State of New York v. Department of the Army

No. 70 Civ. 3397 (S.D.N.Y. January 13, 1972)

The State of New York seeks by mandamus to compel the Corps of Engineers to comply with NEPA in issuing sewage sludge and dredge spoil dumping permits in the New York Harbor area. The motion is denied, since defendants have complied with § 102(2)(C) by preparing an impact statement, and §§ 102(2)(A) and (B) are not clear commands giving rise to a ministerial obligation. Plaintiff's claims under the New York Harbor Act (33 U.S.C. § 441 et seq.) are denied. The Corp's regulation which requires evaluation of all factors before the issuance of permits for work in navigable waters applies to construction work, not dumping. The dumping regulations do not require that determination be made of the effect on pollution before each permit is issued.

Counsel for Plaintiff
Louis J. Lefkowitz Attorney General
State of New York
80 Centre St.
New York, New York 10013

Counsel for Defendant
United States Attorney, S.D.N.Y.
U.S. Courthouse
Foley Square
New York, New York 10007

[2 ELR 20508]

McLEAN, D.J.

This action is brought by the State of New York for an order of mandamus pursuant to 28 U.S.C. § 1361 requiring the Department of the Army, and more specifically, its Corps of Engineers, to take certain action which plaintiff claims it is required by statute and regulation to take with respect to the issuance of permits for the dumping of "sewage sludge" and "dredge spoil" in the Atlantic Ocean outside New York Harbor. Plaintiff moves for summary judgment. The motion, which has been carefully prepared by both sides, raises interesting questions of environmental protection and of this court's power to deal with that subject in the present context. The relevant undisputed facts are as follows.

The New York Harbor Act of June 29, 1888, 33 U.S.C. § 441, et seq., in substance prohibits dumping of a variety of materials, including dredgings, sludge and acid, in waters within or adjacent to New York Harbor, except in areas prescribed by the Supervisor of New York Harbor, who is an officer of the Corps of Engineers. The Supervisor is authorized to issue permits regulating such dumping.

A regulation issued by the Secretary of the Army entitled "Dumping ground regulations," 3 C.F.R. § 205, specifies a dumping ground for stone and other materials which are dredged from vessel berths and channels, and which are known as "dredge spoil." The regulation specifies another separate dumping ground for sewage sludge. Each dumping ground is approximately twelve miles off the coast of New York in that part of the Atlantic Ocean overlying the continental shelf which is known as "New York Bight." The depth of the water at the spoil dumping ground is approximately 60 feet, and at the sludge dumping ground, 72 feet. The Supervisor has issued permits for dumping dredge spoil at this location since at least 1952. Previously, this material was dumped at other locations. Sewage sludge has been dumped at the present location since 1924.

Permits are issued by the Supervisor on a quarterly basis. They are issued primarily to towing companies which transport the material to the dumping sites. Much of the dredging is done by the Corps of Engineers. It does not trouble to issue dumping permits to itself.

These permits are granted as a matter of routine. No evaluation is made before a permit is issued as to the effect of the dumping authorized by the permit upon the environment. Since 1962 no application for a dumping permit has been refused.

During the fiscal year ended June 30, 1968, a total of 17,110,144 cubic yards of material was dumped in the Atlantic Ocean. Of this total, 8,784,200 cubic yards were dumped at the spoil dumping grounds, and 4,833,730 cubic yards at the sewage sludge dumping ground. The balance was made up of other materials dumped at other locations, the most important of which was 3,117,623 cubic yards of waste acid.

In 1967, the Chief of Engineers requested the Coastal Engineering Research Center of undertake a study of the New York Bight to determine the "immediate and residual effects" of the dumping on water quality, safety, fish, wildlife, conservation, recreation, etc., in the disposal area and areas continguous thereto. The Center asked the Smithsonian Institution to work on the project. The Smithsonian Institution assembled an Advisory Committee which asked the Sandy Hook Marine Laboratory and the Marine Research Center of the State University of New York to make the study. These organizations made reports which were reviewed by the Advisory Committee.

These reports were of a preliminary nature. The Advisory Committee concluded that areas of approximately fourteen square miles in the sludge dumping region and seven square miles in the dredge spoil dumping region have been damaged, and that there is "a danger signal" that "we may already have exceeded safe limits of disposal." The Committee recommended further investigation and study. The Coastal Engineering Research Center has undertaken to make such further studies. When they will be completed does not appear.

The National Environmental Policy Act, 42 U.S.C. § 4321, et seq., was enacted in January 1970. Section 102 of that Act (42 U.S.C. § 4332), directs that "to the fullest extent possible . . . all agencies of the Federal Government shall —

"(A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking which may have an impact on man's environment;

"(B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by subchapter II of this chapter, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations;

"(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on —

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented."

The complaint in this action alleges that defendants have not complied with these provisions or with the provisions of 33 C.F.R. § 209.120, another regulation issued by the Secretary of the Army under the heading "Administrative Procedure," relating to "Permits for work in navigable waters," which in a subdivision (d) entitled "General policies on issuing permits" states:

"The decision as to whether a permit will be issued must rest on an evaluation of all relevant factors, including the effect of the proposed work on navigation, fish and wildlife, conservation, pollution, aesthetics, ecology, and the general public interest. . . ."

The complaint asks this court to order defendants "in connection with the issuance of permits for the dumping of sewage sludge and dredge spoil in the New York Harbor area, to comply with the provisions" of the Act and the regulation. The motion papers on this motion seek the same relief.

After this motion was made, the Corps of Engineers decided to prepare the "environmental statement" referred to in Section 102(C) of the Act and to file a draft of it before November 1, 1971 with the Council on Environmental Quality established by the Act. Plaintiff thereupon withdrew this part of its claim.

The court has been furnished with a draft of the environmental statement which the Corps of Engineers has prepared and has sent for comment to many different federal and to some state agencies which are concerned with environmental protection. [2 ELR 20509] Although this document, being only a draft, is presumably subject to change, it seems proper to say that it discusses at some length the possible environmental impacts of continuing to permit dumping spoil and sludge in the New York Bight, and concludes that "[W]hatever adverse impact may be specifically associated with the permitted offshore disposal cannot be avoided by any reasonable action at this time by the Supervisor of the Harbor." This is because the Corps believes that there is not sufficient information available on which to base any changes in the location or extent of the presently designated dumping areas and because, even if there were such information, "there is no governmental machinery in existence that could reasonably be expected to implement a plan of action to overcome the numerous concomitant problems. . . ."

This conclusion is discouraging to people interested in preventing pollution and protecting the environment. Nevertheless, the future may not be as dark as the draft statement of the Corps of Engineers would indicate.The court has been informed that the Marine Protection Act of 1971 (H.R. 9727) has passed both Houses of Congress, in somewhat different forms, and is now in conference. This bill, if eventually enacted, would vest regulation of ocean dumping in the Administrator of the Environmental Protection Agency who, presumably, will be able to acquire the necessary information and to deal with the "numerous concomitant problems."

Be that as it may, the court is faced with the present necessity of deciding whether mandamus will lie against the Department of the Army and the Corps of Engineers. The question is whether this is an action "to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff," within the meaning of 28 U.S.C. § 1361.

It is well settled that a duty enforceable by mandamus must be ministerial, plainly defined and peremptory. The claim must be clear and certain. The duty sought to be exercised must be a positive command and so plainly prescribed as to be free from doubt. Prairie Band of Pottawatomie Tribe of Indians v. Udall, 355 F.2d 364 (10th Cir. 1966), cert. denied, 385 U.S. 831 (1966).

Courts should not interfere by way of mandamus when the issues are uncertain and "cloudy" and where the "duty to act turns on matters of doubtful or highly debatable inference from large or loose statutory terms. . . ." Panama Canal Co. v. Grace Line, Inc., 356 U.S. 309, 318-19 (1958)

It would be hard to conceive of statutory terms larger, looser or more cloudy than those employed in Sections 102(A) and 102(B) of the Act. A direction to "utilize a systematic interdisciplinary approach," and "to develop procedures . . . which will insure that presently unquantified environmental amenities," may be "given appropriate consideration in decisionmaking," cannot be said to be a plain, clear command giving rise to a definite ministerial obligation. On the contrary, this language seems to the court to be an example of the unfortunate murkiness which envelops so much of the currently prevalent discussion of "ecology."

As far as Section 102(C) of the Act is concerned, defendants have prepared the statement which that section requires, thereby taking much of the sting out of the complaint by conceding the point on which plaintiff has laid its greatest emphasis.

This leaves for consideration only the language heretofore quoted in 33 C.F.R. § 209.120(d). The Corps of Engineers has consistently understood and construed this regulation to apply only to permits for construction work in navigable waters, i.e., piers, dams, seawalls and the like, as the title of the regulation indicates.The Corps has taken any reference to dredging and the disposal of dredge materials to relate only to dredging incident to such construction work.

The administrative interpretation of a regulation as long and cumbersome as this one is entitled to considerable weight. Udall v. Tallman, 380 U.S. 1, 16 (1965)

Moreover, considered as an original proposition, the court believes that this interpretation is correct. Section 209.120, read as a whole and fairly construed, does apply to construction work. The dumping with which we are concerned here is governed not by Section 209.120 but by Section 205. That section contains no provision requiring the Supervisor of the Harbor to make any determination before issuing each permit as to the effect upon pollution of the dumping to be authorized by that permit.

The problem which this case involves is highly important, as the Corps of Engineers itself has recognized by initiating the studies which are still going on. The rate of progress in solving the problem seems exasperatingly slow. It is to be hoped that eventually, whether by means of the Marine Protection Act of 1971 or otherwise, it will be solved. In any event, the court is satisfied that at this stage it should not interfere. On the present record, this is not an appropriate case for mandamus.

Plaintiff's motion for summary judgment is denied.