Kilroy v. Ruckelshaus
Citation: 14 ELR 20774
No. Nos. 82-5894, -6097, 738 F.2d 1448/21 ERC 1385/(9th Cir., 07/31/1984) Aff'd after remand
The court holds that the environmental impact statement (EIS) for sludge disposal from the Hyperion Wastewater Treatment Plant in Los Angeles sufficiently considered ocean dumping alternatives to the project to permit the decisionmaker to make a reasoned choice. The court first holds that although the lower court decided the EIS issues by summary judgment, it did not deprive Kilroy of a full and fair opportunity to present his case. Kilroy had notice that the defendants had requested summary judgment on all claims before the court. Further, although the court rejected Kilroy's "proposed findings of fact," these actually were legal conclusions, which the court was free to reject in a summary ruling. In fact, the court holds, there were no genuine issues of material fact before the lower court, and summary judgment was therefore proper. Kilroy alleged on appeal that the EIS concealed air pollution data, but since this factual issue was not raised below, it may not be heard now.
Turning to the merits of the summary judgment ruling, the court affirms the lower court. An EIS may be set aside, under Administrative Procedure Act § 706(2)(D), if it was undertaken without observance of procedures required by law. The National Environmental Policy Act (NEPA) requires discussion of a "no action" alternative; Kilroy alleges that the EIS is defective because instead of treating ocean discharge of sludge as the "no action" alternative, it discusses an interim sludge treatment project that was never implemented. The court rejects this argument since the present ocean discharge of sludge is discussed in the EIS's description of the interim project, and since the legal barriers to ocean discharge — including federal legislation and a consent ruling in which Los Angeles promised to phase out ocean discharges — make it so unreasonable as to merit little discussion. For the same reasons, the court rejects Kilroy's argument that the discussion of ocean dumping alternatives was too superficial. In light of proscriptions against ocean dumping in the Federal Water Pollution Control Act, the Marine Protection, Research and Sanctuaries Act, the project's National Pollutant Discharge Elimination System permit, and the consent decree, the EIS contains more than sufficient discussion of disposal alternatives to permit a reasoned choice.
In affirming the summary judgment, the court also affirms a ruling in a second district court case that held that the first court's ruling was res judicata on the issue of the adequacy of the EIS.
Counsel for Appellants
Jonathan M. Coupal
Pacific Legal Foundation
455 Capitol Mall, Suite 600, Sacramento CA 95814
Counsel for Appellees
Office of the Regional Counsel
Environmental Protection Agency, 215 Fremont St., San Francisco CA 94105
Roger West, Ass't U.S. Attorney
1100 U.S. Cthse., 312 N. Spring St., Los Angeles CA 90012
Before SKOPIL, FERGUSON and CANBY, Circuit Judges.