Minnesota Environmental Control Citizen's Ass'n. v. Atomic Energy Comm'n.

No. 4-72 Civ. 109 (D. Minn. July 31, 1972)

In a suit for injunctive relief against the development and operation of two nuclear plants for failure to file an environmental impact statement in conformity with the National Environmental Policy Act (NEPA), the court denies defendants' motion to dismiss and plaintiffs' motion for summary judgment. In denying the defense motion, the court holds that (1) there is federal question jurisdiction, (2) plaintiffs need not exhaust remedies, (3) the doctrine of sovereign immunity is inapplicable, and (4) plaintiffs have standing. In denying summary judgment, the court retains jurisdiction and concludes that, although continued construction and the issuance of operating and construction permits constitute "major federal action" within the meaning of § 102(2) (C) of NEPA, injunctive relief pending the filing of an adequate environmental impact statement is inappropriate in view of the expense of delay.

Counsel for Plaintiffs
Howard Vogel
Michael Wolff
814 Flower Exchange Building
Minneapolis, Minnesota 55415

Counsel for Defendants
Steven Talmer Assistant U.S. Attorney
596 U.S. Courthouse
Minneapolis, Minnesota

[3 ELR 20034]

Lord, J.

This is an action brought by plaintiffs under the National Environmental Policy Act, 42 U.S.C. 4321 et seq. to enjoin further development and operation of two nuclear generating plants operated by defendant Northern States Power Company because of the alleged failure of the Atomic Energy Commission defendants to follow the requirements of the Act.

The Atomic Energy Commission isued a construction permit for the Monticello generating plant in June, 1967. A provisional operating permit was issued in September, 1970. In January, 1971, full-power operation of the Monticello plant was authorized under the provisional operating permit.

Plaintiffs assert that the aforementioned activity, which is said to constitute "major federal action" under NEPA, took place without the full scale environmental review mandated by NEPA. The defendants, while apparently acknowledging that NEPA has been violated, maintain that they have taken cognizance of environmental effects and thus have complied with the "spirit . . . of the Act.¹

The National Environmental Policy Act was signed into law on January 1, 1970. Since that time, it has been apparent that the AEC has complied with the Act only grudgingly; see Calvert Cliffs Coordinating Committee v. AEC, 449 F.2d 1109 (D.C. Cir. 1971)² After the first set of AEC regulations promulgated under the National Environmental Policy Act were disapproved in the Calvert Cliffs decision, the AEC issued new regulations in Appendix D. to 10 C.F.R. Part 50 setting forth guidelines to be followed by the AEC for achieving compliance with NEPA. Pursuant to these regulations, the AEC on November 18, 1971, made a determination not to suspend operation of the Monticello facility pending completion of the environmental review required by NEPA. On December 23, 1971, plaintiff Minnesota Environmental Control Citizens Association (MECCA) filed a timely objection to the AEC decision not to suspend and requested a public hearing on this issue. On May 3, 1972, nearly four and one-half months later, the AEC responded to the MECCA petition by granting a hearing on an interim shutdown. However, [3 ELR 20035] no date has been set for such hearing, and it appears that the issue will be consolidated for hearing on the full-power, 40-year license and hearing on the full environmental review. Thus, the delay in hearing MECCA's petition has resulted in a denial of the interim relief MECCA requested and has rendered meaningless any hearing on the issue raised by MECCA, that is, whether the plant should be shut down pending the environmental review.

In early June, when this case was heard on plaintiffs' motion for summary judgment and defendants' motions to dismiss, the AEC produced a first draft pf the proposed environmental statement required by NEPA. This is the first step in the production of the full environmental statement; the first draft is to be revised after comments are received from the public and other governmental agencies and interested parties, and after any hearings the AEC may hold on the environmental statement.

The other nuclear generating plant that is the subject of this lawsuit is the NSP facility at Prairie Island, Minnesota. A construction permit was issued for Prairie Island in June, 1968, and construction was commenced shortly thereafter. Defendant NSP filed a request for operating licenses for Prairie Island in February, 1971. Notice of a hearing on this application has not been given to date. On Noember 26, 1971, the AEC, pursuant to its Appendix D. regulations cited above, determined that construction activities need not be suspended pending completion of the NEPA environmental review. This determination was published in the Federal Register on December 3, 1971 (36 F.R. 23086). However, no request by MECCA or others was made for a hearing on this determination.

Environmental review on the Prairie Island facility is currently in process. However, no first draft environmental statement has been published nor have any hearings been scheduled on this matter.

Before examining the merits of plaintiffs' claims under NEPA the Court first turns to defendants' motions to dismiss.

Jurisdiction is established pursuant to 28 U.S.S. 1361 and 28 U.S.C. 1331. Izaak Walton League v. Schlesinger, 337 F. Supp. 287 (D.D.C. 1971). Plaintiffs' basiccontention is that, in failing to comply with the terms of NEPA, the AEC defendants have acted outside their statutory authority. In such situation, mandamus clearly appropriate, Peoples v. Department of Agriculture, 427 F.2d 561 (D.C. Cir. 1970), and thus the District Court has jurisdiction to review such contentions. This action does not seek review of final agency action, but only a determination of whether the defendants have complied with the law. See Kalur v. Resor, 335 F. Supp. 1 (D.D.C. 1971); Murray v. Vaughn, 300 F. Supp. 688 (D.R.I. 1969). Nor do plaintiffs seek a determination of the validity of the AEC regulations, Appendix D. to 10 C.F.R. Part 50 thus 28 U.S.C. 2342 is inapplicable here. See Izaak Walton League v. Schlesinger, supra.

This Court concludes, as did the court in Kalur, supra, that jurisdiction is established as to all defendants by virtue of the general federal question jurisdictional statute, 28 U.S.C. 1331. Further it appears that plaintiffs' good faith allegation of amount in controversy exceeding $10,000 is sufficient to sustain such jurisdiction. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283 (1937). Illinois v. City of Milwaukee U.S. , 92 S. Ct. 1385 (1972).

The Court also concludes that plaintiffs need not exhaust administrative remedies on two grounds. First, as noted above, it was apparent in plaintiff MECCA's attempt to seek review of the AEC determination that such attempt was futile, and as a practical matter, plaintiffs have no administrative remedies. And second, this clearly is a situation where plaintiffs need not exhaust administrative remedies because their contention is that the agency acted outside its statutory authority. In Skinner & Eddy v. United States, 249 U.S. 557 (1919) a shipper sued to enjoin a rate increase ordered by the Interstate Commerce Commission claiming that the order violated the Interstate Commerce Act. The court held that in such a situation the shipper did not need to exhaust administrative remedies even though they were available. The rationale is that where administrative agency action and procedure exceeds statutory authority, and the issues do not involve agency discretion or expertise, the plaintiff need not exhaust administrative remedies. See also: Allen v. Grand Central Aircraft Co., 347 U.S. 535 (1954); McKart v. United States, 395 U.S. 185 (1969).

As to the AEC defendants, the action is not barred by the sovereign immunity doctrine. The allegation that defendants' acts are contrary to law brings this action within the exception to the doctrine of sovereign immunity recognized by the Supreme Court in Dugan v. Rank, 372 U.S. 609 at 621 (1963). See also, Kalur v. Resor, supra.

Finally, there is no question that plaintiffs have the requisite interest in the subject matter of this litigation to confer upon them standing to sue. Sierra Club v. Morton, U.S. , 92 S. Ct. 1361 (1972)

II.

The National Environmental Policy Act, 42 U.S.C. 4321, et seq. requires that a detailed statement of environmental impact be prepared prior to any major federal action. The key section of the Act, which the Court is here called upon to interpret, provides that all agencies of the federal government, including the Atomic Commission, shall:

(A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and the 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 Title II of this Act, 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.

Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by Section 552 of Title 5, United States Code, and shall accompany the proposal through the existing agency review processes;

(D) study, develop, and describe appropriate alternatives to recommend courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources; . . . . Section 102(2).

It is clear that the Monticello and Prairie Island facilities were on-going projects at the time NEPA took effect. With respect to Monticello, however, there were permits issued after the enactment of NEPA that clearly constitute major federal action. As for Prairie Island, the continued construction, under the supervision of the Atomic Energy Commission, must be deemed to be major federal action within the meaning of the Act. And further, a permit for an operation has been applied for, and that [3 ELR 20036] will constitute major federal action. The Council on Environmental Quality has set forth guidelines for ensuring compliance with NEPA with respect to on-going projects. Section 11 of the Council's Guidelines provides:

Application of Section 102(2) (C) procedure to existing projects and programs. To the maximum extent practicable the section 102(C) (2) procedure should be applied to further major Federal actions having a significant effect on the environment even though they arise from projects or programs initiated prior to the enactment of the Act on January 1, 1970. Where it is not practicable to reasses the basic course of action, it is still important that further incremental major actions be shaped so as to minimize adverse environmental consequences. It is also important in further action that account be taken of environmental consequences not fully evaluated at the onset of the program.

While NEPA by its terms has been held not to apply retroactively to projects begun before January 1, 1970, federal involvement after that date must be proceded by the scrutiny of an environmental impact statement. Texas Committee on Natural Resources v. United States, __ F. Supp. __ (W.D. Tex. 1971), Environment Reporter 1303, San Antonio Conservation Society v. Texas, 446 F.2d 1013 (5th Cir. 1971), Environmental Defense Fund v. Corps of Engineers, 325 F. Supp. 749 (E.D. Ark. 1971). It is abundantly clear that plaintiffs and the general public were entitled to a full environmental review "forthwith" following the enactment of NEPA, Calvert Cliffs, supra at p. 1120, in order to ensure that the Monticello and Prairie Island projects would not become developed to the point that the environmental review would be meaningless or developed to the point that alternative technology for the protection of the environment would be impracticable to install.

More than two and one-half years have passed since the enactment of NEPA and plaintiffs are only now getting the environmental review they have all along been entitled to. This Court believes that plaintiffs are entitled to have the Atomic Energy Commission consider the alternatives to the Monticello and Prairie Island projects as they existed immediately after the enactment of NEPA. Section 2 of the Council on Environmental Quality Guidelines requires that the NEPA environmental review take place "as early as possible . . . in order to avoid to the fullest extent practicable undesirable consequences for the environment. . . ." Because defendants have delayed this environmental review, they must now consider all environmental options that existed just after January 1, 1970, in addition to the options now available that are under review. The defendants cannot take the position that time and further development of these projects has foreclosed some options that would have been available when NEPA was enacted. As the Court of Appeals for the District of Columbia stated in the Calvert Cliffs decision, supra:

(T)he section 102 duties are not inherently flexible. They must be complied with to the fullest extent, unless there is clear conflict of statutory authority. Considerations of administrative difficulty, delay or economic cost will not suffice to strip the section of its fundamental importance. 449 F.2d at p.1115.

See also Ely v. Velde, 451 F.2d 1130 (4th Cir. 1971). This Court takes no position on whether these two nuclear projects had reached the stage of development in early 1970 that it was not practicable to reassess the basic course of action. This decision would best be made after completion of the NEPA environmental review. It is quite clear, however, that expeditious completion of the environmental review is required. If the basic course of action must be altered or abandoned, it is most feasible to do so at an early date in order to minimize economic costs. The past history of the AEC's handling of the environmental review of these nuclear facilities, particularly Monticello, indicates that the AEC's methods threaten to delay completion of the NEPA review to a point when reconsideration of the basic course of action may no longer be feasible and the so-called "energy crisis" will have led to a "blackout of environmental consideration." See Calvert Cliffs, supra. at p. 1122.

The procedures described in NEPA are "nothing less than a mandate," National Helium Corp. v. Morton, 326 F. Supp. 151 (D. Kans. 1971) which establish a "strict standard of compliance" and "judicially enforceable duties;" Calvert Cliffs, supra, at p. 1115. Thus this Court will continue jurisdiction of this case to ensure that full environmental review will be made in accordance with NEPA, as explicated above.

This Court disagrees with plaintiffs that NEPA mandates an injunction closing down the two projects pending final NEPA review, although such relief was granted in other circumstances in Izaak Walton League v. Schlesinger, supra. See also, Arlington Coalition v. Volpe, __ F.2d __, (4th Cir. 1972). Nothing in the Act or the Council on Environmental Quality Guidelines requires that all ongoing projects be stopped pending environmental review. To the contrary, the Council on Environmental Quality Guidelines, in Section 11 quoted above, states that for ongoing projects the section 102(C) (2) procedures should be applied "to the maximum extent practicable." In this case, the guidelines do not require suspension of these projects to protect the plaintiffs' interests. However, to ensure that plaintiffs' right to a full and meaningful review will not be irretrievably lost, the Court will retain jurisdiction of this matter. Defendants have proceeded at their own peril with these projects since early 1970 without a full environmental review. If these delays make backfitting of technological changes more expensive now than they would have been in 1970, such additional expense will not justify their omission.³ The Court's jurisdiction will continue in order to ensure that plaintiffs are not foreclosed from any rights they have to a full and meaningful environmental review under NEPA. In accordance with the foregoing memorandum,

IT IS ORDERED that defendants' motions to dismiss are denied.

IT IS FURTHER ORDERED that plaintiffs' motion for summary judgment is denied.

The Court will continue jurisdiction of the matter for the purposes set forth above.

1. A contention to which this Court can attach no legal significance.

2. In Calvert Cliffs, supra, the Court of Appeals for the District of Columbia said: We believe that the Commission's crabbed interpretation of NEPA makes a mockery of the ACT. 449 F.2d at p. 1117.

3. As stated by the court in Calvert Cliffs, supra:

The procedural duties, the duties to give full consideration to environmental protection, are subject to a . . . strict standard of compliance. . . . If 'irreversible and irretrievable commitment(s) of resources' have already been made, the license hearing (and any public intervention therein) may become a hollow exercise. This hardly amounts to consideration of environmental values 'to the fullest extent possible.' 449 F.2d at p. 1128.