Pacific Legal Foundation v. Watt

Nos. 82-5459 -6013 (9th Cir. March 9, 1983)

The court rules that the Endangered Species Act (ESA) does not require the Environmental Protection Agency (EPA) to reinitiate consultation with the Fish and Wildlife Service (FWS) upon approving an insubstantial modification to EPA-funded sewage treatment projects for Los Angeles. Conducting a de novo review of the district court's grant of summary judgment against EPA, 13 ELR 20109, the court first rules that a Pacific Legal Foundation member had shown a sufficient nexus with the sites of the proposed projects to confer standing. After holding that EPA's compliance with the district judge's order to renew the consultation process did not render the case moot, the court rules that the ESA did not require EPA to reinitiate consultation upon modifying the Los Angeles Hyperion sewage treatment project. The change was insubstantial and the concurrence of the FWS that further consultation was unnecessary is entitled to deference. As to other components of the project, the lower court erred in granting summary judgment, since they either had not progressed beyond the planning stage or there was a triable issue of fact as to whether they were still under active consideration. The court vacates the district court's judgment on a Federal Water Pollution Control Act permit issue, which both parties agreed was moot, and affirms the ruling that res judicata bars a National Environmental Policy Act claim.

Counsel for Plaintiff
Ronald A. Zumbrun, Robert K. Best, David M. Shell
Pacific Legal Foundation
455 Capitol Mall, Suite 600, Sacramento CA 95814
(916) 444-0154

Counsel for Defendants
David C. Shilton, Dean K. Dunsmore
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4519

Roger West, Ass't U.S. Attorney
312 N. Spring St., Los Angeles CA 90012
(213) 688-2461

Mary Ann Muirhead
Office of Regional Counsel
Environmental Protection Agency, 215 Fremont St., San Francisco CA 94108
(415) 974-8030

Before Chambers, Farris, and Aguilar,^* JJ.

[13 ELR 20392]

Per curiam:

I. Introduction

The Pacific Legal Foundation contends that the Environmental Protection Agency and other federal officials and agencies have failed to satisfy the requirements of several environmental statutes with respect to a series of projects designed to eliminate the discharge of sewage sludge into the Pacific Ocean. The district court granted the Foundation summary judgment on all claims except that founded on the National Environmental Policy Act, which it dismissed, and issued several injunctions.

II. Standard of Review

"This court reviews de novo decisions granting summary judgment," Bank of California, N.A. v. Opie, 663 F.2d 977, 979 (9th Cir. 1981), applying "the same standard as that binding on the trial court," National Industries, Inc. v. Republic National Life Insurance Co., 677 F.2d 1258, 1265 (9th Cir. 1982). We affirm a grant of summary judgment "only if it appears from the record, after reviewing all evidence and factual inferencesin the light most favorable to the appellant, that there are no genuine issues of material fact and that the appellee is entitled to prevail as a matter of law." Heiniger v. City of Phoenix, 625 F.2d 842, 843 (9th Cir. 1980).

In addition, where, as here, the district court adopts with relatively minor changes findings of fact and conclusions of law drafted by prevailing counsel, we review the lower court's rulings with heightened scrutiny. Id. at 844 n.4; Garter-Bare Co. v. Munsingwear, Inc., 622 F.2d 416, 421-22 (9th Cir. 1980).

III. Standing

We reject the federal defendants' contention that the district court erred by not granting their motion to dismiss for lack of standing. Since the Foundation alleges no injury to itself qua foundation, its claim to standing is coextensive with that of its members. Warth v. Seldin, 422 U.S. 490, 511 (1975); Pacific Legal Foundation v. Gorsuch, 690 F.2d 725, 729-31 [13 ELR 20105] (9th Cir. 1982). The affidavit of Foundation member John B. Kilroy establishes sufficient nexus with the sites of the proposed projects to meet the constitutional minima of injury, Warth, 422 U.S. at 501; Sierra Club v. Morton, 405 U.S. 727, 734 [2 ELR 20192] (1972), causal connection, Duke Power Co. v. Carolina [13 ELR 20393] Environmental Study Group, 438 U.S. 72 [8 ELR 20545] (1978), and redressability, id. at 75 n.20. We impose a relatively low threshold with respect to environmental litigation in general and the Endangered Species Act in particular. See Sierra Club, 405 U.S. at 734; Gonzales v. Gorsuch, 688 F.2d 1263, 1266-67 [13 ELR 20072] (1982); Palila v. Hawaii Dept. of Land & Natural Resources, 471 F. Supp. 985, 991 & n.20 [9 ELR 20426] (D. Hawaii 1979), aff'd, 639 F.2d 495 [11 ELR 20446] (9th Cir. 1981).

IV. Endangered Species Act

A. Hyperion Energy Recovery System

Because the Agency has complied with the district court's injunction by reinitiating consultation before releasing funds for the Hyperion Energy Recovery System, the Foundation argues that the controversy as to this project is now moot. We disagree. Mere obedience to a judgment does not render a case moot. Mancusi v. Stubbs, 408 U.S. 204, 205-07 (1972); Bakery Drivers v. Wagshal, 333 U.S. 437, 442 (1948); Dakota County v. Glidden, 113 U.S. 222, 224 (1885). Nothing else has changed between the parties to assure that the dispute will not recur, nor have other interim events altered the parties' adverse posture. See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979). Under these circumstances, the Foundation has not met its heavy burden of demonstrating mootness. See United States v. W. T. Grant, 345 U.S. 629, 632-33 (1953).

The record convinces us that the district judge erred in ruling that the consultation provisions of the Endangered Species Act required the Environmental Protection Agency to reinitiate consultation with designated federal agencies upon modifying the Hyperion project. In the absence of substantial change in a project, as here, the statute does not compel fruitless duplication of the prior exchange. The Agency's action in securing the Fish and Wildlife Service's concurrence that no further formal consultation was necessary was abundantly cautious.

Deference is due the view of the consulted agency that the prior determinations sufficed. North Slope Borough v. Andrus, 642 F.2d 589, 610 [10 ELR 20832] (D.C. Cir. 1980). We decline to adopt the interpretation of the statute urged by the Foundation. Cf. Andrus v. Sierra Club, 442 U.S. 347, 358 [9 ELR 20390] (1978) (construction of National Environmental Policy Act to require preparation of environmental impact statement to accompany appropriation requests would "'trivialize'" statute); Pacific Legal Foundation v. Andrus, 657 F.2d 829, 838 [11 ELR 20871] (6th Cir. 1981) (construction of NEPA to require preparation of environmental impact statement to accompany listing of endangered species would make statute "obstructionist tactic").

B. Terminal Island Treatment Plant

As the Foundation now concedes, the district court improperly granted the Foundation summary judgment on its claim that the Terminal Island project involved a Step 2 grant subject to environmental requirements. The record fails to establish that the demonstration compositing project involved more than planning. The uncontested facts adequately show that it did not. The district court's imposition of Endangered Species Act consultation requirements is unwarranted at this stage. Cf. 40 C.F.R. § 6.502(b)(2) (exempting Step 1 grants under treatment works grant program from National Environmental Policy Act requirements).

C. Los Angeles Airport composting project

It is not disputed that the district court improperly granted the Foundation summary judgment on its claim that the Agency needed to fulfill Endangered Species Act responsibilities with respect to a composting project near Los Angeles Airport. The record reveals a triable issue of fact as to whether this project remains under active consideration. Even assuming that it does, however, the district court did not identify nor do we perceive any basis in law or logic for its holding that the consultation requirements of the Endangered Species Act apply to a project which an agency has not yet decided to implement.

D. Other Los Angeles County and Orange County projects

The district court also erred by granting summary judgment to the Foundation on its claim that the Agency failed to comply with the consultation requirements of the Endangered Species Act with respect to sludge management projects in Los Angeles and Orange Counties. The ruling presumably referred to sites mentioned in the comprehensive environmental impact report and included in the amended complaint. The Foundation did not allege nor does the record indicate that the Agency has approved or funded any project on these sites. The court's imposition of statutory duties was unwarranted.

V. Clean Water Act

The parties agree that their dispute over the Agency's duty to issue the city of Los Angeles a new National Pollutant Discharge Elimination System permit is moot. Appellant's Opening Brief at 45; Appellee's Brief at 14. We therefore vacate the district court's judgment insofar as it treats this issue and direct it to dismiss the cause to the same extent. See Great Western Sugar Co. v. Nelson, 442 U.S. 92, 93 (1979) (per curiam).

VI.National Environmental Policy Act

The Foundation also challenges the adequacy of the final environmental impact statement for the comprehensive sludge management program on National Environmental Policy Act grounds. We affirm the district court's ruling that res judicata principles bar this claim. See Kilroy v. Gorsuch, Civ. No. 77-0521-HP (C.D. Ca. May 25, 1982).

VII. Conclusion

The judgment insofar as it addresses the Endangered Species Act claims is reversed and remanded with direction to the district court to enter judgment on behalf of defendants. The judgment insofar as it addresses the Clean Water Act claim is vacated as moot. The judgment insofar as it addresses the National Environmental Policy Act claim is affirmed.

Affirmed in part, reversed in part, and vacated in part.

* The Honorable Robert P. Aguilar, United States District Judge for the Northern District of California, sitting by designation.