Mar 132012
EIS was never officially final, court says

Could the Yazoo Pumps, conceived in 1941 and resurrected repeatedly for decades, be dead?

That's the question that pops to mind after reading the Fifth Circuit's decision last week finding that a legal "final" Environmental Impact Statement for the project was never submitted to Congress (Board of Mississippi Levee Commissioners v. U.S., EPA, 11-60302).

EPA vetoed the project in 2008, prompting the Board of Mississippi Levee Commissioners to file suit. The commission lost in district court last year, and on March 6, the appeals court affirmed that decision.

The problem, the court said, was that a final EIS was never submitted to Congress. If one was, there is no record of it.

The court said that "two ambiguous letters" sent to members of Congress in 1983 did not satisfy the requirement that a final EIS be submitted.

"[W]ithout further evidence that the EIS prepared for the project was transmitted to Congress, [the letters] are insufficient to show that the EPA’s decision that [Clean Water Act] section 404(r) does not apply is erroneous," the court said.

Additionally, even if we were to find that the letters showed that the EIS for the project was included as an attachment, there is no evidence in the record to show that the EIS complied with guidelines developed pursuant to section 404(b)(1) of the Water Act or with the [National Environmental Policy Act]. The district court concluded, and we agree, that it is unlikely that the “final EIS” mentioned in the letters—even if it was the EIS related to the project—was actually “final” under the regulations. Certainly it is not so likely that we must overturn the EPA’s contrary finding.

The letters -- really, an identical letter sent to Sen. Robert Stafford (D-Vt.) and Rep. James J. Howard (D-N.J.) -- referred to attachments, but none can be found in the Administrative Record.

The Associated Press (link to story below) quoted Pacific Legal Foundation lawyer Damien Schiff as saying he would have to speak with his clients before deciding whether to request a rehearing or ask the Supreme Court to review the case:

If the ruling stands, “it’s unfortunate that the people of the south Mississippi Delta won’t get the flood protection that Congress has promised them for 75 years,” Schiff said.

But an editorial in the Jackson Clarion-Ledger wondered whether the decision is the "last gasp" for the project, whose history it compared to a bad horror movie.

You can't make a silk purse out of a sow's ear. Whether pushed by self-described conservatives or not, it's still pork: A big government project intended to benefit the few.

Maybe Tuesday's ruling will be the stake through the heart this project deserves. Or, maybe not.

The Yazoo Pump: The Monster That Will Not Die.


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