[DOWNLOAD] "Village of Elk Grove Village v. Evans" by United States Court of Appeals for the Seventh Circuit # eBook PDF Kindle ePub Free

📘 Read Now     📥 Download

eBook details

• Title: Village of Elk Grove Village v. Evans
• Author : United States Court of Appeals for the Seventh Circuit
• Release Date : January 25, 1993
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 63 KB

Description

POSNER, Circuit Judge. The Village of Elk Grove, Illinois, brought this suit to enjoin the Corps of Engineers (the relevant officials of whom are the defendants) from granting a permit for the construction of a radio tower in the floodplain of a creek near the village. (Actually there were to be two radio towers side by side, but we can disregard that detail.) The tower was to be built by HP/Meacham Road Land Limited Partnership on land owned by HP, and transferred to Columbia Broadcasting System upon completion. The suit claims that the granting of the permit violated Executive Order 11988, issued by President Carter and still in force, which forbids any federal agency to authorize construction in a floodplain if there is a practicable alternative. 42 Fed. Reg. 26951 (May 24, 1977), as amended, 44 Fed. Reg. 43239 (July 20, 1979). The Corps of Engineers had got into the act because, under the Clean Water Act, 33 U.S.C. §§ 1251 et seq., a permit from the Corps is required for construction that would result in certain types of discharge into wetlands, § 1344; and the construction of the radio tower would do that. A wetland is not a floodplain, but Executive Order 11988, at least as interpreted by the Village of Elk Grove, requires the Corps of Engineers, as it does every other federal agency, to explore alternatives to floodplain development whenever the Corps is asked to grant a permit, under whatever authority, that would permit such development. Nevertheless the Corps granted the permit to the builder-owner without considering alternative sites for the tower that were not on the floodplain. It did so because it concluded that the nature of the project qualified it for a general permit--in effect for an exemption from the requirement of seeking an individual permit in which applicant would have to show that construction off the floodplain would be infeasible. 33 U.S.C. § 1344(e); 33 C.F.R. § 330.5. The Corps of Engineers believes that this exemption is consistent with the executive order, having been crafted with due concern for possible floodplain effects. The Village, disagreeing, brought this suit. It invoked the jurisdiction of the district court under 28 U.S.C. § 1331, the general federal-question statute; claims a right to judicial relief under the Administrative Procedure Act, which creates a judicial remedy against agency action ""found to be . . . not in accordance with law,"" 5 U.S.C. § 706(2)(A); and contends that the executive order which it alleges the Corps violated is ""law"" within the meaning of section 706(2)(A). The district Judge, rejecting the last point, granted summary judgment for the defendants and dismissed the suit. The Village wants an injunction that, by forcing the Corps of Engineers to rescind the exemption, will prevent construction until the Corps conducts an individualized inquiry into the compatibility of the construction with the executive order.

Ebook Download "Village of Elk Grove Village v. Evans" PDF ePub Kindle