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Chesapeake Bay Found. v. United States

Citation: 8 ELR 20664
No. No. 77-0376-R, 453 F. Supp. 122/11 ERC 1897/(E.D. Va., 06/28/1978) Dismissal vacated in part

The court dismisses plaintiffs' claim that a national pollutant discharge elimination system (NPDES) permit for a proposed petroleum refinery was illegally issued by the state water control board because no environmental impact statement (EIS) was prepared. The federal Environmental Protection Agency was not required to prepare an EIS under the National Environmental Policy Act (NEPA) because its failure to object to state issuance of the permit under the Federal Water Pollution Control Act (FWPCA) did not constitute a major federal action and cannot be equated with federal issuance of the permit. Nor was the state water control board required to file an impact statement, since state issuance of NPDES permits, even though heavily encumbered by federal regulation, is still basically a state matter and is not sufficiently federal in nature to activate NEPA's EIS requirement. In response to plaintiffs' motion for reconsideration of the court's earlier dismissal of several additional claims for lack of subject matter jurisdiction, the court now concludes that it has concurrent jurisdiction with thestate courts over claims that the state defendants' issuance of the permit violated the requirement of the FWPCA. The court therefore vacates its earlier dismissal of these claims and asks for additional briefs on the effect on this litigation of a recent state court decision regarding this discharge permit.

Counsel are listed at 8 ELR 20450.