Enforcing the "Commitments" made in Impact Statements: A Proposed Passage Through a Thicket of Case Law

A series of recent judicial decisions under the National Environmental Policy Act (NEPA)¹ sheds light on an issue that has evaded serious scrutiny for the better part of the statute's existence: can the representations made within an environmental impact statement (EIS) be enforced? Stated differently, when a federal agency fails either to construct a project as "promised" within the EIS or to contain adverse environmental impacts within the prescribed levels, may injured parties obtain relief in federal court?

Suppose that an EIS concerning the building of a dam were to provide that its environmental impacts would be mitigated by the enhancement and preservation of a large wetlands area. If the construction agency were to scrap the mitigation plan after the dam had been built, would affected parties have legal recourse? In three cases involving similar circumstances, plaintiffs have sought a range of equitable remedies from the courts, including restitution, project redesign, and damages. Although the bare results clearly favor the defendants, the judicial responses are best described as confused. A broader, more careful examination of the issues reveals that while NEPA itself is silent on the matter, the availability of carefully tailored post-project relief would serve to protect the integrity of the NEPA process without unduly impinging on agency prerogatives or activities.

The Nature of the EIS Process

The environmental impact statement has two primary functions. The first is internal: it synthesizes the environmental information pertaining to a project and highlights the relative merits of alternative courses of action, equiping the decision maker to reach a final judgment on the basis of a full awareness of the costs and benefits involved. The second function is external: the EIS transmits to the public a blueprint of the proposed action and sets forth the judgmental considerations involved in choosing one of the available alternatives. In most cases great reliance will be placed on this information by (1) the public, which may submit their views on the proposal by commenting on the draft EIS,² (2) the courts, which turn to the EIS to assess the substantive merits of the agency's decision or, more often, to review its procedural compliance with NEPA,³ and (3) Congress, which intended thr EIS to serve as a window enabling it to better understand and oversee the environment-shaping activities of the executive branch.⁴

The efficacy of an impact statement in achieving these purposes is obviously dependent on the thoroughness, accuracy, and candor with which it is prepared. Unfortunately, the nature of the EIS process is such that agencies confront strong disincentives to full and accurate disclosure. Statements that underestimate the expected environmental consequences of an action or downplay the merits of its altcrnatives are less likely to generate public hostility or provide ammunition to the established opponents of a project. Similarly, where an action is of dubious merit the agency may succumb to cursory optimism when describing it in the EIS in order to shield it from the scrutiny of the public, the courts, or Congress.

As a general matter, these shortcomings are not discovered until the project is completed in whole or in large part, because they are virtually immune from judicial review. This problem is due in some measure to the fact that the process of preparing an EIS is a predictive and therefore somewhat speculative one. The impacts of many federal actions are complex, synergistic, often socioeconomic, and thus inherently resistant to even the crudely quantified estimates possible in other scientific disciplines. Accordingly, where an agency's estimate of envirnmental effects conflicts with those of a private litigant's expert witness, courts have little alternative but to defer to the agency's judgment unless it can be shown to be obviously wrong.⁵ Moreover, EISs are legally challenged only in rare cases, and these suits turn as often as not on procedural rather than substantive issues.The large majority of impact statements move quietly from agency to archive, their inaccuracies and omissions interred, undetected, with them.

Another type of deficiency found in impact statements, though less frequently, may be more serious because it is even less amendable to judicial policing. In large measure EISs consist of simple representations, or commitments, as to the course of action the agency will take. If an agency departs from the prescribed course or if adverse impacts exceed prescribed levels, that fact will usually not be apparent until after the EIS has been approved or the opportunity to review it has passed. At such a point the project will have a natural inertia that tends to steamroll public or judicial opposition.

Where an agency has departed from the EIS in constructing a project, and gone on to complete the project, chances are that the cement will have dried in a literal as well as a figurative sense. Even if it determines that a violation of NEPA has occurred, a reviewing court will be faced with essentially three alternatives. First, it can order that the project be dismantled or redone. This kind of relief, however, raises serious difficulties, involving at [10 ELR 10154] a minimum separation of powers and the allocation of agency funds, and will be almost impossible to obtain. Second, a court might order that the "new" project be addressed within a supplemental EIS. Such an order might well be seen as an empty gesture meant to "punish" the agency for its transgression. Lastly, a court might simply throw up its hands and dismiss the action. Of the three alternatives suggested, the latter has as much support in the text of NEPA as do the others, since the text of the Act offers no guidance in this situation. Undoubtedly for that reason, the latter alternative is the only one to have been adopted by a court.

Litigation to Date

The first legal challenge to an agency's compliance with the terms of an EIS dramatized the potential for breakdown within the EIS process. In Ogunquit Village Corporation v. Davis⁶ a small seaside community had initially sought the government's help in preserving the integrity of its beach, specifically a large continuous sand dune. The dune, which was 20 feet high, more than a mile long, and comprised purely of very fine white quartz sand, was a major tourist attraction essential to the local economy. When uncontrolled public use destroyed its stabilizing vegetation and triggered its erosion, the village persuaded the Soil Conservation Service (SCS) to rebuild it.

The impact statement prepared for the action stated that the dune would be reconstructed with the same white quartz sand found on the nearby beach. However, when obtaining sufficient quantities of the special sand became difficult, the SCS turned to an inland gravel pit. There it obtained hundreds of tons of coarse yellow sand and gravel, which it dumped on the beach and packed into a trapezoidal shape. Thus, Ogunquit's beautiful white dune was transformed into an "ugly yellow bunker,"⁷ to the understandable horror of the residents.

Seeking damages and an affirmative injunction requiring proper restoration of the dune, the village filed suit in district court but did not survive the government's motion to dismiss. The district court, acknowledging readily the lack of case law on point, fell back on a line of cases holding that NEPA does not apply to major federal actions initiated prior to the Act's passage.⁸ On this basis it concluded that the Act is inapplicable to completed actions regardless of when they were begun.

The rationale offered by the First Circuit Court of Appeals was hardly more satisfying. "[D]eeply troubled by the dilemma" facing it, the appellate court recognized that to categorically rule out post-project relief under NEPA would be in effect to give agencies carte blanche to maim the environment once an EIS has been approved. On the other hand, an unknown array of ills might flow from instituting an opportunity for post-project relief. Courts and the public alike, working with the benefit of hindsight, would be tempted to fly-speck completed projects with an eye to redoing or undoing them. Stating that it was aware of "no set of workable principles" that might balance these competing concerns, the court declined to formulate any itself. The "unhappy result" of the agency's action would have to be remedied, if at all, by Congress.

If, as the court of appeals found, the agency misconduct reviewed in Ogunquit was "egregious," then that of the Federal Aviation Administration (FAA) reviewed in City of Blue Ash v. McLucas⁹ bordered on aggressive bad faith. In that case the City of Cincinnati, which was lengthening a runway at a municipal airport, had acceded to public demands that jet aircraft be prohibited from using the facility. Because the FAA was providing funds for the action, it prepared an EIS, which stipulated that jets would be barred from the airport. Nevertheless, shortly after the runway project was completed, the agency announced that jets would, after all, be allowed to use the airport. The City of Blue Ash, which had fought hard to obtain the commitment to ban jets, brought suit against the FAA, alleging that the agency was bound to implement the action as it was described in the EIS.

Affirming the district court's denial of relief,¹⁰ the Sixth Circuit Court of Appeals summarily rejected the city's argument. The commitment to prohibit jets, if it was binding on anyone, committed only the City of Cincinnati. The FAA's EIS merely reflected an agreement between two other parties and had not been intended to make it subject to that agreement. As to plaintiff's argument that the representation within the EIS constituted an implied commitment to a specific course of action, the court declared bluntly that no persuasive authority had been put forth to support that novel proposition.

Similar arguments raised in the Fourth Circuit led to one of the most bizarre treatments of NEPA in a long while. Mountainbrook Homeowners Association v. Adams¹¹ concerned a federally funded and nearly completed interstate highway that cut through Beaucatcher Mountain. Plaintiffs alleged that the waste material from the excavation work was being disposed of in an environmentally unsound manner, in "violation" of the EIS for the project, which provided that the waste would be adequately contoured and drained. They sought a decree requiring, among other things, that the rock be disposed of as indicated in the impact statement.

The district judge, in what was evidently his first decision under the Act, concluded not only that he was powerless under NEPA to issue the type of relief sought but that NEPA did not provide a cause of action to any plaintiff, whether private or governmental, to enforce its provisions.¹² The Fourth Circuit affirmed.¹³

[10 ELR 10155]

Three other decisions round out the list of "EIS enforcement" cases, though in truth they belong in a somewhat distinct category. Noe v. Metropolitan Atlanta Rapid Transit Authority¹⁴ concerned the construction of a rail transit system for which an EIS had been prepared and judicially validated years before.¹⁵ Plaintiff, who operated and lived above a book shop located adjacent to a construction site, claimed that notwithstanding the adequacy of the EIS, the actual construction of the system created noise levels far in excess of those specified in the EIS, to the detriment of her economic and physical well-being. The district court granted defendants' motion to dismiss for failure to state a claim on which relief could be granted. Though apparently conceding that NEPA does provide a cause of action for certain purposes, it ruled that no cause of action lies to assure agency compliance with impact statements.

In East 63rd Street Association v. Coleman¹⁶ plaintiffs sought a preliminary injunction against construction of another subway on the grounds, inter alia, that the Departmentof Transportation had failed to disclose the full extent of the environmental effects associated with the construction process. Although the trial court found that the impact statement had in fact adequately predicted the environmental harms of which the plaintiffs complained, it was influenced more by the fact that the EIS had been completed three years earlier yet never legally challenged. The plaintiffs, who were only a dy or two ahead of the bulldozers, had prejudiced the equities of the case by failing to contest the sufficiency of the EIS until the last moment. Significantly, the court never considered whether NEPA creates a cause of action to support such a suit. As in the affirming opinion of the First Circuit,¹⁷ the issues were framed simply as whether NEPA had been violated and, if so, whether the facts would support the issuance of relief. Since the EIS had given "fair warning" of the likely impacts of the project, plaintiffs could not establish that their rights under NEPA had been violated.

The situation in Red Line Alert v. Adams¹⁸ was of the same mold, except that there the plaintiffs challenged not the absolute noise levels produced during the construction of a subway but the decision to excavate with explosives instead of using a boring machine.¹⁹ The impact statement had provided that explosives would not be employed. Following the rationale of the court in East 63rd St. Ass'n rather than that in Noe v. MARTA, the district court ruled that the burden is on defendants to show that they have complied with the general descriptions of a project set out in an EIS. The court withheld relief, however, in order to give the agency an opportunity to show that the environmental effects of the blasting activities would be within the overall levels predicted previously.

Issues and Non-Issues

It is important to distinguish the first three cases listed above from the last three. Ogunquit, City of Blue Ash, and Mountainbrook concerned federal actions which had been planned, analyzed in an EIS, and carried out, while Noe v. MARTA, Red Line, and East 63rd St. Ass'n concerned actions in various stages of pendency. This difference in timing calls for a wholly different analytical method.

There now exists a substantial body of case law which is more than adequate to dispose of the subway, or pending-project cases. It is well settled that when an agency changes the design of a project after the EIS has been completed, or if it is learned that the environmental impacts of a project will be greater than those that were predicted initially, NEPA requires the preparation of a supplemental EIS.²⁰ In such cases the issue is not whether the defendant agency must comply with the terms of the EIS and is thus barred from deviating from the original project plans.Indeed, the agency is always free to change its plans. However, it must, if the change is significant, subject the amended plan to renewed NEPA review and public comment.

This mode of analysis was properly adopted by the courts in Red Line and East 63rd St. Ass'n. In Noe v. MARTA, however, the court framed the question as whether the EIS could be enforced, a dubious beginning which led to even more dubious results. To the extent that it was deemed an "EIS enforcement" case rather than a "supplemental EIS" case, Noe v. MARTA was wrongly decided. The court should have asked (1) whether the environmental effects of which plaintiff complained were substantially greater than those addressed in the EIS, thus requiring preparation of a supplemental EIS, and (2) if so, whether injunctive relief should have issued in order to maintain the noise of the subway construction at the specified levels, at least until the supplement had been circulated.

The issues presented in Ogunquit, City of Blue Ash, and Mountainbrook, where the projects in question had been completed, are distinct from those in the subway cases in key respects. Unfortunately, the reasoning offered in the former opinions is neither consistent nor convincing. [10 ELR 10156] Each was unduly concerned with case law that in truth has little bearing on the question of post-project relief. In addition, each fails to recognize considerations of law and policy which might, under special circumstances, combine to support the taking of post-completion remedial measures where an agency has grossly disregarded an EIS.

One omission which plagues each decision is the failure to recognize the twin objectives of the EIS — to improve agency planning and to benefit the public directly by bringing it into the decision-making process. The First Circuit in Ogunquit, for example, observed that since the agency had prepared both a draft and a final EIS and received comments thereon, its decision-making process had been enlightened as envisioned under NEPA and the statutory objectives had thus been satisfied. In fact, however, the public had been misled as to the true nature of the action and to that extent the statutory goals had been thwarted. The same was true in City of Blue Ash and, accepting plaintiffs' factual allegations, in Mountainbrook as well.

Another issue which seems to have impaired the reasoning of these courts is the much-discussed distinction between substantive and procedural review under NEPA.²¹ As the law now stands, courts penalize the agencies for noncompliance with the statutorily mandated procedures but may not "substitute their judgment for the agencies" by directing that a particular course of action be followed or avoided.²² It is apparent that if this principle were applied to post-project situations such as that in Ogunquit, it might prevent a court from ordering that a sand dune be reconstructed in a certain way or that the pre-project status quo be reestablished. In fact, however, the plaintiffs in these cases did not seek review of the agency's formulation of the decision; they sought simply to have the designated decision carried out. If one of the courts had issued the requested relief it would not have interfered with the agency's discretionary prerogatives in the same way as that so carefully avoided by the courts.

Less easily countenanced is the ruling of the district court, as affirmed by the Fourth Circuit in Mountainbrook, that NEPA does not authorize litigation to enforce its requirements. Had the question been one of first impression it might have been debatable since the Act is indeed silent as to the means of its enforcement, but the Act now has more than a decade of history behind it. The district court's decision must be attributed to its expressed antagonism to citizen suits generally;²³ the court of appeals' is harder to fathom.²⁴

A Proposed Framework for Post-Project Relief

Had the courts in City of Blue Ash and Mountainbrook taken a hard, deliberate look at the nature of the EIS process they would surely have recognized, as did the First Circuit in Ogunquit,²⁵ that unless agencies face at least a threat of post-completion judicial sanctions the entire process runs a risk of last-minute disruption.It is crucial that some form of relief be available, however rarely it is invoked, to prevent agencies from disregarding an EIS once the foundations of a project have been laid. Just as the possibility that impact statements will be invalidated has salutary effects upon their preparation, continuing judicial authority over the construction and post-construction phases of a project will serve as an almost invisible hand that serves to keep the agency in tow.

That courts have the authority, if not an obligation, to review compliance with the commitments made in an EIS can be readily established. First, it is beyond question that an EIS is legally defective if it misidentifies or fails to identify the specific course of action that the agency intends to follow.²⁶ Where the action has not yet commenced, a common remedy is to remand for designation of the chosen alternative and solicitation of public comment.²⁷ Where the project is underway, the issue becomes whether revisionof the EIS or preparation of a supplemental EIS is required to address the change in the project plans or the previously unidentified environmental impacts. A supplement or revision will be required where the deviation from the EIS is material, even though the project may be at a stage where the weighing of equities will preclude accompanying injunctive relief.²⁸ On the other hand, the equities may support the issuance of a preliminary injunction.²⁹ The essential point is the Act has been violated; once that determination has been made, traditional equitable considerations augur, in varying degrees, for judicial restraint in shaping the remedy, but they do not bear on the question whether a plaintiff may seek relief as a matter of law.³⁰ In other words, once an EIS has been determined, even in hindsight, to be legally inadequate, the alternative remedies should at least be investigated. In some cases relief will [10 ELR 10157] prove manageable and will go far to further the purposes of the Act.

Even though no court has found it prudent to issue post-project relief, in dictum some have indicated that they do have such authority. In Ogunquit, for example, the court emphasized that its dismissal of the case was based on plaintiffs' failure to demonstrate "a conscious design [on the part of the SCS] to circumvent the requirements of NEPA as would amount to bad faith."³¹ The court implied that if such a showing had been made, judicial intervention after the termination of the NEPA process would have been justified.

In Sierra Club v. Mason,³² the district court issued a preliminary injunction against the dredging of New Haven Harbor pending preparation of an impact statement. When the EIS was completed, plaintiff requested that the injunction be modified to require that the dredging be conducted in conformance with the description within the EIS. The court denied the request, explaining that it would not cast itself as the project overseer. Yet it based its decision on the "absence of any indication that the defendants have threatened not to comply [with the EIS]."³³ Moreover, the court warned the agency that if it did not fully inform the plaintiff as to whether the EIS was being followed, injunctive relief would presumptively be justified.³⁴ The court plainly assumed that the project plans set out in the EIS would be followed and that noncompliance was actionable.

Unfortunately, determining that post-project relief is authorized is simpler than determining when it should issue. The First Circuit, though it eventually declared itself unable to come up with generally applicable criteria, implied that it would require a showing of "bad faith" on the agency's part.³⁵ The court in Mason, on the other hand, suggested that judicial action is merited wherever the agency "threatens" to depart from the outline of the EIS. The First Circuit is probably right in its view that agencies should be permitted some degree of freedom to disregard an EIS before the courts step in. Nonetheless, the proposed "bad faith" standard seems to be both excessively deferential and too difficult to administer. The term "bad faith" connotes a degree of scienter or malice that could prove extremely difficult to impute to an institution. A preferable standard would be the familiar "arbitrary and capricious" test found in the Administrative Procedure Act.³⁶ Under this test, an agency would be held to have acted arbitrarily and capriciously when (1) it departed from the EIS blueprint without a good reason for doing so, or (2) if it had adequate grounds for the change, it failed to make every effort to remedy the disruption of the NEPA process by issuing prompt notice of the change, preparing a supplemental environmental analysis, and soliciting public comments. In the related case in which the agency learns that the environmental impacts of an action will be significantly greater or different than predicted, failure to supplement the record appropriately would be deemed arbitrary and capricious.

Even where these criteria have been met, the courts could justifiably erect additional barriers to post-project judicial review. For example, the change in the project plans or its newly discovered impacts should be environmentally significant.³⁷ Further, the courts should require a high degree of vigilance on the part of the plaintiffs. A request for relief after a project has been completed should be accompanied by a showing that the request could not have been made earlier. The doctrine of laches, though it is viewed with disfavor in NEPA cases,³⁸ could profitably be employed in the post-project context to assure good faith by plaintiffs and prevent prejudice to defendants.

The final question, of course, concerns the appropriate form of relief. As a minimum first step, the preparation of a post-hoc supplemental EIS can arguably be justified in any case meeting the above criteria. Even if an action is irrevocably final, a supplemental EIS will mitigate the preceding NEPA violation by providing the agency and the public with an analysis of the environmental effects of the action. It would be expected, though, that a supplement would be of more practical benefit in many cases. It would indicate whether the alternative ultimately chosen by the agency was justified. If such justification is weak or nonexistent, the supplemental EIS should reveal ways of modifying the project or mitigating its adverse effects, as well as whether they are cost-justified.

Beyond that, the shaping of relief will require a careful assessment of the circumstances and balancing of the costs and benefits. Some actions are inherently incapable of mitigation. Examples include the test firing of a nuclear device³⁹ or the elimination of an endangered species.⁴⁰ Major construction projects such as water impoundments will likely prove hardly more amenable to post-completion retrofitting. Yet if a project modification that was illegally excluded from NEPA review at the outset can be shown to be cost-beneficial, it should by all means be brought to the attention of the agency and the public.

Many other actions, on the other hand, would lend themselves more readily to reassessment or reworking. A good example is provided by the facts in City of Blue [10 ELR 10158] Ash, in which the FAA permitted jets to use an airport despite indications in the EIS to the contrary. A supplemental EIS might reveal that jets should not be allowed at all and that to prohibit them would be virtually cost-free. In such cases no court would be free to "substitute its judgment for the agency" by ordering, for example, that jets be barred from an airport or that a sand dune be reconstructed. In those cases, however, where an agency's failure to take such remedial measures could be shown to be arbitrary and capricious, a court might be justified in ordering that affirmative steps be taken to remedy the environmental injuries sustained by the plaintiffs.

Conclusion

The importance of the EIS to assuring agency compliance with the letter and spirit of NEPA cannot be over-emphasized. The history of the Act demonstrates that most of the credit for turning the impact statement into such an effective instrument of reform must go to the courts.⁴¹ Yet while stringent judicial review has catalyzed the evolution of the EIS into the awesome planning document that it has become, the courts have denied their jurisdiction after a given project has been completed, refusing to ascertain that even in general terms the plan has been carried out.

Experience teaches that for the most part agencies prepare impact statements in good faith, actually rely on them for planning purposes, and construct projects in at least rough accordance with their provisions. The cases, on the other hand, teach that on occasion extreme malfunctions have occurred, giving rise to speculation that similar, though less egregious difficulties might have occurred in a much larger number of cases.

As a general matter, it appears that continued judicial involvement beyond the completion of federal projects would go far to protect the integrity of the EIS process. Without at the least the possibility of post-project review, agencies are subject to no external incentive to perform an action along the lines established in the EIS. This lack of incentive, in conjunction with the inherent disincentives to full disclosure within the EIS, encourage agencies to do little more than compile tomes of environmental data which satisfy prevailing standards of "adequacy" but in fact have little if any impact on actual project construction. In such a case "public participation" becomes little more than a cosmetic exercise.

Obviously, the worst possible stage at which to review a construction agency's compliance with NEPA is after the project has been completed. Nevertheless, at that point all is not necessarily lost. Injuries to the public's right of participation can be salved if not fully remedied by the preparation of a supplemental EIS, and mitigation measures which earlier were illegally disregarded can be evaluated and possible implemented. It is difficult to advocate, in the abstract, that courts order the adoption of project modifcations simply to ensure compliance with the EIS. Nevertheless, where the refusal to so mitigate an action's adverse impacts can be shown to be arbitrary and capricious, affirmative injunctive relief would seem justified. The key advantage of the availability of post-project relief is that the "invisible hand" of judicial review would promote continuing good faith compliance with NEPA throughout the life of federal projects.

1. 42 U.S.C. §§ 4321-4361, ELR STAT. & REG. 41009.

2. See generally Jones v. Redevelopment Land Agency, 499 F.2d 502, 512-513, 4 ELR 20479, 20482-83 (D.C. Cir. 1974); California v. Bergland, 483 F. Supp. 465, 482, 493-496, 10 ELR 20098, 20104, 20109-10 (E.D. Cal. 1980).

3. See Grazing Fields Farm v. Goldschmidt, 10 ELR 20533 (1st Cir. June 25, 1980) (when information crucial to judicial review of agency decision is not located within EIS, even though it may be found elsewhere in administrative record, EIS is to be remanded for supplementation).

4. See generally Realty Income Trust v. Eckerd, 564 F.2d 447, 454, 7 ELR 20541, 20544 (D.C. Cir. 1977); Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827, 833, 2 ELR 20029, 20032 (D.C. Cir. 1972); Committee for Nuclear Responsibility, Inc. v. Seaborg, 463 F.2d 783, 787, 1 ELR 20469, 20470 (D.C. Cir. 1971).

5. Environmental Defense Fund v. Hoffmann, 566 F.2d 1060, 1069-70, 8 ELR 20057, 20060-61 (8th Cir. 1977); County of Suffolk v. Secretary of the Interior, 562 F.2d 1368, 1383, 7 ELR 20637, 20643 (2d Cir. 1977); Sierra Club v. Mortion (OCS oil and gas leasing), 510 F.2d 813, 819, 5 ELR 20249, 20250-51 (D.C. Cir. 1975); Committee for Nuclear Responsibility, Inc. v. Seaborg, 463 F.2d 783, 787, 1 ELR 20469, 20470 (D.C. Cir. 1971).

6. 553 F.2d 243, 7 ELR 20381 (1st Cir. 1977).

7. 553 F.2d at 244, 7 ELR at 20381.

8. The decision of the district court in unreported.

9. 596 F.2d 709, 9 ELR 20318 (6th Cir. 1979).

10. The decision of the district court is unreported.

11. __ F. Supp. __, 9 ELR 20686 (W.D.N.C. 1979).

12. In a rather facile analysis, the court looked within the four corners of NEPA and concluded that

A careful reading of NEPA reveals nothing more than a national environmental policy with directions to the various federal agencies to investigate each project to determine its effect on the environment and to prepare and file an environmental impact statement. No mention is made of any cause of action being conferred upon either a government agency or a private party. The Act provides no private civil remedy.

The fact that other courts had entertained NEPA suits in the past was not lost on the court; it was simply deemed mistaken and regrettable.

With the gates open the federal courts have been deluged with a flood of cases and are now called upon to pass upon all controversies arising in connection with every construction project in which there is a dollar of federal money.

Expressing relief that the federal courts are finally "coming to grips with this growing problem," the court justified its dismissal of the suit on a series of recent decisions by the Supreme Court in which it has restricted reliance by private plaintiffs on implied causes of action. 9 ELR at 20688.

13. __ F.2d __, 10 ELR 20352 (4th Cir. May 16, 1980).

14. __ F. Supp. __, 10 ELR 20247 (N.D. Ga. Mar. 4, 1980).

15. Inman Park Restoration, Inc. v. Urban Mass Transportation Administration, 414 F. Supp. 99, 7 ELR 20466 (N.D. Ga. 1976), aff'd sub nom. Save Our Sycamore v. Metropolitan Atlanta Rapid Transit Auth., 576 F.2d 573, 8 ELR 20611 (5th Cir. 1978).

16. 414 F. Supp. 1318, 7 ELR 20459 (S.D.N.Y. 1976).

17. 538 F.2d 309, 7 ELR 20465 (2d Cir. 1977).

18. __ F. Supp. __, 10 ELR 20314 (D. Mass. Feb. 13, 1980).

19. Plaintiffs also challenged the alleged failure to discuss the disposal of contaminated excavation waste as well as the changed location of the last station on the subway line. The court found these alterations to be legally insignificant.

20. See, e.g., Essex Cty. Preservation Ass'n v. Campbell, 536 F.2d 936, 6 ELR 20577 (1st Cir. 1976), aff'g in part 399 F. Supp. 208, 5 ELR 20568 (D. Mass. 1975); Civic Improvement Committee v. Volpe, 6 ELR 20797 (W.D.N.C. 1976); 40 C.F.R. § 1502.9 (CEQ regulations implementing NEPA).

21. See generally, Arnold, The Substantive Right to Environmental Quality Under the National Environmental Policy Act, 3 ELR 50028 (1973); Comment, Charting the Boundaries of NEPA's Substantive Mandate: Strycker's Bay Neighborhood Council, Inc. v. Karlen, 10 ELR 10039 (1980).

22. Strycker's Bay Neighborhood Council, Inc. v. Karlen, 48 U.S.L.W. 3433, 10 ELR 20079 (Jan. 7, 1980).

23. See 9 ELR at 20688.

24. The court did not but might have drawn support from an earlier ruling under the Act. See Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323, 2 ELR 20162 (4th Cir. 1972) ("The congressional command that the Act be complied with 'to the fullest extent possible' means, we believe, that an ongoing project was intended to be subject to Section 102 until it has reached that stage of completion [when it cannot be altered], and that doubt whether the critical stage has been reached must be resolved in favor of applicability.").

25. 553 F.2d at 245, 7 ELR 20382.

26. See Natural Resources Defense Council, Inc. v. Callaway, 524 F.2d 79, 92-94, 5 ELR 20640, 20647-48 (2d Cir. 1975); California v. Bergland, 483 F. Supp. 465, 495 n.36 and accompanying text, 10 ELR 20098, 20110 n.36 (E.D. Cal. Jan. 24, 1980); 40 C.F.R. §§ 1500.7(a), 1502.9 (1980).

27. Id.

28. See cases cited at note 20, supra. Cf. Alaska v. Andrus, 580 F.2d 465, 8 ELR 20237 (D.C. Cir. 1978) (EIS held inadequate and remanded for revision; injunctive relief withheld).

29. See cases cited a note 26, supra.

30. Thus, for example, the Administrative Procedure Act, 5 U.S.C. § 706(2)(D), ELR STAT. & REG. 41005, authorizes courts to set aside agency actions found to be "without observance of procedure required by law," and leaves to individual courts the determination of the proper remedy. Note that this provision, unlike § 706(2)(A), does not require the violation to be "arbitrary and capricious."

31. 553 F.2d at 246, 7 ELR at 20383. See also Ortega Cabrera v. Municipality of Bayamon, 562 F.2d 91, 99, 7 ELR 20766, 20769 (1st Cir. 1977) ("This court recently held [in Ogunquit] that NEPA, absent bad faith, does not authorize any relief after a project has been completed …") (emphasis added).

32. 365 F. Supp. 46, 4 ELR 20186 (D. Conn. 1973).

33. 365 F. Supp. at 50, 4 ELR at 20187.

34. Id.

35. 553 F.2d at 246, 7 ELR at 20383.

36. See 5 U.S.C. § 706(2)(A), ELR STAT. & REG. 41005; see also note 30, supra.

37. Cf. 40 C.F.R. § 1502.9(c) (CEQ NEPA regulations concerning the preparation of supplemental EISs: project alterations must be substantial and newly discovered environmental information must be significant in order to trigger obligation to prepare supplement).

38. See Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323, 2 ELR 20162 (4th Cir. 1972); Environmental Defense Fund, Inc. v. Tennessee Valley Auth., 468 F.2d 1164, 2 ELR 20726 (6th Cir. 1972). But cf. Environmental Defense Fund, Inc. v. Alexander, 614 F.2d 474, 10 ELR 20302 (5th Cir. 1980).

39. See Committee for Nuclear Responsibility, Inc. v. Schlesinger, 404 U.S. 917, 1 ELR 20534 (1971).

40. See Tennessee Valley Auth. v. Hill, 437 U.S. 153, 8 ELR 20513 (1978).

41. See F. ANDERSON, NEPA IN THE COURTS 16 (1973).