Sierra Club v. Marsh ( 1992 )


Menu:
  • 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 was
    ________________ ___________________________________
    on brief for appellants.
    Anthony C. Roth with whom John Quarles, Morgan, Lewis & Bockius,
    _______________ _____________ ________________________
    and Thomas G. Reeves, Chief Counsel, Legal Division, Maine Department
    ________________
    of Transportation, were on joint brief of appellees, for appellee
    Maine Department of Transportation.
    David C. Shilton, Attorney, Environment and Natural Resources
    __________________
    Division, U.S. Department of Justice, with whom Barry M. Hartman,
    _________________
    Acting Assistant Attorney General, and Robert L. Klarquist, Attorney,
    ___________________
    Environment and Natural Resources Division, U.S. Department of
    Justice, were on joint brief of appellees, for federal appellees.
    ____________________


    ____________________

    _____________________

    * Of the District of Massachusetts, sitting by designation.

    2

















    KEETON, District Judge. Sierra Club and two of
    _______________

    its members ("Sierra Club"), challenging the adequacy of an

    Environmental Impact Statement ("EIS"), appeal from a

    summary judgment entered by the United States District Court

    for the District of Maine in favor of appellees Maine

    Department of Transportation, Federal Highway

    Administration, Army Corps of Engineers, and United States

    Coast Guard ("agencies") on Sierra Club's National

    Environmental Policy Act ("NEPA") claims arising out of a

    port project in Searsport, Maine. Although it appears that

    the Federal Highway Administration is ultimately responsible

    for the preparation of the final EIS, see Sierra Club v.
    ___ ___________

    Marsh, 701 F. Supp. 886, 916-18 (D. Me. 1988) and
    _____

    Supplemental Affidavit of William Richardson at 1, all of

    the defendant agencies were involved in the preparation of

    the EIS. As a matter of convenience, we will refer to the

    "agencies" when discussing the EIS.

    Sierra Club challenges the district court's

    conclusion that the analysis of secondary impacts in the

    agencies' final EIS satisfies NEPA. We affirm.

    I.
    I.
    Background
    Background

    More than ten years ago, Maine Department of

    Transportation decided to build a modern port 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 rail and road

    access to the port facility. A more detailed description of

    the project appears in 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 District of Maine, Sierra Club has

    initiated several legal challenges to the construction of

    the port facility. Rulings of the district court in the

    first two cases have been the subject of three appeals to

    this court. See Sierra Club v. Marsh, 769 F.2d 868 (1st
    ___ ____________ _____

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

    federal agencies to prepare an EIS); Sierra Club v.
    ____________

    Secretary of Transp., 779 F.2d 776 (1st Cir. 1985) ("Sierra
    ____________________ ______

    Club II") (affirming the district court's decision that the
    _______

    Coast Guard had unlawfully issued a permit for the proposed

    causeway under the General Bridge Act); 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


    -4-
    4




















    19, 1988. In this complaint Sierra Club requests

    declaratory and injunctive relief halting construction of

    the marine dry cargo terminal on Sears Island. The

    complaint alleges that construction permits issued by the

    federal agency defendants must be suspended due to failure

    to comply with the Clean Water Act, 33 U.S.C. 1344,

    section 9 of the Rivers and Harbors Act, 33 U.S.C. 401,

    and NEPA, 42 U.S.C. 4331, et seq.
    __ ___

    Some of the issues raised in the complaint have

    been dispositively resolved and are not before us. In

    particular, the district court entered two separate final

    judgments for the agencies -- on the Clean Water Act claims

    on January 30, 1990 and on the Harbor Act claims on March

    29, 1991 -- from which Sierra Club did not appeal. These

    claims are not at issue in this appeal. The procedural

    history that follows, therefore, is concerned only with the

    issues that Sierra Club seeks to pursue on this appeal.

    Sierra Club moved for a preliminary injunction on

    August 12, 1988. The district court denied Sierra Club's

    motion on the ground that Sierra Club had failed to

    establish that it would be irreparably harmed if an

    injunction was not issued. See Sierra Club v. Marsh, 701 F.
    ___ ___________ _____

    Supp. 886 (D. Me. 1988) ("Sierra Club IV-A"). On appeal,
    ________________


    -5-
    5




















    this court vacated the district court's decision and

    remanded. See Sierra Club v. Marsh, 872 F.2d 497 (1st Cir.
    ___ ___________ _____

    1989) ("Sierra Club IV-B"). Upon remand, the district court
    ________________

    (Cyr, J.) reconsidered the issue of irreparable harm and

    issued a preliminary injunction. See Sierra Club v. Marsh,
    ___ ___________ _____

    714 F. Supp. 539 (D. Me. 1989) ("Sierra Club IV-C"). The
    _________________

    district court concluded that Sierra Club had shown a

    likelihood of success on the merits of its NEPA claims, and

    in particular on its claim that the EIS discussion of the

    port project's secondary impacts was inadequate. See id. at
    ___ ___

    564.

    Approximately two months after entering the

    preliminary injunction, the district court allowed, over

    opposition by Sierra Club, a defense motion for leave to

    make a supplemental filing.

    The agencies filed four affidavits to explain the

    administrative record, and all parties filed additional

    memoranda. After reviewing the administrative record,

    affidavits, and additional memoranda from the parties, the

    district court (Cyr, J.) granted summary judgment for the

    agencies on Sierra Club's NEPA secondary impacts claim and

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

    Sierra Club v. Marsh, 744 F. Supp. 352 (D. Me. 1989)
    ____________ _____


    -6-
    6




















    ("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. This court concluded that the district

    court's decision on summary judgment was interlocutory

    rather than final, that it 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 23, 1992, as amended February

    12, 1992, the district court (Brody, J.) entered final

    judgment for the agencies, incorporating, inter alia, the
    _____ ____

    earlier summary judgment for the agencies on Sierra Club's

    NEPA secondary impact claim. This appeal followed.

    In Sierra Club IV-C, the district court concluded
    ________________

    also that Sierra Club had demonstrated a likelihood of

    success on the merits of its claim that the agencies

    violated NEPA by not preparing a supplemental EIS to

    evaluate new information on the acreage of the project. See
    ___

    Sierra Club IV-C, 714 F. Supp. at 565-72. In its Memorandum
    ________________

    on the parties' cross-motions for summary judgment, the


    -7-
    7




















    district court again concluded that Sierra Club had

    demonstrated a likelihood of success on its supplemental EIS

    claim, but the court deferred making a judgment on the

    merits in light of the agencies' proposal to retain a

    consultant to study whether the increased acreage

    requirements of the project warrant the preparation of a

    supplemental EIS. See Sierra Club IV-D, 744 F. Supp. at
    ___ _________________

    365-68. As a result of further consideration by the

    agencies, agency announcements were made on July 15 and July

    25, 1991, that a supplemental EIS was to be prepared.

    Accordingly, in its Final Judgment of January 23, 1992, as

    amended February 12, 1992, the district court dismissed

    Sierra Club's supplemental EIS claim as moot. Thus, our

    affirmance may not bring an end to litigation over the

    Searsport project as Sierra Club may challenge the adequacy

    of the 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 project "significantly affecting the

    quality of the human environment." 42 U.S.C.


    -8-
    8




















    4332(2)(C)(i). Not all impacts need be discussed in

    exhaustive detail. First, only those effects that 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 "likely" and "foreseeable,"

    as applied to a type of environmental impact, are properly

    interpreted as meaning that the impact is sufficiently

    likely to occur that a person of ordinary prudence would

    take it into account in reaching a decision. Cf. Barber
    ___ ______

    Lines A/S v. M/V Donau Maru, 764 F.2d 50 (1st Cir. 1985)
    _________ _______________

    (explaining the meaning of "likely" and "foreseeable" as

    applied to tort liability for "financial losses" not

    associated with physical harm). Thus, "duty" to discuss in

    the EIS particular ones among all the types of potential

    impacts is not an "absolute" or "strict" duty but one

    measured by an objective standard. That is, a likelihood of

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

    the perspective of the person of ordinary prudence in the

    position of the decisionmaker at the time the decision is

    made about what to include in the EIS. Second, even as to

    those effects sufficiently likely to occur to merit

    inclusion, the EIS need only "furnish such information as

    appears to be reasonably necessary under the circumstances


    -9-
    9




















    for evaluation of the project." Britt v. United States Army
    _____ __________________

    Corps of Engineers, 769 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 the issue is whether the

    "'EIS can be said to constitute a statement which enable[d]

    those who did not have a 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 the interest of clarity, we elaborate

    immediately below on the first of these two points and on

    its applicability to this case. More 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. See 40 C.F.R. 1500, et seq.
    ___ __ ____

    (1991); Sierra Club I, 769 F.2d at 870. These regulations
    _____________

    mandate that the EIS discuss the direct and indirect effects

    (secondary impacts) of a proposed project. See 40 C.F.R.
    ___

    1502.16. Indirect effects (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

    -10-
    10




















    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




    -11-
    11




















    The EIS at issue in this case defines secondary

    impacts as "impacts induced by and attributable to the

    [cargo] terminal and its operation." 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 equipment; (3) electrical and

    electronic machinery and equipment; and (4) transportation

    equipment. See id. This type of industry is known as
    ___ ___

    "light-dry." The EIS does not discuss the development of

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

    project.

    In its Memorandum on Sierra Club's motion for a

    preliminary injunction, the district court determined that

    the agencies' decision to include the four light-dry

    industries in the EIS evaluation of secondary impacts was

    reasonable. See Sierra Club IV-C, 714 F. Supp. at 564. The
    ___ ________________

    court concluded also, however, that the information before

    the agencies suggested that it was reasonably foreseeable

    that heavy industry, as well as food processing and forest


    -12-
    12




















    product industries, were likely to develop on Sears Island

    as a result of the port project. The district court

    concluded that it was unable to determine whether the

    agencies' decision not to include these industries 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 (emphasis added). Accordingly, the court
    ___

    concluded that Sierra Club had exhibited a likelihood of

    success on the merits of its claim that the EIS analysis of

    secondary impacts was inadequate and entered a preliminary

    injunction.

    In the filings submitted after the preliminary

    injunction was issued, the agencies offered four affidavits

    to supplement and explain the administrative record. See
    ___

    Supplemental Affidavit of Francis Mahady ("Mahady


    -13-
    13




















    Supplemental Affidavit"); Supplemental Affidavit of William

    Richardson ("Richardson Supplemental Affidavit");

    Supplemental Affidavit of Robert Hunter; Affidavit of Leslie

    Stevens. Sierra Club moved to strike the affidavits. The

    district court, citing Camp v. Pitts, 411 U.S. 138, 142
    ____ _____

    (1973)(per curiam), concluded that the affidavits could

    properly be and were received by the court to explain

    apparent gaps in, and otherwise to clarify, the

    administrative record. See Sierra Club IV-D, 744 F. Supp.
    ___ ________________

    at 356 n.7. After reviewing the affidavits, the court ruled

    that the supplemental affidavits remedied the deficiencies

    in the administrative record because they demonstrated that

    there was an actual agency decision to restrict the

    secondary impact analysis to light-dry industries and they

    explained the rationale for that decision. See id. at 359 &
    ___ ___

    n.11. The court concluded further that the basis for the

    agencies' decision was rational and supported by credible

    evidence. See id. at 359.
    ___ ___

    In the present appeal, following further

    proceedings and the entry of Final Judgment, Sierra Club

    contends (1) that the district court erred in admitting and

    considering the agencies' supplemental affidavits to

    determine whether the EIS discussion of secondary impacts is


    -14-
    14




















    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

    Judicial review of an agency's compliance with

    NEPA is governed by section 10 of the Administrative

    Procedure Act, 5 U.S.C. 701, et seq. See Marsh v. Oregon
    __ ___ ___ _____ ______

    Natural Resources Council, 490 U.S. 360, 375 (1989). A
    __________________________

    reviewing court must hold unlawful any agency action,

    findings and conclusions that are

    "'arbitrary, capricious, an abuse of discretion, or

    otherwise not in accordance with the law . . . .'"

    Conservation Law Foundation, Inc. v. Secretary of the
    ____________________________________ __________________

    Interior, 864 F.2d 954, 957 (1st Cir. 1989) (quoting 5
    ________

    U.S.C. 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. The reviewing court should not
    ____

    defer to the agency, however, "without carefully reviewing

    the record and satisfying [itself] that the agency has made

    -15-
    15




















    a reasoned decision based on its evaluation" of the

    available information. Oregon Natural Resources Council,
    _________________________________

    490 U.S. at 378; see 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, the court must "look to see if the
    ____________________

    agency decision, in 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 standard of

    review, concluded that the agencies' decision to restrict

    the EIS secondary impacts analysis 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 to deciding what standard of review to

    apply to our review of a district court's review of an

    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

    -16-
    16




















    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 on matters of fact that it has
    __

    determined, or upon evidence presented by witnesses in

    court, or even upon lengthy district court proceedings in

    which knowledgeable counsel explain the agency's decision-

    making process in detail." Id. at 872. Where, 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 degree of independence in reviewing the

    administrative record" to determine whether the district

    court's decision is correct. Id.
    ___

    The agencies argue, unsurprisingly, that the

    circumstances of this case at this point in the litigation

    require us to apply the "hesitate-to-overturn" standard in

    our review of the district court's decision. Sierra Club,

    also unsurprisingly, contends that the circumstances of this

    case mandate that we apply the "considerable-degree-of-

    independence" standard. We need not resolve this dispute.


    -17-
    17




















    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 the district court erred

    in admitting and considering the agencies' supplemental

    affidavits to

































    -18-
    18




















    determine the adequacy of the EIS evaluation of secondary

    impacts.

    A.
    A.

    As stated in Part II, supra, NEPA requires an
    _____

    agency to prepare a "detailed statement" discussing, inter
    _____

    alia, the indirect effects of a proposed project. See 40
    ____ ___

    C.F.R. 1502.16. This requirement serves many purposes.

    "The detailed statement aids a reviewing court to ascertain

    whether the agency has given [ ] good faith consideration to

    environmental concerns . . . , provides environmental

    information to the public and interested departments of

    government, and prevents stubborn problems or significant

    criticism from being shielded from internal and external

    scrutiny." Grazing Fields Farm, 626 F.2d at 1072 (citing
    ___________________

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

    Because public disclosure is a central purpose of

    NEPA, an EIS that does not include all that is required by

    NEPA may not be cured by memoranda or reports that are

    included in the administrative record but are not

    incorporated into the EIS itself. See id. at 1073; see also
    ___ ___ ___ ____

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

    circulated and available for public comment, it does not

    satisfy NEPA's EIS requirements"); National Resources
    ____________________


    -19-
    19




















    Defense Council, Inc. v. Morton, 458 F.2d 827, 836 (D.C.
    _____________________ ______

    Cir. 1972) (holding that the EIS "must set forth the

    material contemplated by Congress in form suitable for the

    enlightenment of the others concerned"); Appalachian
    ___________

    Mountain Club v. Brinegar, 394 F. Supp. 105, 122 (D.N.H.
    _____________ ________

    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 evaluate the data and make an informed

    judgment as to the validity of the conclusions to be drawn

    therefrom").

    Sierra Club argues that "[h]aving concluded on May

    30, 1989, Sierra Club IV-C, 714 F. Supp. at 565, that the
    _________________

    EIS did not properly explain why the secondary impacts

    analysis of the EIS considered only four light-dry

    industries, the District Court erred by allowing the use of

    affidavits to provide the missing explanation." Appellants'

    Brief at p. 29. Such an approach, the argument goes,

    violates NEPA by allowing an otherwise defective EIS to be

    cured by documentation not circulated to the public. Sierra

    Club's challenge fails for two reasons.

    First, the district court did not conclude that

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


    -20-
    20




















    how the agencies determined the scope of the EIS secondary

    impacts analysis. Instead, the court concluded that it

    could find nothing in the administrative record that
    ______________________

    evidenced that the agencies had ever made a decision on what

    secondary impacts to include in the EIS, let alone any

    evidence of the rationale for that decision. See Part III,
    ___

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

    Second, and more important, Sierra Club's

    contention suffers from a false premise. The implied

    premise of its position is that NEPA requires the EIS to
    _____________________

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

    that, for example, NEPA requires the EIS to include a

    discussion of why the agency determined that certain

    indirect effects of a proposed project are not reasonably
    ___________________

    foreseeable and therefore are not discussed in the EIS. It
    _______________________________________________________

    is true that NEPA requires an EIS to analyze the

    environmental effects of what the agency decisionmakers

    determine to be the secondary industrial effects of a

    proposed project. In the statute and its concomitant

    regulations, however, there is nothing that requires an EIS

    to explain how an agency determined the scope of an EIS,

    including, for example, why it excluded from the EIS each

    alleged impact that the agencies determined did not in fact


    -21-
    21




















    qualify as a secondary impact. See Piedmont Heights Civic
    ___ _______________________

    Club, Inc. v. Moreland, 637 F.2d 430, 440 (5th Cir. 1981)
    ___________ ________

    (holding that it (the court) could not find "any authority,

    requiring an EIS to explicitly discuss the factors that

    determine the scope of the EIS").

    Our decision in Grazing Fields Farm illustrates
    ____________________

    this distinction. NEPA requires an EIS to include an

    evaluation of alternatives to the proposed agency action.

    See 42 U.S.C.
    ___

    4332(2)(C)(iii). The plaintiff in Grazing Fields Farm
    ____________________

    challenged the adequacy of an EIS prepared for a highway

    project on the ground that it did not adequately discuss a

    suggested alternative to the proposed route of the highway.

    After reviewing the administrative record, the district

    court concluded that the federal agency had carefully and

    thoroughly evaluated the alternative in compliance with

    NEPA, even though that evaluation and the information it was

    based upon was not included in the EIS. See Grazing Fields
    ___ ______________

    Farm, 626 F.2d at 1071. This court reversed, holding that
    ____

    an administrative record cannot satisfy NEPA's requirement

    for a detailed statement evaluating alternatives to a

    proposed project. See id. at 1072. The opinion cautioned,
    ___ ___

    however, that "our holding does not mean that the


    -22-
    22




















    administrative record should play no part in the evaluation

    of the adequacy of the discussion of alternatives in an

    [EIS]." 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
    standard.

    Id. (footnotes omitted); see also Valley Citizens For a Safe
    ___ ___ ____ __________________________

    Env't v. Aldridge, 886 F.2d 458, 460 (1st Cir. 1989)
    _____ ________

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

    . . . is normally whether the Statement is 'adequate' in

    light of the information and comments before the 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


    -23-
    23




















    reviewing court may not rely on information and analysis in

    an administrative record to cure an inadequate EIS, but it

    may, and indeed must, review the administrative record to

    determine whether the EIS is inadequate in the first place.

    See Sierra Club IV-D, 744 F. Supp. at 359 n.11. In
    ___ _________________

    Conservation Law Foundation, Inc. v. Andrus, 617 F.2d 296
    __________________________________ ______

    (1st Cir. 1979), for example, the plaintiff claimed that an

    EIS did not adequately discuss an alternative to the

    proposed project. After reviewing information in the

    administrative record that revealed that the alternative was

    largely hypothetical, we concluded that the "pedestrian"

    analysis of the alternative in the EIS was adequate. See
    ___

    id. at 299. "Thus, our examination of the administrative
    ___

    record informed our judgment as to how extensively the

    proposed alternative had to be discussed within the EIS

    itself." Grazing Fields Farm, 626 F.2d at 1074 n.4
    _____________________

    (discussing Andrus).
    ______

    In this case the district court similarly examined

    the administrative record, including the supplementary

    affidavits, to determine whether the EIS secondary impact

    analysis was adequate. After reviewing the record, the

    court concluded that it was reasonable for the agencies to

    conclude that the four light-dry industries evaluated in the


    -24-
    24




















    EIS are the only industries that are reasonably likely to

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

    If, in contrast, the district court had concluded, for

    example, that it was unreasonable for the agencies to decide

    that heavy industry was not a reasonably foreseeable

    secondary impact of the port project, therefore making the

    EIS analysis of secondary impacts inadequate (because the

    EIS did not discuss all reasonably foreseeable indirect

    effects), that inadequacy could 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 supplementary affidavits

    that suggested that the agencies had made an informed, good

    faith decision to go forward with the project after

    informing themselves of the environmental effects of heavy

    industry because that approach would defeat NEPA's goal of

    informing the public of the likely environmental

    consequences of the proposed project.

    B.
    B.

    Having determined that a reviewing court may turn

    to the administrative record to decide whether an agency's

    decision on the scope of an EIS is reasonable, we must


    -25-
    25




















    address whether the district court erred in permitting

    supplementation of the administrative record by considering

    the agencies' affidavits submitted after entry of the

    preliminary injunction.

    The focal point for a court's review of an

    agency's decision is the administrative record. See, e.g.,
    ___ ____

    Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743
    ____________________________ ______

    (1985); Camp, 411 U.S. at 142; Valley Citizens For a Safe
    ____ ___________________________

    Env't, 886 F.2d at 460. "The fact that review sometimes or
    _____

    often focuses on the initial record does not mean that it

    must, or always, will do so." Valley Citizens 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 U.S. at 143; see also Overton Park, 401 U.S. at
    ____ ___ ____ ____________

    420 (stating that where there are no formal findings,

    examining the decisionmakers themselves may be the only way

    there can be effective judicial review); Manhattan Tankers,
    __________________

    Inc. v. Dole, 787 F.2d 667, 672 n.6 (D.C. Cir. 1986)
    ____ ____

    (holding that the court "may properly uphold the Coast

    Guard's decision on the basis of affidavits or testimony by

    -26-
    26




















    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. Texas Oil &
    _____________________ ___________

    Gas Corp., 734 F.2d 347, 357 (8th Cir. 1984) (quoting
    _________

    Independent Meat Packers Ass'n v. Bertz, 526 F.2d 228, 239
    _______________________________ _____

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

    1158 (1985). The new material, however, should be

    explanatory of the decisionmakers' action at the time it

    occurred. 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. v. Costle, 657 F.2d 275,
    _________________________________ ______

    285 (D.C. Cir. 1981); Asarco, Inc. v. United States Envtl.
    ____________ ____________________

    Protection Agency, 616 F.2d 1153, 1159 (9th Cir. 1980), and
    _________________

    if included should be disregarded. "If the agency action,

    once explained by the proper agency official, is not

    sustainable on the record itself, the proper judicial

    approach has been to vacate the action and to remand . . .

    to the agency for further consideration." Costle, 657 F.2d
    ______

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

    at 1159.


    -27-
    27




















    The district court concluded initially that the

    administrative record did not contain evidence that the

    agencies considered the prospect that industries other than

    light-dry industries might locate on Sears Island. The

    court explained that [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
    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,

    -28-
    28




















    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, 714 F. Supp. at 565 (citation omitted).
    ________________

    After reviewing the supplemental affidavits, the court

    decided that its initial conclusion about the 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 had properly considered all the

    information before them was that the administrative record

    reflected that a special report on secondary impacts ("ERA

    Special Report") was to be prepared, yet the special report

    was not included in the record and there was nothing in the

    record to indicate that the proper decisionmakers had ever

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

    563-64. The court later concluded, however, that the


    -29-
    29




















    supplemental affidavits satisfactorily explained why the

    administrative record did not include the ERA Special Report

    -- no separate report was ever prepared. Instead, the

    report was prepared in "camera ready" form to allow direct

    incorporation into the EIS. See Mahady Supplemental
    ___

    Affidavit at 6; Richardson Supplemental Affidavit at 10.



    The affidavits demonstrate that there was an

    actual agency decision on the scope of the EIS secondary

    impact analysis.

    Francis Mahady (Vice-President of Economics Research

    Associates, the company responsible for preparing the

    written analysis of the reasonably foreseeable secondary

    impacts of the 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 the appropriate agency decisionmakers. Mahady

    Supplemental Affidavit at 14. William Richardson (the

    Division Administrator of the Department of Transportation,

    Federal Highway Administration, and the person responsible

    for the administration of the Federal-aid Highway Program in

    Maine, including compliance with all applicable laws, see
    ___

    Richardson Supplemental Affidavit at 1) explains that he


    -30-
    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 industries. Mahady describes the "target

    market analysis" method used to determine 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 eliminated heavy industry as a reasonably

    foreseeable tenant of Sears Island. Mahady Supplemental

    Affidavit at 11, 12. Mahady also explains why the

    agencies no longer consider the development of food and

    forest product manufacturing as a likely consequence of the

    port project, id. at 13, and he explains how information
    ___


    -31-
    31




















    on the limited sewer and water capabilities of Sears Island

    led the agencies 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, the district court

    concluded that its questions about whether the agencies'

    decisionmakers had considered all available information and

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

    industry had been answered. See Sierra Club IV-D, 744 F.
    ___ _________________

    Supp. at 359. The 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 that the affidavits explain the

    agencies' decision in the manner contemplated by Camp v.
    ____

    Pitts. The affidavits do not contain any "facts" about the
    _____

    proposed project that are not also included in the EIS and

    administrative record. Rather, the affidavits simply

    explain why, based upon the information in the

    administrative record and the EIS, the agencies concluded

    that the four light-dry industries were the only reasonably




    -32-
    32




















    foreseeable secondary industrial effects of the proposed

    port project.

    Sierra Club argues that Camp v. Pitts does not
    ____ _____

    apply to a court's review of an agency decision under NEPA

    because to allow explanatory affidavits would violate NEPA's

    goal of public disclosure. As stated in Part V(A), supra,
    _____

    however, NEPA does not require an EIS to discuss how the

    agency determined the scope of the EIS. Thus, NEPA is not

    violated when a court relies upon affidavits to explain an

    agency's rationale for its decision that a certain possible

    indirect effect of a proposed project is not within the

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

    Moreover, Sierra Club has cited no authority for its

    assertion that a court should review an agency's decision

    about what to include in a NEPA-mandated EIS in a manner

    different from the way courts typically review agency

    decisions.

    Sierra Club's assertion that the affidavits are

    inadmissible because they constitute post-hoc

    "rationalizations" is similarly without merit. In Overton
    _______

    Park, the Supreme Court specifically anticipated that
    ____

    affidavits containing post-hoc explanations would be

    considered by courts reviewing the propriety of an agency


    -33-
    33




















    decision. The solution in such situations is not to ignore

    the affidavits altogether, but rather to view them

    "critically." Overton Park, 401 U.S. at 420. The district
    ____________

    court noted this limitation. Sierra Club IV-D, 744 F. Supp.
    ________________

    at 356 n.7. In this case, the agencies' explanations for

    their 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 the credibility of

    Mahady's assertion that heavy industry could not develop on

    Sears' Island because of the Island's limited water and

    sewer capabilities. Sierra Club claimed that a 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 at considerable cost" to provide a million

    gallons 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. Sierra Club IV-D, 744 F. Supp.
    ________________

    at 358 n.10. In these circumstances, the district court


    -34-
    34




















    properly accepted the post-hoc explanations of the

    decisionmakers' action.

    VI.
    VI.
    Application of the Legal Requirements to the
    Application of the Legal Requirements to the
    Secondary Impact Analysis in the Challenged EIS
    Secondary Impact Analysis in the Challenged EIS

    Sierra Club challenges the agencies' decision to

    restrict the EIS analysis of secondary impacts to light-dry

    industries on the ground that "it is too unreasonable for

    the law to permit it to stand." Sierra Club I, 769 F.2d at
    _____________

    871. In particular, Sierra Club asserts (1) that it was

    unreasonable to include the four light-dry industries in the

    EIS discussion of secondary impacts at all because the

    development of these industries on Sears Island is not a

    reasonably foreseeable indirect effect of the port project;

    (2) that it was unreasonable not to include heavy industry

    as a reasonably foreseeable indirect effect of the port

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

    development of water-dependent industry as a secondary

    impact. 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 of the four

    light-dry industries on Sears Island. In support of its


    -35-
    35




















    argument, Sierra Club points out that the final EIS states

    that the four light-dry industries analyzed as secondary

    impacts do not require access to water. See Final EIS, Vol.
    ___

    II, F-5 (App. 220). The EIS states also that "due to the

    high availability of fully serviced industrial park land in

    the Greater Bangor area" industries that do not require

    access to water are likely to locate in the Greater Bangor

    area rather than the Searsport area. See id. at F-2 (App.
    ___ ___

    204). Sierra Club asserts also that none of the reports

    before the agencies lists a marine cargo port 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 in Maine,

    "it was reasonably certain that the industries which

    ultimately located in the industrial park would be those

    which both were acceptable to the local population and were

    the targets of intensive marketing efforts and inducements."

    Mahady Supplemental Affidavit at 11. This method of

    determining likely tenants of the industrial park is called

    "target market analysis." A 1980 Land Use Plan prepared by

    Bangor Investment Corporation, owner of Sears Island ("Land

    Use Plan"), includes a marketing study that identifies the

    four light-dry industries as those "that could best utilize


    -36-
    36




















    the opportunities offered by the port facility, Sears

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

    most benefit to the existing region." Land Use Plan at 24

    (App. 548). In addition, a 1983 report prepared for the

    Town of Searsport by Mallar Development Services entitled "A

    Municipal Response Plan for the Industrial Development of

    Sears Island" ("Mallar Report"), targets the same four

    light-dry industries as good candidates for development on

    Sears Island. Thus, the agencies concluded that because the

    four light-dry industries are those that local officials and

    the Sears Island property owners are trying to attract to

    the industrial park, these industries are reasonably likely

    to develop on Sears Island. Mahady Supplemental Affidavit

    at 11.

    Moreover, although the four light-dry industries

    do not require access to water, the information before the

    agencies supports a conclusion that these four industries

    would benefit from close proximity to the port. The Mallar

    report observes that these industries would benefit from the

    transport cost savings associated with a centralized port,

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

    significant import/export needs or potential, see, e.g.,
    ___ ____




    -37-
    37




















    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. This conclusion

    is consistent with our 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 develop on Sears Island -- "are detailed enough for an

    EIS to describe the type of development 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 agencies' decision to include the

    four light-dry industries in the EIS analysis of secondary

    impacts arbitrary and capricious. First, not all

    information in the administrative record must support the

    agency decision. See Environmental Coalition of Broward
    ___ ____________________________________

    County, Inc. v. Myers, 831 F.2d 984, 986 (11th Cir. 1987)
    _____________ _____

    (citing Bowman Transp., Inc. v. Arkansas-Best Freight
    ______________________ ______________________

    System, Inc., 419 U.S. 281, 285-86 (1974)). Second, when
    ____________


    -38-
    38




















    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 the Greater Bangor area. The EIS concludes

    that Mack Point is not a viable alternative to Sears Island

    in part because Mack Point does not offer sufficient land

    contiguous to the port. Thus, industries not dependent on

    water 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, F-1 to F-2 (App. 203-04). Indeed,
    ___

    that same section of the EIS observes that "[o]nly Sears

    Island offers sufficient developable industrial land which

    is contiguous to a prospective port facility." Id.
    ___

    B.
    B.

    Sierra Club argues next that the final EIS is

    inadequate because it repeatedly refers to Searsport as the

    future site of "heavy industry,"1 yet the EIS secondary

    ____________________

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

    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

    -39-
    39




















    impact analysis assumes that only light-dry industry is

    likely to develop on Sears Island. For example, in several

    places the EIS refers to a 1978 report from the State of

    Maine Advisory Committee on Coastal Development and

    Conservation ("Advisory Report") that recommends that heavy

    industry be clustered in either the Portland-South Portland

    area or the Searsport-Stockton Springs-Penobscot area. See,
    ___

    e.g., Final EIS, Vol I, 2-3 (App. 91). Moreover, a letter
    ____

    written by Leslie Stevens, Director of the Maine Development

    Office, states that the proposed Sears Island Industrial

    Park is intended for heavy industry that needs close

    proximity to a cargo terminal. 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).

    -40-
    40




















    The agencies provide two related explanations for

    their decision not to include the development of "heavy

    industry" as a reasonably foreseeable indirect effect of the

    port project. Mahady explains that a key factor in the

    selection of industries as "reasonably foreseeable" tenants

    of the industrial park was that "industries locating in the

    industrial parks had to be those which do not require

    substantial water and sewer capabilities in order to

    function," because existing sewer and water facilities are

    limited. Mahady affidavit at 10 (citing Land Use Plan and

    Mallar Report). Thus, for Sears Island to accommodate heavy

    industry "major facility improvements would be required at

    considerable cost." Id. Because these improvements were not
    ___

    part of the proposed port project, and because the state,

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

    improvements in view of their expense, the agencies

    concluded that heavy industry was unlikely to locate on

    Sears Island as a consequence of the port project. See id.
    ___ __

    The use of the "target market analysis" also led

    the agencies to conclude that "heavy industry" was unlikely

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

    project. As stated in Part VI(A), supra, the local
    _____

    officials and property owners have directed their marketing


    -41-
    41




















    efforts toward light-dry industries -- not heavy industry.

    Moreover, because of the environmental effects of heavy

    industry, the development of such industry on Sears Island

    would likely meet heavy public opposition. Mahady Affidavit

    at 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 the alternative, Sierra Club contends that the

    agencies' conclusion that heavy industry is unlikely to

    locate at Sears Island is a "substantial revision" to the

    final EIS requiring the preparation of a supplemental EIS.

    NEPA regulations mandate










    -42-
    42




















    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 industry at that location has

    been abandoned, then the purpose of the project has

    fundamentally changed and the public must be informed of

    that fact through a supplemental EIS." Appellants' Brief at

    p. 20.

    We can find nothing in the record to support

    Sierra Club's assertion that "the purpose 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 of the

    state in order "to ensure that more than 95% of Maine's

    3,000 mile coastline would be free of heavy industries and

    major port activities." Final EIS, Vol. I, 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

    -43-
    43




















    Sears Island. Nor does it follow from the agencies'

    conclusion that heavy industry is unlikely to develop on

    Sears Island as a consequence of the port project that Maine

    has abandoned its clustering policy. Thus, there is no need

    to issue a supplementary EIS.

    C.
    C.

    Sierra Club claims that the development of water-

    dependent industry is a reasonably foreseeable indirect

    effect of the port project. See, e.g., Final EIS, Volume
    ___ ____

    II, F-2 (App. 203) ("there are really two classes of

    industries likely to locate at or near the cargo port

    facility proposed for Searsport: [the first of which is]

    those industries engaged in intensive handling of waterborne

    commerce which require direct proximity to the port

    facility, since greater distance from the port would add

    transportation costs which would make their operations

    infeasible . . . .").

    Although Sierra Club does not identify what types

    of water-dependent industries it believes the EIS should

    have discussed, it does identify a 1987 study excerpted in

    the EIS that analyzes the water-dependent industries that

    have developed at port projects comparable to the Searsport

    proposal. See Final EIS, Vol I, 4-149 to 4-151 (App. 158-
    ___


    -44-
    44




















    60). The study found that auto processing, stevedoring, and

    chemical industries developed at Colonels Island, Georgia,

    and that industries involving bananas, phosphates,

    stevedoring, and ship repair developed at Port Manatee,

    Florida. See id. Sierra Club appears to contend that the
    ___ ___

    EIS should have discussed these industries as reasonably

    foreseeable secondary impacts, or at the very least,

    discussed why they are not reasonably foreseeable.

    The agencies respond that the EIS discusses

    industries that rely upon water commerce as a direct --

    rather than indirect -- effect of the port project;

    therefore there is no reason to discuss these industries as

    secondary impacts. 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, the secondary impacts analysis does not

    discuss these industries. The court concluded, however,

    that the final EIS does not discuss the manufacturing of

    food and forest products because "primary manufacturing

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


    -45-
    45




















    proximity as possible to their raw materials." Sierra Club
    ___________

    IV-D, 744 F. Supp. at 357 n.9 (quoting Mahady Supplementary
    ____

    Affidavit at 13). The agencies determined that these

    industries would utilize storage facilities in the port

    complex. The final EIS considers impacts related to the

    storage of forest and food products in its discussion of the

    direct impacts of the project. See id. (citing Final EIS,
    ______ ___ ___

    Vol. 1, 2-12, 4.4.2, 4.8.2). The document at page 94 of

    the appendix is a diagram of the placement of the storage

    facilities at the port. The agencies' identification of the

    EIS diagram and note nine of Sierra-Club IV-D, is not
    _________________

    completely responsive to Sierra Club's argument. The fact

    that the agencies considered the effects of forest and food

    products industries -- two industries that rely upon water

    commerce, see Sierra Club IV-C, 714 F. Supp. at 565 -- does
    ___ ________________

    not explain why the EIS does not include an analysis of

    other water-dependent industries, such as the industries

    identified in the 1987 study of comparable ports.

    Nonetheless, we conclude that 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


    -46-
    46




















    motion for a preliminary injunction, see Sierra Club IV-C,
    ___ ________________

    714 F. Supp. at 559-65, nor the court's decision on the

    cross-motions for summary judgment, 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 it does not evaluate water-

    dependent industries (other than food and forest

    manufacturing). Absent an exceptional circumstance -- and

    none appears here -- an appellate court will not consider

    arguments that were not made to the trial court. See, e.g.,
    ___ ____

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

    6 (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 it was permissible for the agencies not to

    analyze other water-dependent industries, such as auto

    processing, petroleum, and cement, because the likelihood of

    these industries developing on Sears Island is too

    speculative to be reasonably foreseeable. The only evidence

    Sierra Club identifies (other than general statements to the

    effect that water-dependent industries are likely to

    develop) is the study of comparable ports around the United


    -47-
    47




















    States. The fact that auto processing developed as an

    indirect effect of a port project in Georgia, for example,

    does not, without more, make the development of auto

    processing on Sears Island reasonably foreseeable.

    D.
    D.

    Accordingly, we conclude that the agencies'

    decision to restrict the EIS secondary impact analysis to

    the four light-dry industries is reasonable in light of the

    findings in the Mallar Report, the Land Use Plan, and the

    environmental and physical limitations of Sears Island. We

    observe 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 secondary impacts to the four

    light-dry industries 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
    ___ _____________

    -48-
    48




















    also that the district court did not err in admitting and

    considering the agencies' affidavits pursuant to Camp v.
    ____

    Pitts. We can find nothing in NEPA, its regulations, or
    _____

    case law, that would allow us to conclude that a court

    reviewing an agency's decision about the scope of a NEPA-

    mandated EIS may not consider affidavits that explain the

    basis for the agency's decision.



    Affirmed. Costs to appellees.
    ________ __________________






























    -49-
    49