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Citizens for Clean Air v. Corps of Eng'rs

Citation: 2 ELR 20650
No. No. 72 Civ. 2259, 349 F. Supp. 696/4 ERC 1456/(S.D.N.Y., 08/01/1972)

The Corps of Engineers, in fulfilling its NEPA responsibilities pursuant to issuing a construction permit under Section 10 of the Rivers and Harbors Act of 1899 and issuing a discharge permit under Section 13 of that Act, cannot first decide to consider the environmental impacts of both permits together and then, without independent consideration of the environmental impact, decide to forego a statement at the construction permit stage. The decision to accomodate Consolidated Edison by agreeing to let them begin construction violates NEPA requirements, since the project had progressed to the point that a full study was appropriate. Delaying the study until after construction was complete would foreclose real discussion of alternatives and would ignore completely the environmental consequences of the construction process itself. The organizational plaintiffs have standing to bring this suit since they allege that their members will be harmed by the pollution created if the plant is built. Although jurisdiction to hear the suit exists under the Administrative Procedure Act, it may also be grounded on the Commerce Clause since the permit would affect an admittedly navigable stream. Issuance of the permit is delayed until a full NEPA study is completed.

Counsel for Plaintiffs
Jeffrey C. Cohen
Martin H. Redish
300 Park Avenue
New York, N.Y. 10022

Counsel for Defendants
Whitney North Seymour, Jr. United States Attorney
United States Court House
New York, N.Y. 10007

Counsel for Defendants Consolidated Edison
Williams & O'Neill
130 East 15th Street
New York, N.Y. 10003