Coalition for Better Veterans Care, Inc. v. Administrator of the Veterans Administration

No. 81-365-BE (D. Or. October 5, 1981)

The court holds that the Veterans Administration (VA) was not required to consider an alternative not authorized by Congress in its environmental impact statement (EIS) for a hospital construction project. The requirement of § 102(2)(C)(iii) of the National Environmental Policy Act that EISs include a detailed consideration of alternatives is limited by a rule of reason. Whether an alternative must be considered depends on the purpose of the project and on whether the alternative would require additional legislation. Since the project authorized by Congress was the building of a hospital, consideration of the unautorized lesser alternative of treating VA patients in private care facilities was not required.

Counsel for Plaintiffs
Thomas G. P. Guilbert
305 Wilcox Bldg., 506 SW 6th Ave., Portland OR 97204
(503) 228-0811

Charles F. Adams
Stoel, Rives, Boley, Fraser & Wyse
2300 Georgia-Pacific Bldg., 900 SW 5th Ave., Portland OR 97204
(503) 224-3380

Counsel for Defendant
Sidney I. Lezak, U.S. Attorney; Thomas C. Lee
P.O. Box 71, Portland OR 97207
(503) 221-2101

[12 ELR 20103]

Belloni, J.:

This case arises under the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332(2)(C)(iii) (1976). Defendant, the Veterans Administration (VA), desires to construct a new hospital in the Marquam Hill area of Portland, Oregon. Pursuant to NEPA the VA prepared an environmental impact statement (EIS). Plaintiffs, a coalition of citizens, environmental groups, and Multnomah County, argue that this EIS is inadequate because it does not evaluate a certain alternative. The VA has moved for summary judgment. There being no dispute as to a material fact and the VA having proven its case as a matter of law, summary judgment is granted in favor of the defendant Veterans Administration.

Facts

The facts of this case are few and undisputed. Prior to 1978 the VA determined that the existing Portland medical facility was antiquated and not up to building and safety codes. Accordingly, in 1978 Congress appropriated $130,241,000 for the construction of a replacement hospital in Portland. The appropriation act is specific in its purpose and contains the express requirement that "none of these funds shall be used for any project which has not been considered and approved by the Congress in the budgetary process." Department of Housing and Urban Development: Independent Agencies Appropriation Act of 1979, Pub. L. No. 95-392, 92 Stat. 802, 803 (1979).

In accordance with NEPA, 42 U.S.C. § 4332(2)(C), the VA prepared a draft environmental impact statement for a proposed 600-bed replacement hospital. The draft analyzed in detail three alternatives: building at Marquam Hill, building at Emmanual Hospital, and not building at all. Among the comments the VA received on the draft EIS were two from Multnomah County Executive Donald E. Clark and Metropolitan Service District Chief Administrative Officer Denton U. Kent. Each of these comments urged the VA to evaluate further the possibility of retiring the old hospital, not replacing it with a new one, and treating VA patients in private care facilities.

In November 1979 the VA published its final EIS. In the EIS the VA responded to the suggestion of Mr. Clark and Mr. Kent. In short, the VA said that it is not required to evaluate the suggested alternative because Congress would not allow money appropriated for construction of a hospital to be used for any other purpose. Moreover, the VA said, existing laws governing VA medical care limit the agency's authority to pay for non-VA hospital treatment. 28 U.S.C. §§ 601(4)(c), 628 (1976).

Plaintiffs brought suit in this court, contending that the failure of the VA to consider the suggested VA-paid private care alternative violated NEPA, 42 U.S.C. § 4332(2)(C)(iii).

Opinion

At the outset it should be noted that this case is appropriate for disposition on summary judgment. The facts as stated above are not disputed, and they are sufficient to support the legal theory propounded by the moving party. Indeed, under the rule of this circuit in Friends of the Earth v. Coleman, 513 F.2d 295, 297-98 [5 ELR 20259] (9th Cir. 1975) the question of whether an EIS should have considered other alternative is particularly amenable to summary disposition.

The heart of this lawsuit is NEPA, 42 U.S.C. § 4332(2)(C)(iii) which requires an environmental impact statement to include detailed consideration of "alternatives to the proposed action." That section, however, is limited by a rule of reason. Not every conceivable alternative is included in the reach of this section. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 551 [8 ELR 20288] (1977); Life of the Land v. Brinegar, 485 F.2d 460, 472 [3 ELR 20811] (9th Cir. 1973), cert. denied, 416 U.S. 961 (1974).

Whether an alternative must be considered depends in part on the purpose of the project involved. Trout Unlimited v. Morton, 509 F.2d 1276, 1286 [5 ELR 20151] (9th Cir. 1974). In this case the purpose was fairly narrowly drawn by both Congress and the VA. It is to build a replacement hospital. Defendants' suggested alternative seems to stretch far beyond this, calling for an overhaul of national VA policy, which is to provide VA facilities rather than to pay for private care. This assault on basic policy, which has been developed after years of debate by both the agency and by Congress, seems quite out of place in this very specific, local project. In this respect, the case recalls the facts of Sierra Club v. Adams, 578 F.2d 389 [8 ELR 20281] (D.C. Cir. 1978). In that case an EIS on a proposed highway was challenged because it failed to consider in detail certain "no-build" and "non-highway" alternatives. The court upheld that EIS "in view of the fact that Congress has authorized . . . construction of a highway after years of consideration by both the legislative and executive branches." Id. at 392 (emphasis in original). Likewise, here Congress has authorized a hospital and an alternative involving less than that need not be investigated. See also Farmland Preservation Association v. Goldschmidt, 611 F.2d 233, 239 [10 ELR 20052] (8th Cir. 1979).

Whether an alternative must be considered also depends to a large extent on the need for additional legislation.¹ County of Suffolk v. Secretary of the Interior, 562 F.2d at 396. It has already [12 ELR 20104] been pointed out that without new legislation Congress would not allow the money appropriate for the hospital to be spent paying for private care. In addition, federal law allows the VA to pay for private care only under very limited conditions, primarily, when the VA medical centers are not georgraphically accessible, when the VA medical centers cannot provide the required services, and when the medical need is service-related. 28 U.S.C. §§ 601(4)(c), 628. The legislative history makes it clear that "in no circumstances other than these . . . would fee-basis outpatient or hospital care generally be authorized." S. REP. NO. 94-1206, 94th Cong., 2d Sess. 75 (1976). The problem here is that a VA medical center does exist. It is geographically accessible to most of the patients it serves. And only thirty-five percent of its patients are served because of service-related injuries. Hence, until Congress changed current law, the VA would be precluded from serving at least sixty-five percent of its patients.

Under such circumstances the law does not require the exploration of the alternative suggested by plintiffs. Regardless of the ultimate merits of VA-paid private care it is not an alternative that must be evaluated in this particular EIS. Therefore, it is hereby ORDERED that defendant's motion for summary judgment is GRANTED.

1. It is true, as plaintiffs urge, that the regulations of the Council on Environmental Quality, which are mandatory here, Andrus v. Sierra Club, 442 U.S. 347, 357-58 [9 ELR 20390] (1979), do require all environmental impact statements to "include all reasonable alternatives outside an agency's jurisdiction." 40 C.F.R. § 1502.14(c) (1980). However, it simply does not follow that all alternatives outside an agency's jurisdiction need be evaluated. The judicially-created rule of reason has been expressly incorporated in this regulation, so the need for additional legislation, although certainly not dispositive, remains an important factor in determining which alternatives must be considered.