Sierra Club v. Sargent

Civil No. 249-71C2 (W.D. Wash. March 16, 1972)

Plaintiffs sought to enjoin the issuance of a Refuse Act Permit by the Army Corps of Engineers to the Atlantic Richfield Company for discharges into the Puget Sound from Arco's oil refinery at Cherry Point. Plaintiffs argued both that the issuance of the permit was a major federal action significantly affecting the environment and that granting the permit would have effects beyond water quality, thus invoking the Corp's regulations which require it to prepare an environmental impact statement in such circumstances. The Corps argued that the Refuse Act Permit Program was exempted from the reach of the National Environmental Policy Act since it is an environmentally protective regulatory activity; that preparing an impact statement would be duplicative of effort; and that granting the permit would have effects only on water quality. Without a written opinion stating its grounds, the court denied the defendants' motion for summary judgment and ordered the Corps to prepare an environmental impact statement.

Counsel for Plaintiffs
Thomas H. S. Brucker
Stern, Gayton, Neubauer & Brucker
Hoge Building, Second Floor
Second Avenue and Cherry Street
Seattle, Washington 98104

John D. Hoffman
Sierra Club Legal Defense Fund
311 California Street
San Francisco, California 94104

Alvin J. Ziontz
Ziontz, Pirtle & Morisset
3101 Seattle-First National Bank Bldg.
Seattle, Washington 98104

Counsel for Defendants
Martin Green
Thomas C. Lee
Department of Justice
Washington, D.C. 20530

[2 ELR 20131]

Lindberg, J.

ORDER

THIS MATTER having come before this Court, Honorable William J. Lindberg presiding, and a consolidated hearing having been held on the 24th day of February 1972, on the Defendants' and Plaintiffs' motions for summary judgment, and upon consideration of these cross motions for summary judgment, including the supporting memoranda and affidavits, and for the reasons and with the qualifications set forth below, it is on this 16th day of March 1972,

ORDERED, that Defendants' motion for summary judgment be and hereby is DENIED, and is further

ORDERED that Plaintiffs' motion for summary judgment be and hereby is GRANTED IN PART, insofar as it is further

ORDERED, ADJUDGED AND DECREED, that defendants are required by the National Environmental Policy Act and Section 102(2)(c) of said Act, 42 U.S.C. § 4332(2)(c), 83 Stat. 853, to prepare and file a statement, as described in that section, in connection with the issuance of Department of the Army Permit Number 071-OYB-3-000001, issued to Atlantic Richfield Company for the discharge of treated waste waters into a navigable body of water of the United States, which permit is issued under Section 13 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 407, 30 Stat. 1152; and further that defendants shall prepare and file with this Court on or before the sixtieth (60th) day following the effective date of this ORDER a reasonably detailed outline of the statement described and required by Section 102(2)(c) of the National Environmental Policy Act; but, in the event of a timely appeal from this ORDER, the operation and effect of this ORDER shall be suspended until the final disposition of that appeal.

PROVIDED that this Court in this ORDER is not ruling on the scope of considerations which must be studied or evaluated by the Corps of Engineers in connection with the preparation of said statement and embodied within the statement as finally prepared, and PROVIDED FURTHER, that this Court in this ORDER is [2 ELR 20132] ruling only that the issuance of Department of the Army Permit Number 071-OYB-3-000001 appears to be major federal action which may significantly affect the human environment within the meaning of Section 102 of the National Environmental Policy Act, and is not ultimately determining on the merits whether the issuance is major federal action or whether the issuance will significantly affect the human environment.

This Court is of the opinion that this ORDER is appealable as a matter of right under Title 28, United States Code, Section 129 2(a)(1). Should it be determined that this ORDER is not appealable as a matter of right, however, this Court hereby certifies, pursuant to Section 129 2(b) of the same Title, that it is also of the opinion that this ORDER involves a controlling question of law as to which there is substantial ground for a difference of opinion and that an immediate appeal from this ORDER may materially advance the ultimate determination of the litigation.