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Atchison, Topeka & Santa Fe Ry. v. Callaway

Citation: 8 ELR 20887
No. Nos. 74-1190, -1191, 459 F. Supp. 188/12 ERC 1513/(D.D.C., 10/03/1978) Summary judgment denied

On cross-motions for summary judgment in a case challenging the adequacy of the Corps of Engineers' environmental impact statement (EIS) on a request for congressional authorization for the proposed Lock and Dam 26 project, the court denies plaintiffs' motion and grants defendants' motion in part. Summary judgment on plaintiffs' allegation that a programmatic EIS is required for the proposal is denied because it is unclear to the court without further proceedings whether other projects alleged to be related to the principal project are sufficiently developed to constitute "proposals" and thus fall within the EIS requirement of the National Environmental Policy Act (NEPA). Because resolution of this factual question is a prerequisite to considering plaintiffs' claim that the EIS inadequately addressed alternatives to the project, the court denies summary judgment on this issue as well. The disputed adequacy of the statement's cost/benefit analysis is another issue with respect to which material facts remain in dispute and summary judgment is thus inappropriate. The court grants plaintiff's request for an evidentiary hearing at which to develop information relating to the adequacy of the impact statement, thereby rejecting defendants' arguments that the statement must be judged solely in light of the existing administrative record. Finally, the court grants defendants' motion for summary judgment on plaintiffs' contention that the Corps' decision to seek authorizing legislation from Congress was arbitrary and capricious and should be reversed. Since such a ruling might have a chilling effect on the legislative process, agency actions of this type should not be subject to judicial review.

Counsel for Plaintiffs
Joseph V. Karaganis, Sanford R. Gail
Karaganis & Gail
180 N. LaSalle St., Chicago IL 60601
(312) 782-1905

Joseph D. Feeney, General Counsel; Stuart E. Vaughn
Western R.R. Ass'n
222 S. Riverside Plaza, Chicago IL 60606
(312) 648-7812

Counsel for Plaintiff-Intervenor State of Wisconsin
Richard Boyd, Ass't Attorney General
Department of Justice
114 E. State Capitol, Madison WI 53702
(608) 226-1221

Counsel for Defendants
Fred R. Disheroon, Irwin L. Schroeder
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2716

Counsel for Defendant-Intervenor Ass'n for the Improvement of the Mississippi River
Ramsay D. Potts, George V. Allen, Jr., J. Thomas Lenhart
Shaw, Pittman, Potts & Trowbridge 1800 M. St. NW, Washington DC 20036
(202) 331-4110

Counsel for Defendants-Intervenors Water Resources Council, et al.
David R. Melincoff
O'Connor & Hannan
Suite 600, 1747 Pennsylvania Ave. NW, Washington DC 20006
(202) 787-8700

Counsel for Amicus Curiae State of Minnesota
James B. Early, Special Ass't Attorney General
102 State Capitol, St. Paul MN 55155
(612) 296-6196