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Puerto Rico v. Muskie

ELR Citation: 11 ELR 20424
Nos. Nos. 80-2117 et al., 507 F. Supp. 1035/17 ERC 1073/(D.P.R., 01/05/1981)

The court rules that the construction of a refugee camp for Cuban and Haitian refugees at Fort Allen, Puerto Rico, violates §6001(2) of the Resource Conservation and Recovery Act (RCRA), §§101(b) and 102(2)(E) of the National Environmental Policy Act (NEPA), §307 of the Coastal Zone Management Act (CZMA), §106(f) of the National Historic Preservation Act (NHPA), and the federal common law of nuisance. The First Circuit Court of Appeals, 11 ELR 20004, reversed the district court's granting of a preliminary injunction restraining the transfer of the refugees pending completion of an environmental impact statement (EIS). The district court temporarily stayed the transfer of 2,000 refugees, which was affirmed by the circuit court pending the lower court's opinion on the merits by January 5, 1981. The district court rules that neither the provisions of §405 of the Diaster Relief Act nor a presidential declaration of emergency permit the refugee transfer and related federal actions to be exempted from the requirements of §102 of NEPA. The court next rules that neither the Federal Water Pollution Control Act, the Clean Air Act, nor the Noise Control Act was violated by issuance of an executive order which exempted the refugee camp from those statutory requirements. However, RCRA was violated because only a solid waste management facility can be exempted by an Executive Order and Fort Allen has no such facility. Therefore, the president was without authority to exempt the refugee camps from the mandates of RCRA. Moreover, because the exemption under §501(c)(3) of the Refugee Education Assistance Act excuses compliance only with the EIS requirement in §102(e)(C) and (D), other substantive and procedural requirements of NEPA must be complied with regardless of whether the action is a major federal action. Hence, the court holds that due to defendants' failure to consider environmental factors in choosing a site, as well as appropriate alternative locations, the selection of Fort Allen to house the Cuban and Haitian refugees violated §§101(b) and 102(2) of NEPA. The court next rejects defendants' assertion that under the Council on Environmental Quality (CEQ) regulations, presidential orders are exempt from NEPA because the president is not an "agency" of the federal government. CEQ lacks legal authority to promulgate regulations under the Act. The court also rules that defendants' failure to fully analyze the proposed activities in light of the objectives and policies of Puerto Rico's coastal management program, as well as the failure to wait the required time after notifying Puerto Rico of the proposal before transferring the refugees to Fort Allen, violate the requirements of the CZMA. Further, defendants failed to comply with the NHPA's requirements prior to commencing construction at Fort Allen. The court next holds that the proposed refugee operations will result in an enjoinable nuisance due to the release of insufficiently treated sewage and the dumping of huge quantities of solid waste in an already overloaded landfill. The court therefore permanently enjoins defendants from transferring the refugees to Fort Allen pending compliance with the requisite statutes.

Counsel for the parties appears at 11 ELR 20004.