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Muhly v. Espy

Citation: 25 ELR 21382
No. No. 94-0634-R, 877 F. Supp. 294/(W.D. Va., 01/18/1995)

The court holds that it lacks jurisdiction over landowners' suit seeking to compel the U.S. Forest Service and other government agencies to reopen the scoping process under the National Environmental Policy Act (NEPA) in conjunction with a power company's proposal to construct a high-voltage transmission line near their homes. The landowners claim that they were excluded from the scoping process and that defendants violated NEPA and its implementing regulations by denying the landowners' participation. The court first notes that because the landowners brought their claim under the citizen suit provision of the Administrative Procedure Act, 5 U.S.C. § 702, the action sought to be reviewed must be final agency action. The court then holds that there has been no final agency action. Although defendants completed the scoping process and established preliminary alternative routes for the transmission line, these steps mark the beginning, not the termination, of the NEPA process. Among the stages left to be completed are issuance of a draft environmental impact statement (EIS), public comment during a compulsory 45-day waiting period, and issuance of a final EIS. These stages all require substantial public input, during which the landowners could conceivably cure any of the defects in the NEPA process thatthey believe have taken place thus far. In addition, unless Virginia and West Virginia issue a certificate of need for the transmission line, this litigation is moot. Because defendants have not completed their decisionmaking process and have made no definitive determination that the court believes could cause the landowners permanent hardship, the court holds that it does not have jurisdiction to review the landowners' claims. The court notes that it does not agree that the landowners no longer have a voice in the matter. There is no reason why they cannot present their views in upcoming meetings that defendants have scheduled.

Counsel for Plaintiffs
Stephen A. Issacs
Law Office of Stephen A. Issacs
8133 Forest Hill Ave., Ste. 101, Richmond VA 23235
(804) 330-0213

Counsel for Defendants
Robert P. Crouch Jr., U.S. Attorney
U.S. Attorney's Office
Richard A. Poff U.S. CtHse., P.O. Box 1709, Roanoke VA 24008
(703) 857-2250