Bersani v. United States Environmental Protection Agency

According to the Environmental Protection Agency (EPA) (defendant), John A. Bersani, the Pyramid Companies, and other parties (collectively, Pyramid) (plaintiffs) began looking for sites to build a mall in the spring of 1983. One available site for the mall was Sweedens Swamp, consisting of 49.5 acres of wetlands in South Attleboro, Massachusetts. Prior to July 1, 1983, an alternative building site in North Attleboro was available for purchase, and construction there would have had less environmental impact on wetlands. On July 1, 1983, the North Attleboro site became unavailable because a third-party competitor acquired purchase options. In December 1983, Pyramid purchased Sweedens Swamp, and thereafter it applied to the United States Army Corps of Engineers (the Corps) for a permit under § 404(a) of the Clean Water Act (CWA) to discharge dredged or fill material into wetlands. The Corps granted Pyramid’s application, but the EPA vetoed the decision based on the availability of a practicable alternative. The EPA found that the North Attleboro site appeared to be available at the time Pyramid was searching for a site and would have had a less adverse impact on wetlands. Pyramid sued the EPA in district court claiming that the EPA’s consideration of practicable alternatives at the time Pyramid entered the market to search for sites (market-entry approach) was arbitrary and capricious. The court approved the EPA’s decision, and Pyramid appealed.