Full opinion text
MEMORANDUM OF DECISION ON RECONSIDERATION FOLLOWING REMAND CYR, Chief Judge. Plaintiffs, Sierra Club and two of its members, request declaratory and injunc-tive relief halting Maine Department of Transportation’s [MDOT’s] construction of a marine dry cargo terminal on the western shore of Sears Island in Upper Penobscot Bay. Plaintiffs contend that construction permits issued by the Army Corps of Engineers [the Corps] and by the United States Coast Guard [the Coast Guard], as well as Federal Highway Administration [FHwA] funding of the project, must be suspended due to failure to comply with the Clean Water Act [CWA], 33 U.S.C. § 1251 et seq., the National Environmental Policy Act [NEPA], 42 U.S.C. § 4321 et seq., and section 9 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 401. In Sierra Club v. Marsh, 872 F.2d 497 (1st Cir.1989) [Sierra Club III], the United States Court of Appeals for the First Circuit vacated an order of this court, see Sierra Club v. Marsh, 701 F.Supp. 886 (D.Me.1988), which had declined to enjoin the construction of a causeway to Sears Island and the resumption of harbor dredging in the area of the proposed terminal. On remand pursuant to the mandate of the United States Court of Appeals for the First Circuit, the court reconsiders plaintiffs’ motion for preliminary injunctive relief insofar as it is predicated on their NEPA claims. I. BACKGROUND Sierra Club v. Marsh, 701 F.Supp. 886 (D.Me.1988), employed the four-part test traditionally required in the First Circuit upon consideration of a request for preliminary injunctive relief: (1) would plaintiffs suffer irreparable harm if the injunction is not granted; (2) would the harm to the plaintiffs outweigh any harm that injunc-tive relief would cause the defendants; (3) have plaintiffs demonstrated a likelihood of success on the merits; and (4) would an injunction be in the public interest. See Sierra Club, 701 F.Supp. at 894 (quoting Planned Parenthood League v. Bellotti, 641 F.2d 1006, 1009 (1st Cir.1981). The court found that there had been no demonstration of irreparable harm likely to result from construction of the causeway or dredging of the harbor at the site of the proposed terminal, that the balance of harms favored the defendants and that the public interest would be better served by allowing causeway construction and harbor dredging to proceed pending a decision on the merits. The court further determined that, even if it were made to appear that the plaintiffs were likely to succeed on the merits of their NEPA claims, a likelihood of irreparable physical harm to the environment would have to be demonstrated in order to obtain preliminary injunctive relief. Sierra Club, 701 F.Supp. at 899. Since plaintiffs did not demonstrate that “removal of the causeway [was] either impracticable or that it would not restore the environmental status quo,” or that restoration of habitats destroyed by dredging would be impracticable, the court found that the plaintiffs had failed to demonstrate irreparable environmental harm in the absence of an injunction. 701 F.Supp. at 898. The court recognized that its decision did not give effect to Commonwealth of Massachusetts v. Watt, 716 F.2d 946 (1st Cir. 1983). See Sierra Club, 701 F.Supp. at 894-897. Watt had held that the harm at stake [from a NEPA violation] is a harm to the environment, but the harm consists of the added risk to the environment that takes place when governmental decisionmakers make up their minds without having before them an analysis (with prior public comment) of the likely effects of their decision upon the environment. Sierra Club III, at 500 (emphasis in original). Sierra Club III held that NEPA’s object is to minimize that risk, the risk of uninformed choice, a risk that arises in part from the practical fact that bureaucratic decisionmakers {when the law permits) are less likely to tear down a nearly completed project than a barely started project. In Watt we simply held that the district court should take account of the potentially irreparable nature of this decisionmaking risk to the environment when considering a request for preliminary injunction. Sierra Club III, at 500 (emphasis added). Relying on Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987), this court held that a violation of NEPA procedure, “without more, raises no presumption of irreparable injury, nor does it diminish the need to determine the likelihood of irreparable environmental harm in the absence of preliminary injunctive relief.” Sierra Club, 701 F.Supp. at 897. On appeal from this court’s decision in Sierra Club, 701 F.Supp. 886 (D.Me.1988), the First Circuit reaffirmed its holding in Watt: “[W]hen a decision to which NEPA obligations attach is made without the informed environmental consideration that NEPA requires, the harm that NEPA intends to prevent has been suffered.” Sierra Club III, at 500 (quoting Watt, 716 F.2d at 952) (emphasis added). A district court, when considering a request for a preliminary injunction, must realize the important fact of administrative life that we described in Watt: as time goes on, it will become ever more difficult to undo an improper decision (a decision that, in the presence of adequate environmental information, might have come out differently). The relevant agencies and the relevant interest groups (suppliers, workers, potential customers, local officials, neighborhoods) may become ever more committed to the action initially chosen. Id. at 503. The First Circuit cautioned that by recognizing “this harm and its potentially ‘irreparable’ nature” it was not creating a “special ‘presumption’ in favor of injunctions,” indeed the “balance of harms” could “point the other way” in a particular case. Id. at 503-04 (quoting Watt, 716 F.2d at 952 (emphasis in original)). The First Circuit distinguished Watt from Village of Gambell on the basis of certain differences between the two statutes being considered in those eases: “the kinds of ‘harms’ that are relevant, and that may be ‘irreparable,’ will be different according to each statute’s structure and purpose.” Sierra Club III, at 502 (citing Village of Gambell, 480 U.S. at 543 n. 9, 107 S.Ct. at 1403 n. 9; Watt, 716 F.2d at 952). Although “[b]oth NEPA and ANILCA are ‘procedural’ statutes in the sense that both set forth procedures that decisionmakers must follow before taking an action that might harm the environment (or ‘subsistence uses’),” Sierra Club III, at 502, the First Circuit noted that ANILCA contains substantive standards as well, id. at 502, whereas NEPA itself does not, id. at 502. Under ANILCA, “[sjhould an agency head choose a course of action that, for example, takes from subsistence uses more than the ‘minimal amount of public lands’ necessary for the alternative public purposes ..., ANILCA requires him to change the action.” Id. at 502. Whereas, although “NEPA demands that a decisionmaker consider all significant environmental impacts before choosing a course of action,” id. at 502, once the NEPA process has been followed NEPA itself imposes no constraints upon the agency’s power to permit the project notwithstanding its adverse environmental effects, id. at 502. This difference between NEPA and AN-ILCA is “critical for present purposes,” id. at 501, because “[i]nsofar as a procedural failure leads to an improper choice, a court, under ANILCA but not under NEPA, may require the decisionmaker to choose a new action; and this fact may make the ANILCA [procedural] failure ‘reparable harm,’ ” id. at 503 (emphasis in original). As agency decisionmakers may not be compelled, under NEPA itself, to choose the less environmentally injurious course of action, the First Circuit ruled that “[t]he difficulty of stopping a bureaucratic steam roller, once started, ... [is] a perfectly proper factor for a district court to take into account in assessing” a motion for preliminary injunctive relief. Id. at 504. In Sierra Club III, the First Circuit reiterated, see also Massachusetts v. Watt, 716 F.2d 946 (1st Cir.1983), that NEPA “seeks to create a particular bureaucratic decision-making process, ... whereby administrators make important decisions with an informed awareness of how the decision might significantly affect the environment,” Sierra Club III, at 497, and the court went on to say: “if any such decision is made without the information that NEPA seeks to put before the decisionmaker, the harm that NEPA seeks to prevent occurs,” id. (citing Watt, 716 F.2d at 952). Upon revisiting Watt, the First Circuit offered further explanation. [T]he harm at stake is a harm to the environment, but the harm consists of the added risk to the environment that takes place when governmental decision-makers make up their minds without having before them an analysis (with pri- or public comment) of the likely effects of their decision upon the environment. NEPA’s object is to minimize that risk, the risk of uninformed choice, a risk that arises in part from the practical fact that bureaucratic decisionmakers (when the law permits) are less likely to tear down a nearly completed project than a barely started project. In Watt we simply held that the district court should take account of the potentially irreparable nature of this decisionmaking risk to the environment when considering a request for preliminary injunction. Id. at 500-01 (emphasis in original). II. DISCUSSION The court views its mandate on remand as requiring reconsideration of preliminary injunctive relief in the light of the following constraints. A NEPA violation which deprives agency decisionmakers of an informed awareness of significant environmental consequences of the challenged action is deemed harmful to the environment, by virtue “of the added risk to the environment,” id. at 500-01 (emphasis in original), “that arises in part from the practical fact that bureaucratic decisionmakers (when the law permits) are less likely to tear down a nearly completed project than a barely started project,” id. (emphasis added). The district court is to “take account of the potentially irreparable nature of this deci-sionmaking risk to the environment when considering a request for preliminary injunction.” Id. (emphasis added). The court broaches the following specific inquiries: (i) Are plaintiffs likely to succeed on the merits of a NEPA claim? (ii) Did a NEPA violation deprive agency decisionmakers of information, analysis or comment necessary to an informed awareness of the environmental effects of their decision? (iii) Does any bureaucratic commitment resulting from an uninformed choice constitute irreparable harm? The ultimate harm NEPA seeks to prevent is the real environmental harm which may occur as a result of inadequate foresight and deliberation by agency decision-makers. Sierra Club III, at 504. First, plaintiffs must demonstrate a probable NEPA violation which led agency decision-makers to “make up their minds without having before them an analysis (with prior public comment) of the likely effects of their decision upon the environment.” Id. at 500. Accord Enos v. Marsh, 616 F.Supp. 32, 37 (D.C.Hawaii 1984) (“Although there may be a technical violation of procedural requirements, an injunction will not necessarily issue if the decision maker is otherwise fully informed as to the environmental consequences of the proposed action.”) Cf. Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017, 1023 (9th Cir.1980) (no harm resulted from failure to provide particular agency with copy of DEIS for comment, where result would be to lead Corps to “institute a study it has already completed and fully considered”). Second, since no presumption arises in favor of injunctive relief merely because plaintiffs demonstrate a probable NEPA violation, see Sierra Club III, at 503, and all traditional equitable standards remain applicable, see Village of Gambell, 480 U.S. at 545, 107 S.Ct. at 1404; Save the Yaak Committee v. Block, 840 F.2d 714, 722 (9th Cir.1988), plaintiffs must demonstrate a likelihood of irreparable harm if construction is not enjoined pending a decision on the merits, see Sierra Club III, at 504; Northern Cheyenne Tribe v. Hodel, 851 F.2d 1152, 1156-57 (9th Cir.1988) (upholding decision to suspend rather than void oil leases; on the ground that plaintiffs did not demonstrate that mere suspension could lead to bureaucratic commitment), either in the form of real harm to the environment or a risk of real harm to the environment resulting from a bureaucratic commitment to the challenged project predicated on an uninformed agency decision. Should it appear that plaintiffs are likely to prevail on the merits of a NEPA claim and that the requisite causal connection exists between the NEPA violation and a resulting bureaucratic bias in favor of the challenged project, the court is required to “take account of [the] harm,” Sierra Club III, at 504, which “inadequately informed decisionmaking,” id,., can pose to the environment, as well as “its potentially ‘irreparable’ nature,” id. “ ‘This is not to say that a likely NEPA violation automatically calls for an injunction; the balance of harms may point the other way.’ ” Id. at 504 (quoting Watt, 716 F.2d at 952) (emphasis in original). Employing “ ‘traditional’ equity standards,” id. at 503, the court must balance any irreparable harm that an injunction would cause the defendants against any irreparable harm causally connected to any uninformed agency decision flowing from a NEPA violation. Accordingly, the court first determines whether plaintiffs have established a likelihood of success on their NEPA claims. Next, the court inquires whether any NEPA violation appears to have led to inadequate agency awareness or consideration of any significant environmental consequence of permitting the project, and, if so, whether there is a clear risk of bureaucratic commitment to the project absent an injunction. The court then must identify any irreparable harm to the defendants should the project be enjoined and compare that irreparable harm with any irreparable harm causally connected to a NEPA violation. Finally, the court must consider whether the public interest will be better served by granting or withholding preliminary injunctive relief. A. Likelihood of Success on Merits of NEPA Claims NEPA requires federal agencies to prepare a “ ‘detailed statement ... on the environmental impact’ of any proposed major federal action ‘significantly affecting the environment.’ ” Sierra Club v. Marsh, 769 F.2d 868, 870 (1st Cir.1985) [Sierra Club I]. The environmental impact statement [EIS] required by NEPA is an “action-forcing” device intended to serve at least three purposes: First, it permits the court to ascertain whether the agency has made a good faith effort to take into account the values NEPA seeks to safeguard. To that end it must “explicate fully its course of inquiry, its analysis and its reasoning.” Second, it serves as an environmental full disclosure law, providing information which Congress thought the public should have concerning the particular environmental costs involved in a project. [Therefore,] [i]t cannot be composed of statements “too vague, too general and too conclusory.” ... [Third,] and perhaps most substantively, the requirement of a detailed statement helps insure the integrity of the process of decision by precluding stubborn problems or serious criticism from being swept under the rug. A conclusory statement “unsupported by empirical or experimental data, scientific authorities, or explanatory information of any kind” not only fails to crystallize issues, but “affords no basis for a comparison of the problems involved with the proposed project and the difficulties involved in the alternatives.” ... Moreover, where comments from responsible experts or sister agencies disclose new or conflicting data or opinions that cause concern that the agency may not have fully evaluated the project and its alternatives, these comments may not simply be ignored. There must be good faith, reasoned analysis in response. Sierra Club, 701 F.Supp. at 913-14 (quoting Silva v. Lynn, 482 F.2d 1282, 1284 (1st Cir.1973)). Sierra Club I held that the reasonably foreseeable secondary impacts of a dry cargo terminal on Sears Island, together with the environmental effects of terminal construction and operation, were significant enough to necessitate preparation of an EIS. 769 F.2d at 881-82. Plaintiffs contend that the final EIS [FEIS] is inadequate because defendants failed to comply with NEPA and the companion regulations governing EIS content and preparation. Plaintiffs maintain that these NEPA violations, combined with defendants’ “track record,” demonstrate that the EIS represents a mere rationalization of a decision made long ago, rather than the kind of “good faith consideration” of environmental consequences mandated by NEPA. [Plaintiffs] allege[ ] that FHWA and the Corps failed to comply with EIS procedures prescribed by NEPA and its companion regulations. Plaintiffs contend that significant additional information regarding the environmental impacts of the Sears Island project — including information that a six-berth facility would require development of 124 acres of upland, rather than the 50 acres stated in the FEIS — was received and relied on subsequent to FHWA approval of the FEIS. Plaintiffs assert that this new information necessitated preparation of a supplemental EIS. Plaintiffs further allege that FHWA violated NEPA by: (1) responding inadequately to comments on the DEIS; (2) failing to make independent evaluation of the EIS, which was prepared by MDOT’s consultants; (3) failing to obtain “conflict of interest” disclosure statements for certain MDOT contractors involved in preparation of the EIS; (4) failing to consider alternative means of providing employment in the Searsport area; (5) failing to give proper consideration to secondary impacts of the project; (6) improperly incorporating key documents by reference; and (7) failing to consider construction of a two-berth facility as an alternative. The Corps is charged with noncompliance with NEPA by: (1) adopting an FEIS prepared by MDOT; (2) failing to make an independent evaluation of the EIS and of the information submitted by MDOT; (3) basing its permit decision on significant new information not part of the EIS; and (4) relying on studies and analyses conducted after the FEIS had been prepared. Sierra Club, 701 F.Supp. at 893-94. 1. Use of Contractors NEPA’s procedures are designed to protect the integrity of the decisionmaking process by ensuring that “stubborn problems or serious criticism [are not] swept under the rug.” Silva, 482 F.2d at 1285. To that end, the regulations governing the selection and use of contractors involved in EIS preparation require that an EIS “shall be prepared directly by or by a contractor selected by the lead agency or where appropriate under § 1501.6(b), a cooperating agency.” 40 C.F.R. § 1506.5(c) (emphasis added). The selecting agency must obtain from the outside contractor “a disclosure statement ... specifying that [the contractor has] no financial or other interest in the outcome of the project.” Id. The intent of these regulations is “to minimize the conflict of interest inherent in the situation of those outside the government coming to the government for money, leases or permits while attempting impartially to analyze the environmental consequences of their getting it.” Sierra Club v. Sigler, 695 F.2d 957, 963 n. 3 (5th Cir.1983) (quoting 43 Fed.Reg. 55, 987 (1978)). See 40 C.F.R. § 1506.5(c) (“It is the intent of these regulations that the contractor be chosen ... to avoid any conflict of interest.”) In the interest of minimizing bias in EIS preparation, the terms “financial or other interest” are to be “broadly [interpreted] to cover any known benefits other than general enhancement of professional reputation.” Forty Most Asked Questions Concerning CEQ’s National Environmental Policy Act Regulation, 46 Fed.Reg. 18026, 18031 (1981) (CEQ Forty Questions). Firms having an interest in the outcome of the project should be disqualified from participation in the EIS process. 46 Fed.Reg. at 18031. Firms “involved in developing initial data and plans for the project” need not be disqualified, but a disclosure statement in the draft EIS [DEIS] “should clearly state the scope and extent of the firm’s prior involvement to expose any potential conflicts of interest that may exist.” Id. As further protection against bias in EIS preparation, regulations require that the EIS contain a list of the names and qualifications of those “primarily responsible for preparing the [EIS] or significant background papers.” 40 C.F.R. § 1502.17. Although studies and reports prepared by Normandeau Associates, Hunter-Ballew Associates [HBA] and Booz-Allen and Hamilton [Booz-Allen] were listed in the “Literature Cited” portion of the FEIS, id. at 12-2, 12-6, 12-10, 12-11, plaintiffs fault the FEIS Table of Preparers for listing only Normandeau Associates and Economic Research Associates [ERA] as FEIS “preparers,” see FEIS, Vol. I, at 9-2. Plaintiffs further argue that Normandeau Associates, HBA and Olko Engineering should have been excluded from the EIS process altogether, because each had an interest in the Sears Island project decision. Alternatively, plaintiffs argue that, at a minimum, HBA, Olko Engineering and Booz-Allen should have been listed in the table of preparers. a. Table of Preparers The regulation governing inclusion in the EIS table of preparers states that the EIS shall list the names and qualifications of the “persons who were primarily responsible for preparing the [EIS] or significant background papers." 40 C.F.R. § 1502.17 (emphasis added). Defendants justify exclusion of HBA, Olko Engineering and Booz-Allen from the table of preparers on the ground that no employee of any of these firms was involved in drafting or editing the EIS. Defendants have not addressed the significance of the studies prepared by HBA, Olko Engineering and Booz-Allen; the court does so now. i. Booz-Allen The record demonstrates that Booz-Allen prepared five reports, including a study of the effects of the “no action alternative” on cargo volumes at Searsport and other Maine ports, FEIS, Vol. I, at X, 12-2, and a study on projected cargo handling costs at the Mack Point alternative site, id. At least one of these reports, which projects future shipping volumes at a new Maine dry cargo terminal, and its likely benefits, was prepared with the understanding that it would be incorporated directly into the EIS. See State of Maine, Contract For Special Services, at 5 (Jan. 2, 1987), Plaintiffs’ Supplemental Appendix, at 78-82. The Corps relied in part on Booz-Allen’s reports in finding that the Mack Point alternative was impracticable. See Corps Record of Decision [Corps ROD], at 19-22 (Corps Record, Vol. Ill, at 58) (summarizing Booz-Allen’s findings that the Mack Point alternative was impracticable, but also accepting “the professional judgment of the State, FHwA and their consultants”). The FHwA relied on Booz-Allen’s assessment that Mack Point would be incapable of accommodating a dry cargo facility large enough to handle projected cargo volumes. See FHwA Record, Vol. Ill, at 40 (FHwA ROD). The federal agencies’ reliance on these Booz-Allen reports is a sufficient basis upon which to conclude that those reports are “significant background papers” and that Booz-Allen should have been listed in section 9 of the EIS. See 40 C.F.R. § 1502.17. ii. HBA (Olko Engineering) HBA prepared at least four reports containing designs, plans and estimates relating to cargo terminal development at Mack Point, Long Cove, and Sears Island. See FEIS, Vol. I, at 12-6; Plaintiffs’ Supplemental Appendix, at 52-55, 61-65, 77. Olko Engineering was the subcontractor charged with preparing the marine structure designs for at least two of these HBA reports. See Plaintiffs’ Supplemental Appendix, at 52-55, 61-66. MDOT also engaged HBA to coordinate the review team assembled to respond to comments on the DEIS. See Plaintiffs’ Appendix, at 167-191. In that role HBA summarized the key points of contention surrounding the DEIS, id. at 175, established a work flow diagram, id. at 168, and moderated meetings “to keep the discussion properly directed,” id. MDOT also referred to HBA and Olko Engineering two of the twenty questions raised by the Corps at the December 4, 1987 meeting on the FEIS, and MDOT directly incorporated their responses as its own. See Corps Record, Vol. II, at 27. The court can find no guidance, either in the regulations, case-law, or explanatory materials published by the CEQ, as to the meaning of the term “preparer.” The regulation governing the table of preparers does not define the term “preparer,” but merely states that “[n]ormally the list will not exceed two pages.” 40 C.F.R. § 1502.17. Absent guidance, and unless inconsistent with the regulation itself, the term “preparer,” as used in reference to a written document such as an EIS, should be given its usual meaning; that is, a “preparer” is one who puts in written form or draws up a document, see Webster’s Third New International Dictionary (Unabridged), at p. 1790 (1976). Clearly, not every participant in the EIS process need be listed as a preparer. An important distinction between the preparer of a document, and someone who participates in gathering information used in preparing it, is the discretion possessed by the preparer, to accept, reject or modify the information submitted for consideration by subordinate participants in the EIS process. Mere coordination of a DEIS response team, for instance (or mere responsibility for drafting proposed responses to EIS comments), absent evidence that the coordinating consultant (or scrivener) has been given decisionmaking authority by the lead agency to determine EIS content, as distinguished from the responsibility to inform and make recommendations to the agency, would not make the consultant a “preparer.” The record does not indicate that either HBA or Olko Engineering was “primarily responsible for preparing the environmental impact statement_” 40 C.F.R. § 1502.17. Nevertheless, since there is evidence that HBA and/or Olko Engineering were primarily responsible for preparing significant background papers, those firms should have been included in the table of preparers. See 40 C.F.R. § 1502.17. b. Selection of EIS Preparers The regulation governing EIS preparation requires that “any environmental impact statement prepared pursuant to the requirements of NEPA shall be prepared directly by or by a contractor selected by the lead agency or where appropriate under § 1501.6(b), a cooperating agency.” 40 C.F.R. § 1506.5(c) (emphasis added). Plaintiffs argue that the FHwA violated NEPA regulations by not directly selecting the outside consultants which prepared the EIS. The record reveals, however, that even though Booz-Allen, HBA and Olko Engineering may have submitted significant background papers, thus warranting their inclusion in the table of preparers, see section II.A.l.a. supra, none of these consultants had sufficient discretionary authority to be considered preparers of the EIS, id. Because the regulation requires only that the EIS be prepared by consultants selected by the lead agency, it was not a violation of NEPA for MDOT to contract directly (without the approval of FHwA) with HBA, Olko Engineering and Booz-Allen to prepare significant background reports. The record clearly demonstrates direct involvement by the FHwA in the initial decision to contract with Normandeau Associates for preparation of the EIS, see FHwA Record, Vol. I, at 2 (decision to hire Nor-mandeau Associates made at initial meeting attended by MDOT, FHwA, Corps and Coast Guard), and that the FHwA approved ERA as a subcontractor, Plaintiffs’ Supplemental Appendix, at 71-75. Therefore, the claim that the FHwA violated NEPA by failing to approve the outside consultants selected to prepare the EIS must fail. See Plaintiffs’ Supplemental Appendix, at 71-75 (contract between MDOT and Normandeau Associates, signed by approving FHwA official). c. Conflicts of Interest The plaintiffs argue that the FHwA violated NEPA regulations by not obtaining the required conflict of interest disclosure statements from consultants selected to prepare the EIS. Plaintiffs further maintain that Olko Engineering, HBA and Nor-mandeau Associates should have been disqualified from participation in the EIS process, due to alleged bias developed while these consultants performed services relating to the Sears Island project prior to the decision in Sierra Club I, which vacated the original federal permits for the project and directed the preparation of an EIS. The defendants respond, first, that the applicable regulation, 40 C.F.R. § 1506.5(c), applies only to consultants which “prepared” the EIS, not to those which merely provided background material for an EIS that MDOT had an active role in preparing. Therefore, defendants urge, HBA and Olko Engineering were not required to file conflict of interest disclosure statements. FHwA Internal Memorandum (Affidavit of William Richardson [Richardson Aff.], Attachment A). Next, defendants maintain that the FHwA reasonably interprets this regulation to require a conflict of interest disclosure statement only in those “highly unique cases in which a contractor independently prepares an EIS for the State which then adopts the EIS as its own.” Richardson Aff., Attachment A (emphasis in original). Finally, defendants argue that neither Normandeau Associates nor ERA, the only consultants engaged to prepare the EIS, actually had any interest in the proposed project, financial or otherwise, which required their disqualification as EIS preparers. i. Conflict of Interest Disclosure Statements The regulation governing conflicts of interest in the EIS process states, in pertinent part: Any [EIS] prepared pursuant to ... NEPA shall be prepared ... by a contractor ... chosen ... to avoid any conflict of interest. Contractors shall execute a disclosure statement prepared by the lead agency, ... specifying that they have no financial or other interest in the outcome of the project. 40 C.F.R. § 1506.5(c). Considering the plain language of section 1506.5(c), and the CEQ’s interpretation of it, see CEQ Forty Questions, 46 Fed.Reg. at 18031 (“a consulting firm preparing an EIS must execute a disclosure statement_”), the FHwA reasonably interprets section 1506.5(c) as requiring that a conflict of interest disclosure statement be filed only by a contractor engaged to prepare the EIS, not by a contractor engaged to prepare significant background papers. Therefore, the failure to require HBA, Olko Engineering and/or Booz-Allen to file conflict of interest disclosure statements was not a violation of NEPA. On the other hand, defendants’ argument that Normandeau Associates and ERA were excused from supplying conflict of interest disclosure statements notwithstanding their contractual agreements to prepare the EIS does not flow ineluctably from the FHwA Memorandum interpreting section 1506.5(c). The FHwA Memorandum states in pertinent part: The FHWA recognizes that in the preparation of an EIS a State works closely with consultants who might later have an interest in performing all or part of the final design on a selected alternative. We do not believe subsection 1506.5(c) was promulgated with the intent to upset the traditional Federal/State relationship. Rather, we interpret this section to apply only to those highly unique cases in which a contractor independently prepares an EIS for the State which then adopts the EIS as its own. When a contractor (and/or subcontractor), in the role of a consultant, prepares studies which the State incorporates into an EIS which the State has taken an active role in preparing, it is not necessary for that contractor to execute the disclosure statement required by subsection 1506.5(c). Our experience confirms that State agencies act in good faith in choosing consultants for environmental studies and that the analysis contained in the EIS is the agency’s own, culled from a variety of studies, public input, and other assistance which it has received during the preparation of the EIS. Richardson Aff., Attachment A (emphasis in original). Normandeau Associates and ERA prepared studies which MDOT incorporated into the EIS, but Normandeau Associates also authored the EIS sections on marine impacts, water quality, air quality, noise, marine geology and sediments, and ERA authored sections concerning socioeconomic impacts, including the “purpose and need” section. See FEIS, Vol. I, at 9-2 to 9-5. It appears that the only sections of the EIS which were written by MDOT were those dealing with aesthetics and visual resources. See id. at 9-5. The record indicates also that Normandeau Associates, the consultant with which MDOT contracted for the preparation of the EIS, see Plaintiffs’ Supplemental Appendix, at 71-75, and ERA, Normandeau’s subcontractor, see id., had consulted, and exchanged views, with MDOT and various federal agencies concerning the EIS. See, e.g., FHwA Record, Vol. II, at 12 (notes of meeting attended by MDOT, FHwA, Normandeau Associates, ERA, Corps, FWS and various state agencies); id. at 11 (memorandum from Frank Mahady of ERA to Bill Barry of Norman-deau Associates discussing consent decisions). The conflict of interest regulation is intended to preserve the “objectivity and integrity of the NEPA process.” CEQ Forty Questions, 46 Fed.Reg., at 18031. The CEQ states that “a consulting firm preparing an EIS must execute a disclosure statement.” Id. (emphasis added). MDOT, with FHwA approval, contracted with Norman-deau Associates to “prepare an Environmental Impact Statement (EIS) for the Department’s Sears Island Marine Dry Cargo Terminal and Access Road Projects.” Plaintiffs’ Supplemental Appendix, at 72, 74. Normandeau Associates and ERA authored many important sections of the EIS and made recommendations concerning other EIS content. Given that the purpose of the regulation is to ensure the integrity of the NEPA process, it is clear that conflict of interest disclosure statements should have been obtained from Normandeau Associates and ERA. ii. Contractor Disqualification Although the FHwA erred in not obtaining conflict of interest statements from Normandeau Associates and/or ERA, that is not to say that plaintiffs have demonstrated that any consultant, whether engaged to prepare the EIS or significant background papers, should have been disqualified from participation in the EIS process. The regulations governing conflicts of interest state that consultants hired as EIS preparers should be chosen to “avoid any conflict of interest.” 40 C.F.R. § 1506.5(c). The CEQ defines “conflict of interest” Broadly to cover any known benefits [financial or otherwise] other than general enhancement of professional reputation. This includes any financial benefit such as a promise of future construction or design work on the project, as well as indirect benefits the consultant is aware of (e.g., if the project would aid proposals sponsored by the firm’s other clients). For example, completion of a highway project may encourage construction of a shopping center or industrial park from which the consultant stands to benefit. 46 Fed.Reg. at 18031. “If a consulting firm has a conflict of interest it should be disqualified from preparing the EIS, to preserve the objectivity and integrity of the NEPA process.” Id. (emphasis added). Plaintiffs argue that project involvement on the part of HBA and Olko Engineering disqualified those firms from any participation in the Sears Island EIS process. The applicable regulation and its CEQ interpretation are concerned with consultants engaged to prepare an EIS. See 40 C.F.R. § 1506.5(c) (“[An EIS] ... shall be prepared ... by a contractor ... chosen ... to avoid any conflict of interest.”); CEQ Forty Questions, 46 Fed.Reg. at 18031 (discussing when consultants should be disqualified from “preparing the EIS ... ”) (emphasis added). The regulation states specifically that “[n]othing in this [regulation] is intended to prohibit any agency from requesting any person to submit information to it or prohibit any person from submitting information to any agency.” 40 C.F.R. § 1506.5(c). Therefore, although it appears that HBA and Olko Engineering were disqualified from preparing the EIS, these consultants were not disqualified from submitting information for use by the EIS preparers. The plaintiffs assert two grounds in support of their contention that Norman-deau Associates should have been disqualified as an EIS preparer. First, Norman-deau Associates was involved with the proposed Sears Island project prior to the Sierra Club I decision mandating that an EIS be prepared. Second, while preparing the EIS, Normandeau Associates assisted MDOT with its application for the Corps permit. Nevertheless, plaintiffs have failed to demonstrate, whether by virtue of prior involvement with the Sears Island project or by assisting with the preparation of the Corps permit application, that Nor-mandeau Associates had any interest in the outcome of the project. In the circumstance where a consultant selected to prepare an EIS has been “involved in developing initial data and plans for the project, but does not have any financial or other interest in the outcome of the decision ..CEQ Forty Questions, 46 Fed.Reg. 18031, the consultant need not be disqualified from participation in the project. The CEQ counsels that the DEIS “should clearly state the scope and extent of the firm’s prior involvement to expose any potential conflicts of interest that may exist.” Id. But absent an actual conflict of interest the statute and regulations are satisfied by a conflict of interest disclosure statement. The CEQ Forty Questions do not impose requirements beyond the NEPA regulations. See CEQ Forty Questions, 46 Fed.Reg. 18026 (“These answers, of course, do not impose any additional requirements beyond those of the NEPA regulations.”). Therefore, failure to disclose, in the DEIS, Normandeau Associates’ prior involvement with the Sears Island project did not constitute a separate NEPA violation upon which plaintiffs are likely to prevail. 2. Independent Evaluation Plaintiffs claim that neither the FHwA nor the Corps independently evaluated the FEIS prepared by MDOT and its consultants. The FHwA served as the lead federal agency for EIS preparation, with responsibility for its scope and content. See 40 C.F.R. § 1506.5. As a cooperating agency, prior to adopting the FHwA FEIS the Corps bore responsibility for independent review of the FEIS and for ensuring that all Corps comments and suggestions were accommodated. See 40 C.F.R. § 1506.3(c). a. FHwA Evaluation NEPA allows a lead agency to delegate responsibility for EIS preparation to a state agency only if: (i) the State agency or official has statewide jurisdiction and has the responsibility for such action, (ii) the responsible Federal official furnishes guidance and participates in such preparation, [and] (iii) the responsible Federal official independently evaluates such statement prior to its approval and adoption. 42 U.S.C. § 4332(2)(c). The requirement of independent evaluation is “intended to assure that the Federal agency consider, critically review and where appropriate, change and supplement” an EIS prepared by a state agency. H.R.Rep. No. 144, 94th Cong., 1st Sess. 5 (1975) U.S.Code Cong. & Admin.News 1975, pp. 859, 862. Plaintiffs argue that the FHwA failed to undertake its own thorough evaluation prior to approval of the FEIS. Plaintiffs specifically charge that the FHwA failed to make an independent verification of information submitted by MDOT and its consultants. The NEPA regulation governing lead agency responsibility for EIS review states: (a) Information. If an agency requires an applicant to submit environmental information for possible use by the agency in preparing an environmental impact statement, then the agency should assist the applicant by outlining the types of information required. The agency shall independently evaluate the information submitted and shall be responsible for its accuracy.... It is the intent of this paragraph that acceptable work not be redone, but that it be verified by the agency. (c) ... If the document is prepared by contract, the responsible Federal official shall furnish guidance and participate in the preparation and shall independently evaluate the statement prior to its approval and take responsibility for its scope and contents. Nothing in this section is intended to prohibit any agency from requesting any person to submit information to it or to prohibit any person from submitting information to any agency. 40 C.F.R. § 1506.5(a), (c) (emphasis added). As plaintiffs recognize, the FHwA delegated responsibility for EIS preparation to MDOT, which contracted with Normandeau Associates for EIS preparation with the approval of the FHwA. The NEPA regulation requires independent agency verification of all information supplied by an applicant if the agency relies on the information in preparing an EIS. Where, as was the case here, the EIS is prepared by an outside consultant, the federal agency must furnish guidance, participate in its preparation and “independently evaluate the [EIS] statement.” 40 C.F.R. § 1506.5(c); see 23 C.F.R. § 771.109(c)(1). In its supplemental memorandum denying plaintiffs’ motion for a preliminary injunction, this court found that FHwA personnel did participate in the preparation of the EIS. Sierra Club, 701 F.Supp. at 918 (emphasis added). The court now considers whether the FHwA independently evaluated the EIS prepared by MDOT and Normandeau Associates. The record demonstrates that the FHwA did more than provide mere formal review of the EIS. See Fayetteville Area Chamber of Commerce v. Volpe, 515 F.2d 1021, 1025 (4th Cir.) (suggesting that a review limited to the form of an EIS is inadequate under NEPA), cert. denied, 423 U.S. 912, 96 S.Ct. 216, 46 L.Ed.2d 140 (1975). William Richardson, Division Administrator of FHwA, “studied” the reports and analyses of MDOT and its consultants. Richardson Aff., at 111112. Steve Ronning, a FHwA environmental policy specialist in Washington, D.C., and Bruce Mattson, a FHwA regional environmental engineer, also considered background reports. Id.; see also id. at 1122 (Richardson, Ronning and Mattson discussed the report upon which the EIS section on secondary impacts was based). Richardson reviewed comments on the “scoping” document, id. at 1117; accord FHwA Record, Vol. I, at 30, 33, 35, and on the DEIS, Richardson Aff. at 1117; accord FHwA Record, Vol. I, at 25. Based on these comments, Richardson raised questions concerning the project’s impact on seals, and as a result further studies were conducted. Id. at If 18; FHwA Record, Vol. II, at 3,15. Both the FHwA regional and national offices read the DEIS, and the national office prepared several substantive comments. See FHwA Record, Vol. II, at 46 (containing eight comments, including: “The [wetlands] discussion needs to demonstrate that there are no practicable alternatives to avoid the wetlands and that all practicable measures to minimize harm will be accomplished.”); id. at 41 (“minor” comments prepared by regional office, mainly pointing up procedural errors and recommending style changes, e.g. “Figures 3.2-2 and 3.2-9 need north arrows.”). FHwA personnel met with interested agencies and toured Kidder Point, FHwA Record, Vol. I, at 29, and Mack Point, id., Vol. II, at 47, 48, 49. FHwA personnel attended a meeting on the practicability of the Mack Point site during which “a lengthy philosophical discussion ensued as to the findings of the TBS report.” FHwA Record, Vol. Ill, at 15 (May 14, 1987, File Memorandum prepared by Richardson). See id. at 17 (June 1, 1987, Memorandum prepared by David Ober of MDOT detailing same meeting). Finally, following issuance of the FHwA ROD Richardson reviewed responses to twenty Corps questions about the FEIS, Richardson Aff., at 1142; accord FHwA Record, Vol. Ill, at 36, and considered TBS materials generated for the Corps review process. Richardson concluded “that [the TBS motion was] a restatement of previously presented data and arguments ... [not] even remotely sufficient to trigger the need for a supplemental EIS.” Richardson Aff., at 1144. Whether an agency has “independently evaluated an EIS is a question of fact, to be determined on a case-by-case basis.” Citizens for Balanced Environment & Transportation, Inc. v. Secretary of Transportation, 515 F.Supp. 151, 158 (D.Conn.), aff'd, 650 F.2d 455 (2d Cir.1981). The record in the present case demonstrates that the FHwA did much more than reflexively rubber-stamp the EIS prepared by MDOT and Normandeau Associates. The EIS evaluation by the FHwA met or exceeded the levels of independent evaluation found sufficient in other cases. See, e.g., Essex County Preservation Ass’n v. Campbell, 536 F.2d 956 (1st Cir.1976) (agency approved award of contract, reviewed preliminary DEIS, held meetings with applicant preparer); Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, 531 F.2d 637 (2d Cir.1976) (agency maintained frequent contact with state officials, took field trips, circulated EIS to interdisciplinary task force); Lange v. Brinegar, 625 F.2d 812 (9th Cir.1980) (agency contributed to DEIS through weekly meetings and phone calls, made field trips, reviewed EIS at regional and national levels); Fayetteville Area Chamber of Commerce, 515 F.2d at 1025 (federal agency was involved with DEIS, undertook field inspections, made recommendations as to content, and attended meeting with state). Plaintiffs have not demonstrated a likelihood of success on the merits of their NEPA claim that the FHwA failed to make an independent evaluation of the FEIS. b. Corps Review The plaintiffs charge that the Corps failed to conduct an independent review and evaluation of the FHwA FEIS and the information submitted by MDOT. The NEPA regulation governing cooperating agency involvement in the NEPA process states: A cooperating agency may adopt without recirculating the environmental impact statement of a lead agency when, after an independent review of the statement, the cooperating agency concludes that its comments and suggestions have been satisfied. 40 C.F.R. § 1506.3(c) (emphasis added). Corps personnel were involved in the EIS process from its inception. See FHwA Record, Vol. I, at 2 (notes of meeting to discuss EIS preparation, attended by Corps, FHwA, Coast Guard, MDOT). The Corps attended the “scoping” meeting and provided comments. See Corps Record, Vol. IV, at 7, 11. Several Corps representatives reviewed the DEIS with a view to its “form and substance,” and the Corps reviewed and analyzed comments received during the DEIS comment process and at the public hearing. See Affidavit of William Lawless, at II23 (Lawless Aff.) (listing six other Corps reviewers, including members of the impacts analysis branch). The Corps provided MDOT with 11 general and 43 specific comments on the DEIS. See FEIS, Vol. II, at F-4 (including the following comments: DEIS does not demonstrate that construction of a dry cargo terminal is economically feasible; visual impacts should be quantified; and reasonable alternatives should be defined and fully considered). The Corps Impacts Analysis Branch reviewed the FEIS. Lawless Aff., at ¶ 26; Corps Record, Vol. V, at 22-24. In addition to reviewing EIS documents, the Corps attended several meetings held to consider EIS information and conclusions, reviewed significant background papers upon which the EIS relies, see Lawless Aff. at II28, and considered TBS critiques of certain FEIS assumptions, id.; see Corps Record, Vol. II, at 13. Additionally, the Corps asked MDOT for further clarification of the FEIS in the form of the twenty questions generated by Corps analysis of the FEIS and comments. See Corps Record, Yol. Ill, at 82. The Corps ROD was issued only after Corps review of the MDOT responses to the twenty questions, which Lawless considered to be an “expansion] upon previously submitted information ... [but] which did not raise any new issues or present new information” requiring a supplemental EIS. Lawless Aff., at 1133. Plaintiffs have not shown that the Corps failed to provide independent review of the FEIS. 3. Secondary Impacts The plaintiffs claim that the FEIS analysis of secondary impacts is inadequate because it is predicated on the erroneous assumption that only “light-dry” industries are reasonably foreseeable tenants of the industrial park and its environs. Plaintiffs argue that “heavy” industrial development is reasonably foreseeable and that the EIS is fundamentally flawed because it assumes that only those industries which would have no significant effects on air or water quality are reasonably foreseeable industrial tenants. NEPA regulations require that the EIS discuss the direct and indirect (or secondary) effects of the proposed project. See 40 C.F.R. § 1502.16. Section 1508.8 defines the “indirect effects” to be discussed in the EIS: “Effects” include: (b) Indirect 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 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. Effects and impacts as used in these regulations are synonymous. Effects includes ecological (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative. Effects may also include those resulting from actions which may have both beneficial and detrimental effects, even if on balance the agency believes that the effect will be beneficial. 40 C.F.R. § 1508.8. In Sierra Club I the First Circuit rejected the conclusion arrived at in the Corps EA (“because the secondary development being considered is ‘light dry industrial,’ ‘there should be no significant air or water quality impacts from this type of industrial operation_’ ”) as unsupported and unex-plicated. 769 F.2d at 881 (quoting Corps EA). The First Circuit discussed two studies that were available at the time the Corps EA was prepared: a “35-page ‘Land Use Plan/Industrial Marketing Study’ prepared for the owner of [the remainder of Sears Island] and the town’s 50-page ‘Municipal Response Plan for the Industrial Development of Sears Island’ ” [Mallar Report], which provided “detailed descriptions of likely further development [on Sears Island].” Id. at 879. Although it acknowledged that actual future development might not follow the “precise course” suggested in the documents, the First Circuit found these documents “detailed enough for an EIS to describe the type of development likely to occur, even if it [was] pointless to analyze precise details.” Id. (emphasis in original). The court of appeals concluded that an EIS was necessary because the Corps’ unsupported conclusions concerning secondary development demonstrated a “failure to consider adequately the fact that building a port and causeway may lead to further industrial development of Sears Island, and that further development will significantly affect the environment.” Id. at 877. The FEIS secondary impact analysis devotes 47 pages to a discussion of the proposed industrial park as a secondary project impact. FEIS, Yol. I, at 4-108 to 4-154. The secondary impact analysis is based on assumptions about the scale of the development, the phasing of the development, the commuting distance of the industrial employees, and the types of industry expected to locate in the industrial part (sic). The four industry types assertedly targeted for the proposed industrial park adjacent to the port terminal are: fabricated metal products; nonelectrical machinery and equipment; electrical and electronic machinery and equipment; and transportation equipment. FEIS, Vol. I, at 4-109, 4-130. The FEIS environmental analysis is predicated on the assumption that “these industries would not be expected to have large steam demands; combustion of fuels would be primarily for space heating, and that the “industries targeted would ... [not] have major water use and discharge requirements.” FEIS, Vol. I, at 4-117, 4-120. Sierra Club, 701 F.Supp. at 918. The assumptions underlying the FEIS secondary impact analysis are based on large part on information contained in the Mallar Report. See FEIS, Vol. I, at 4-108, 4-109, 4-110, 4-117, 4-120 (assumptions concerning scale of development, commuting distance of employees, types of industries and likelihood of significant air and/or water impacts, based on Mallar Report); Richardson Aff. at ¶ 22. The Mallar Report in turn is grounded in the assumption that fabricated metal products, non-electrical machinery and equipment, electrical and electronic machinery and transportation equipment would “ultimately become the primary tenants of the [industrial] park.” Mallar Report, at 4 (Corps Record, Vol. E4, at 7). The Mallar Report identified these target industries on the strength of the “Land Use Plan/Industrial Marketing Study” prepared for Bangor Investment Company [BIC], the owner of the remainder of Sears Island, in which [a] wide variety of national growth industries were ranked on the basis of compatibility with a location such as Searsport, potential use of port related transportation, growth rate in employment in the industry, the stability of the industry, wage levels, minimum environmental impacts, and use of the area labor force and of local products and services. Id. at 3. On the basis of the rankings assigned in the BIC marketing study, its authors concluded that machinery and equipment fabricators and assemblers “could best use the opportunities offered by Sears Island, the cargo port, and the surrounding area and in turn offer the most benefit to the Searsport area.” Id. The Mallar Report considered only the four targeted industries because “[t]hose directly involved with the [industrial] park [chose] those four groups as their primary focus for marketing efforts.” Id. The court specifically directed the parties to address “in detail the adequacy of the bases for all of the assumptions underlying the secondary impact analysis of the EIS” and “whether or not the agency decision to evaluate the environmental impact of only the four target industries in the Sears Island industrial park was ‘arbitrary or capricious.’ ” Sierra Club, 701 F.Supp. at 918, 919. Instead, the parties focus solely on whether the decision to discuss only the impacts expected from the four targeted industries was arbitrary and capricious. Defendants correctly point out that NEPA merely requires analysis of secondary impacts which are “reasonably foreseeable” as a result of “the [proposed] action,” see 40 C.F.R. § 1508.8, and the defendants insist that it was reasonable to conclude that only the four industries targeted in the Mallar Report merited analysis under the NEPA regulation. See id. Defendants argue that the Mallar Report provided a reasonable and logical point of departure between the infinite number of industries that might possibly benefit in some measure from locating near a modern cargo terminal, and those which could be described with sufficient specificity to make their consideration useful. Defendants contend that it was not arbitrary or capricious to exclude from EIS analysis past proposals for Sears Island industrial development, i.e., those which preceded the proposal to develop a marine dry cargo terminal on Sears Island [prepro-ject proposals], because those preproject proposals could not be considered as having been caused by the cargo port. See Supplemental Memorandum of Law and Memorandum in Support of [MDOT’s] Motion for Summary Judgment [MDOT Supplemental Memorandum], at 115 (“FHwA considered [preproject proposals] but concluded that it ‘simply cannot agree with the argument that somehow those projects could be induced by or attributable to the proposed action,’ as their cost would dwarf the cost of the proposed project and such development would proceed independently of the proposed project.”) At a February 12, 1986 meeting held to consider the DEIS outline, the “issue of Secondary Impacts was discussed in detail.” FHwA, Vol. II, at 13 (FHwA Field Trip Report completed by Bruce Mattson). It was agreed that the secondary impact analysis would be confined to those impacts which were “made possible by the action and not possible without it.” Although the court does not doubt that the availability of a modern marine dry cargo terminal, with rail and highway access, may be a material consideration in the selection of a site for a power plant or an aluminum smelter, the court may not substitute its own judgment for that of the agency. See Bowman Transportation, Inc. v. Arkansas Best-Freight Systems, 419 U.S. 281, 285, 95 S.Ct. 438, 441, 42 L.Ed.2d 447 (1974) (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 413, 91 S.Ct. 814, 822, 28 L.Ed.2d 136 (1971)). As long as the agency articulates a rational connection between “the facts found and the choice made,” the agency decision will be upheld. Id. (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 246, 9 L.Ed.2d 207 (1962)). See also Conservation Law Foundation of New England, Inc. v. Secretary of the Interior, 864 F.2d 954, 958 (1st Cir.1989) (The court must “... affirm agency’s decision if it is supported by a rational basis.”) Although preproject proposals included a nuclear or a coal-fired power plant and an aluminum smelter, see FEIS, Vol. I, at 4-109, the FHwA rationally determined that those developments could be excluded from consideration because “their size and enormous controversy” would make them “independent of the subject causeway and port project,” id. It was not arbitrary and capricious for the FHwA to conclude that the construction and operation of a nuclear or a coal-fired power plant and an aluminum smelter would entail such enormous financial costs, public (political) controversy, and regulatory restrictions, that exclusion of these preproject proposals from consideration as reasonably foreseeable secondary impacts of the Sears Island cargo terminal was warranted. The defendants further assert that it was reasonable to assume that only the four targeted industries would locate at the industrial park and that there would be no significant air or water impacts. The defendants argue that the federal agencies were entitled to reject recommendations that the EIS evaluate impacts associated with “heavy” industrial development, because “heavy” industry is a term without precise meaning, providing no basis for analysis. Although “heavy” industry is an imprecise term (as is “light-dry” industry), its vagueness is not sufficient reason to restrict the secondary impact analysis to “light-dry” industries. The fundamental question is not what is or is not “heavy” industry, but whether anything other than “light-dry” industry (however that imprecise term may be defined) is a reasonably foreseeable secondary development. The defendants contend that the recommendation made by the Advisory Committee on Coastal Development and Conservation (i.e., that Searsport become one of three p