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Environmental Defense Fund v. Johnson

Citation: 9 ELR 20650
No. No. 79-Civ-2228, 476 F. Supp. 126/13 ERC 2164/(S.D.N.Y., 08/03/1979)

The court dismisses an action to enjoin the Corps of Engineers from seeking congressional authorization for a general design study of the contemplated Hudson River Skimming Project, for which a draft environmental impact statement (EIS) has been prepared, until a final EIS is filed. Looking to the Supreme Court's decisions in Kleppe v. Sierra Club, 6 ELR 20532, and, more recently, Andrus v. Sierra Club, 9 ELR 20390, the court rules that an agency report which merely recommends congressional authorization of further study of a contemplated project does not constitute a "proposal" for legislation or major federal action within the meaning of § 102(2)(C) of the National Environmental Policy Act. The court notes, in addition, that the agency recommendation similarly does not represent "final agency action" within the meaning of § 704 of the Administrative Procedure Act because a recommendation to construct or not to construct the project will not be made until after the completion of the proposed study. The case is thus not ripe for adjudication, and defendants' motion to dismiss is granted.

The Complaint and Memoranda filed by the parties in this case are summarized and made available through the ELR Document Service at ELR PEND. LIT. 65631.

Counsel for Plaintiffs
James T.B. Tripp
Environmental Defense Fund, Inc.
475 Park Ave. S., New York NY 10006
(212) 686-3191

Albert K. Butzel
Butzel & Kass
45 Rockefeller Plaza, New York NY 10020
(212) 765-1800

Counsel for Defendants
Robert B. Fiske, Jr., U.S. Attorney; Jane E. Bloom, John M. O'Connor, Ass't U.S. Attorneys
1 St. Andrews Plaza, New York NY 10007
(202) 791-0055