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Environmental Defense Fund v. Johnson

Citation: 10 ELR 20737
No. No. 79-6206, 629 F.2d 239/14 ERC 2025/(2d Cir., 08/13/1980) Aff'd

The Second Circuit Court of Appeals affirms the district court's dismissal, 9 ELR 20650, as not ripe for review, of an action to enjoin the Corps of Engineers from seeking congressional authorization for a study of the Hudson River Project prior to preparation of the project's final environmental impact statement (EIS) and an environmental quality plan. The court determines that the Corps' report recommending further study of the contemplated project is not a"final agency action" within the meaning of § 8 of the Administrative Procedure Act because a recommendation to construct has not yet been made. In addition, the Corps need not prepare a final EIS at this time because a proposal for legislation authorizing further study, unlike a recommendation to construct, is not one "significantly affecting the quality of the human environment" under § 102(2)(C) of the National Environmental Policy Act.

A dissenter argues that the Corps' report does constitute final agency action reviewable under the APA because it completes the planning process mandated under the Northeastern United States Water Supply Act and effectively precludes consideration of alternatives to the Hudson River Project.

Counsel for Plaintiffs-Appellants
James T. B. Tripp
Environmental Defense Fund, Inc.
475 Park Ave. S, New York NY 10016
(212) 686-4191

A. Stephen Hut Jr., Daniel K. Mayers, Jonathan Becker
Wilmer & Pickering
1666 K St. NW, Washington DC 20006
(202) 872-6000

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

Counsel for Defendants-Appellees
Jane E. Gloom, Peter Salerno, Ass't U.S. Attorneys; Robert F. Riske Jr., U.S. Attorney
One St. Andrew's Plaza, New York NY 10007
(212) 791-0555

Joined by Oakes and Pollack,* JJ.