. 226).

____________________
treatment
lagoons;
which
industry,
although conceivably operable without
polluting
or
otherwise
causing
a
significant adverse environmental impact
on the coastal are[a] (by, but not
limited to, the likelihood of generation
of
glare,
heat, noise,
vibration,
radiation, electromagnetic interference
and obnoxious odors) has the potential
to
pollute
or
otherwise cause
a
significant
adverse
environmental
impact.
Sierra Club IV-C, 714 F. Supp. at 562 n.27 (quoting Final
_________________
EIS at 12-8, as quoted in Plaintiffs' Memorandum in Support
of Objections to Defendants' Motion for Summary Judgment at
p. 18).
-4040

The
their

agencies provide two related explanations for

decision not

to

include the

development of

"heavy

industry" as a reasonably foreseeable indirect effect of the

port project.

Mahady

explains

that a

selection of industries as "reasonably

key factor in

foreseeable" tenants

of the industrial park was that "industries locating

industrial parks
substantial

had

water

to

be those

and

sewer

limited.

Mahady affidavit at

Mallar Report).

do

in the

not
in

require
order

and water facilities

to
are

10 (citing Land Use Plan and

Thus, for Sears Island to accommodate heavy

industry "major facility

considerable cost." Id.
___
part of

which

capabilities

function," because existing sewer

the

improvements would be required

at

Because these improvements were not

the proposed port

project, and because

the state,

county, town, and property owners were unlikely to make such

improvements
concluded

in

view

that heavy

of

their

industry

expense,

was unlikely

the

to locate

Sears Island as a consequence of the port project.

The use

of the "target market

the agencies to conclude

agencies
on

See id.
___ __

analysis" also led

that "heavy industry" was unlikely

to develop on Sears Island as an indirect effect of the port

project.

As

officials and

stated

in

Part

VI(A),

supra,
_____

the

local

property owners have directed their marketing

-4141

efforts toward light-dry

Moreover,

because

industry, the

of

industries -- not
the environmental

effects

development of such industry

would likely meet heavy public opposition.

at

heavy industry.
of heavy

on Sears Island
Mahady Affidavit

9, 12.
In

sum, the agencies

decided that heavy industry

was not likely to develop on Sears Island as a result of the

port

project, despite the

Advisory Report's recommendation

that heavy industry be clustered in the same area as a cargo

port

facility,

because

the

available

water

and

sewer

facilities on Sears Island are insufficient to support heavy

industry, and

because the project

owners and the

town are

not directing their marketing efforts at heavy industry.

We

are satisfied that this decision is not unreasonable.

In
agencies'
locate

the alternative, Sierra Club contends that the

conclusion

that

at Sears Island

final EIS

heavy industry

is a "substantial

requiring the preparation of

NEPA regulations mandate

is

unlikely to

revision" to the

a supplemental EIS.

-4242

a supplemental EIS if one of two conditions is met:

(i) The agency makes substantial changes
in the proposed action that are relevant
to environmental concerns; or
(ii)
There
are
significant
new
circumstances or information relevant to
environmental concerns and bearing on
the proposed action or its impacts.
40

C.F.R.

1502.9(c);

see also
___ ____

Watt,
____

716 F.2d

at 948.

Sierra Club argues that "[i]f the long-established policy of

using public funds to build a cargo terminal at Sears Island
in order to concentrate heavy
been

abandoned,

fundamentally

then

the

changed and

industry at that location has

purpose

the public

that fact through a supplemental EIS."

of

the

must be

project

has

informed of

Appellants' Brief at

p. 20.
We
Sierra

Club's

can find

nothing in

assertion that

the record

"the

purpose

to support

of the

cargo

terminal is to concentrate heavy industry at that location."

The 1978 Advisory Report recommends that heavy industry and
port facilities

be clustered together

in two areas

state

in order

"to ensure

than 95%

3,000

mile coastline would be

free of heavy industries and

major

port activities." Final

EIS, Vol. I,

that more

of the

of Maine's

2-3 (App. 91).

It does not follow from this recommendation that the purpose

of the port project is to induce heavy industry to locate on
-4343

Sears

Island.

conclusion

Nor

that heavy

does

it follow

industry is

from

the

unlikely to

agencies'
develop on

Sears Island as a consequence of the port project that Maine

has abandoned its clustering policy.
to issue a supplementary EIS.

Thus, there is no need

C.
C.
Sierra Club claims that the development of
dependent
effect
II,

industry

is

reasonably

of the port project.

F-2

(App.

industries
facility

203)

likely

to locate

proposed for

foreseeable indirect

See, e.g.,
___ ____

("there

Final EIS, Volume

are really
at

or

water-

two

near

Searsport: [the

classes

the cargo

first of

of
port

which is]

those industries engaged in intensive handling of waterborne

commerce
facility,

which

require

since greater

transportation

costs

direct

proximity

distance from

which

would

to

the

port

the port

would add

their

operations

make

infeasible . . . .").
Although Sierra Club does
of

water-dependent

have discussed, it
the EIS

industries it

that analyzes the

See
___

believes the

does identify a 1987 study

have developed at port

proposal.

not identify what types

EIS should
excerpted in

water-dependent industries

that

projects comparable to the Searsport

Final EIS, Vol I, 4-149 to

-4444

4-151 (App. 158-

60).

The study found that auto processing, stevedoring, and

chemical
and

industries developed at

that

industries

stevedoring,
Florida.

and ship

See
___

EIS should

id.
___

have

foreseeable

Colonels Island, Georgia,

involving
repair

bananas,

developed

Sierra Club appears

discussed these

secondary

impacts,

phosphates,

at Port

to contend that the

industries as
or

Manatee,

at

the

reasonably

very

least,

discussed why they are not reasonably foreseeable.

The
industries
rather

agencies

that

than

respond

rely upon

indirect

impacts.

--

As

the

water commerce
effect

therefore there is no reason

secondary

that

of

the

EIS

discusses

as a

direct --

port

project;

to discuss these industries as

support

for

their response,

the

agencies cite to Sierra Club IV-D, 744 F. Supp. 357 n.9, and
________________
to page 94 of the appendix on appeal.
In Sierra Club IV-D,
________________

the district court

observed

that although

the agencies had originally

anticipated that

forest product

and food industries would

locate facilities

on

Sears Island,

discuss these
that the
food

the secondary

industries.

final EIS

and forest

The

does not

products

impacts analysis

does not

court concluded,

however,

discuss the

because

manufacturing of

"primary

manufacturing

production facilities . . . tend to be located in as close a

-4545

proximity as possible to their raw

IV-D,
____

materials."

Sierra Club
___________

744 F. Supp. at 357 n.9 (quoting Mahady Supplementary

Affidavit

at

industries
complex.

13).

The agencies

would utilize
The final

storage

determined that
facilities

EIS considers

these

in the

impacts related

port
to the

storage of forest and food products in its discussion of the

direct impacts of the
______
Vol. 1,
the

2-12,

4.4.2, 4.8.2).

appendix is a diagram

facilities at the port.

EIS

project.

diagram

and note

completely responsive

See id. (citing

___ ___

Final EIS,

The document at page 94 of

of the placement

of the storage

The agencies' identification of the

nine

of

Sierra-Club IV-D, is
_________________

to Sierra Club's argument.

not

The fact

that the agencies considered the effects of forest and

products industries

-- two industries that

commerce, see Sierra Club IV-C, 714 F.

___ ________________
not

explain why

the EIS

does not

other water-dependent

industries,

identified

1987

in

the

study

Nonetheless, we conclude that

food

rely upon water

Supp. at 565 -- does

include an
such as
of

the

analysis of
industries

comparable

ports.

the EIS analysis of secondary

impacts is adequate.
First, Sierra Club has not called our attention to
any record that it made this argument in the district court.
Neither the district court's decision allowing Sierra Club's
-4646

motion for
714 F. Supp.

a preliminary injunction, see

___
at

cross-motions for

559-65,

nor the court's

summary judgment,

Sierra Club IV-C,

________________
decision on

the

see Sierra Club IV-D,

___ _________________

744 F.

Supp. at 354-60, discusses any

contention by Sierra

Club that the EIS evaluation of the port project's secondary

impacts is

inadequate because

dependent

industries

manufacturing).
none appears

it does not

(other

Absent

than

evaluate water-

food

and

an exceptional circumstance

here -- an

appellate court will

-- and

not consider

arguments that were not made to the trial court.

Borden
______

forest

See, e.g.,
___ ____

v. Secretary of Health & Human Services, 836 F.2d 4,

____________________________________

(1st Cir. 1987); Johnston v. Holiday Inns, Inc., 595 F.2d

________
__________________

890, 894 (1st Cir. 1979).

Second,

NEPA requires

an

EIS to

evaluate

only

those secondary impacts that are reasonably foreseeable.

We

conclude that

to

analyze

other

it was

permissible for

water-dependent

the agencies not

industries,

such

as

auto

processing, petroleum, and cement, because the likelihood of

these

industries

developing

on

Sears

speculative to be reasonably foreseeable.

Island

is

too

The only evidence

Sierra Club identifies (other than general statements to the

effect

that

water-dependent

develop) is the study of

industries

are

likely

to

comparable ports around the United

-4747

States.

The fact

indirect effect of
does

not,

without

that

auto processing

developed

a port project in Georgia,

more,

make

the

as an

for example,

development

of

auto

processing on Sears Island reasonably foreseeable.

D.
D.
Accordingly,
decision to

we

restrict the

conclude

that

the

EIS secondary impact

the four light-dry industries is reasonable in

findings

in the Mallar Report,

the Land Use

environmental and physical limitations

observe

agencies'
analysis to
light of the

Plan, and the

of Sears Island.

We

that it does not matter whether we, or the district

court, would have reached the same decision as the agencies.

Our only role, and that of the district court, is to satisfy
ourselves that

the agencies have "made

a reasoned decision

based on [their] evaluation" of the information before them.

Oregon Natural Resources Council,
________________________________

490 U.S. at 378.

We are

so satisfied.
VII.
VII.
Conclusion
Conclusion
We

conclude

that

the

agencies'

decision

to

restrict

the EIS analysis of

light-dry industries

secondary impacts to the four

is permissible.

In other

words, the

decision is not too unreasonable for the law to permit it to

stand.

See
___

Sierra Club I,
_____________

769 F.2d at

871.

We

conclude

-4848

also

that the district court

considering
Pitts.
_____
case

the agencies'

We

can find

law,

that would

did not err

affidavits pursuant

nothing in NEPA,
allow us

to

reviewing an

agency's decision about

mandated EIS

may not

Costs to appellees.
__________________

to

Camp v.
____

its regulations,

or

conclude that

a court

the scope of

a NEPA-

consider affidavits that

basis for the agency's decision.

Affirmed.
________

in admitting and

explain the

-4949