
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
