Durnford v. Ruckelshaus

No. C-72-1406 (N.D. Cal. December 12, 1972)

The court refuses to grant a preliminary injunction to prevent construction of a combination sewage outfall pipe and fishing pier where the Environmental Protection Agency (EPA) and the California Bureau of Outdoor Recreation (BOR) have not acted arbitrarily or capriciously in determining that the project will not "significantly affect the quality of the human environment." Since EPA and the BOR have acted correctly in making this determination, the federal and state agencies funding the project are not required to issue environmental impact statements under the National Environmental Policy Act and the California Environmental Quality Act.

Counsel for Plaintiffs
Thomas R. Adams
Legal Aid Society of San Mateo County
6836 Mission Street
Daly City, California 94014

Counsel for Defendants
Richard Jacobs Deputy Attorney General
6000 State Building
350 McAllister Street
San Francisco, California 94102

John R. Sherman City Attorney, City of Pacifica
City Hall
170 Santa Maria Avenue
Pacifica, California 94044

[3 ELR 20175]

Sweigert, J.

This is an action brought by several residents of the Sharp Park Beach area of the City of Pacifica, California seeking to enjoin the construction of a combination sewage "outfall pipe" and fishing pier project by the City on the grounds that the federal and state agencies, which are funding the project, have not prepared environmental impact statements required by the National Environmental Policy Act (hereinafter "NEPA") (42 U.S.C. § 4332 (2) (e)) and the California Environmental Quality Act (hereinafter "CEQA") (Cal. Pub. Res. Code §§ 21100 and 21150).

The action is now before the court on plaintiffs' motion for a preliminary injunction.

The record shows the following undisputed facts:

The City of Pacifica has undertaken the construction of a sewage "outfall pipe", which is part of a larger sewage treatment complex, whereby treated sewage wastes are to be carried from a sewage treatment plant¹ to the ocean floor for discharge. The "outfall pipe" is to enter the ocean at Sharp Park Beach and is to be housed for some 1,200 feet into the ocean by a concrete, citybuilt fishing and recreation pier.

The sewage treatment plant and outfall pipe are funded by a $2,833,680 grant from the Federal Environmental Protection Agency (hereinafter sometimes referred to as "EPA"). The fishing and recreation pier, which will house the outfall pipe, is being financed by a $510,000 grant from the Land and Water Conservation Fund of the United States Department of the Interior, Bureau of Outdoor Recreation (hereinafter sometimes referred to as "BOR"), and by a matching grant from the California Department of Fish and Game, Wildlife Conservation Board.

The National Environmental Policy Act, 42 U.S.C. § 4332 (2) (c), directs that, to the fullest extent possible, Federal Government agencies shall prepare environmental impact statements and shall comply with certain related procedures on "major federal actions significantly affecting the quality of the human environment." (emphasis added)

Plaintiffs, who allege in their complaint that they are residents or property owners in the vicinity of the proposed outfall pipefishing pier project, claim that the project will congest, disrupt, commercialize and otherwise change the character of what is now a quiet, residential neigborhood and will increase automobile traffic and concommitant noise, dust and air pollution in the area. (See, Affidavit of Neal J. Martin, attached to the Complaint.) They contend that this change in their neighborhood constitutes a significant effect on the quality of the human environment, within the meaning of NEPA, and that, therefore, the EPA and the BOR were each required to prepare environmental impact statements and to comply with the related requirements of the Act prior to allocating funds for the project.

The federal defendants admit that no impact statements have been prepared by either of the two federal agencies involved; they contend however, that such action was not necessary since both the EPA and the BOR had determined, in accordance with their respective regulations implementing NEPA, that the project would not have a significant effect on the quality of the human environment.

It is fairly well established that on review of agency determinations that a project does not significantly affect the environment, within the meaning of NEPA, the applicable standard of judicial review is whether the federal agency has acted arbitrarily or capriciously. See, Goose Hollow Foothills League v. Rommey, 334 F. Supp. 877 (D. Ore., 1971); Citizens for Reid State Park v. Laird, 336 F. Supp. 783 (D. Maine, 1972); see, generally, Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1970). As stated by the Supreme Court this standard requires a determination by the court of whether the agency's decision —

". . . was based on a consideration of the relevant factors and whether there has been a clear error of judgment (citations omitted). . . Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency." Citizens to Preserve Overton Park, supra, at p. 416.

The record here shows that in June, 1971, the EPA conducted a review of the proposed sewage treatment plant and outfall project which led it to conclude that the project would in no manner significantly affect the environment. (Affidavit of Dingwall, filed November 15, 1972).

Subsequent to that determination, the EPA, in January 1972, adopted new regulations implementing NEPA which set forth procedures for determining whether or not environmental impact statements should be prepared on EPA projects, 32 CFR part 6 (found at 37 F.R. No. 13, pp. 879-85).

Under these new procedures, the EPA is required to make a thorough study of activities and proposed or recommended agency actions, called an "environmental assessment", for the purpose of determining whether a significant impact is anticipated and an environmental impact statement required. 32 CFS § 6.5 (a). The regulations provide guidelines for making this determination, which are to the effect that the term "significant effect on the quality of the human environment" encompasses both adverse and beneficial effects and includes environmental consequences of both a primary and secondary nature; that primary effects should not be given greater consideration than secondary effects; and, that an impact statement should be prepared when the project is likely to be or is highly controversial. 32 CFR 6.21 (a), (c) and (d). The regulations provide further that, if the environmental assessment indicates no significant impact upon the quality of the human environment by the proposed action, a "negative declaration" to that effect shall be prepared and circulated by the EPA, and an "environmental appraisal" supporting the negative declaration, and describing the proposed activity and its impact, shall be prepared and kept on record by the EPA. 32 CFR § 6.31 (a) and (b).

The record here indicates that the EPA in June, 1972, upon receiving indications that the fishing pier - outfall pipe project was the subject of controversy in the community, reopened its review of the project; that it then conducted a thorough study, or "assessment", of the environmental effects of the project in accordance with the new regulations implementing NEPA; that this assessment was based upon a review of various governmental [3 ELR 20176] and private reports concerning the project as well as upon a physical inspection of the project site and meetings with community representatives undertaken by the EPA official who conducted the study; that the assessment indicated that the project would not have a significant effect upon the quality of the human environment within the meaning of NEPA; that the assessment process was conducted in accordance with the above regulations and in substantial compliance with the guidelines contained therein; that on the basis of the conclusions drawn from the assessment process, the EPA prepared and circulated a "negative declaration" to the effect that no environmental impact statement under NEPA would be prepared; that an environmental appraisal, supporting the conclusion in the negative declaration, was prepared and is on file with the EPA.²

We therefore tentatively find, for the limited purpose of ruling upon plaintiffs' application for a preliminary injunction, that the EPA's determination that the project would not significantly affect the quality of the human environment was not arbitrary and capricious and was in substantial compliance with EPA regulations implementing NEPA.

The Bureau of Outdoor Recreation (BOR) has also implemented procedures (although not as detailed as those adopted by the EPA) governing the preparation of environmental impact statements pursuant to NEPA. Bureau of Outdoor Recreation Manual, Part 705, ch. 1, published at 37 F.R. No. 62, at pp. 6501-04). These procedures provide that each BOR Regional Director has the responsibility of determining which actions require preparation of environmental impact statements; that the clause 'major federal actions significantly affecting the human environment" is to be construed broadly, keeping in mind the cumulative impact of the proposed action and of further related actions that are contemplated; and, that, even though the impact of such actions may be localized, if the environment is or may be significantly affected, an environmental impact statement should be prepared. Manual, supra, §§ .4A & .5A.

It is further provided that BOR personnel are to bear in mind the following factors in determining whether an action will significantly affect the environment: "(1) The effects of decisions regarding a number of apparently minor projects may be cumulatively substantial. (2) Direct and indirect effects of decisions on the quality of the human environment. (3) Recognition that, to some degree, most actions will have both beneficial and detrimental effects. In general, significant effects include those that: a) degrade the quality of the environment, b) curtail the range of beneficial uses of the environment, or c) serve short-term to the disadvantage of long-term environmental goals." Manual, supra, at § .5A.

The record shows that a determination was made by the Regional Director for the Pacific Southwest Region of the BOR, that the proposed fishing pier project would not have a significant effect on the quality of the human environment. (See, Exh. C, attached to federal defendants' memorandum, filed September 26, 1972). This determination was based on the Regional Director's review of the pier project proposal and grant application, and upon staff reports on the project (including that of Winifred Myers, who had conducted a physical inspection of the project site) which indicated to him that the pier would have restrooms, benches, lights, drinking water, fish cleaning facilities, and trash receptacles; that the site was already being used for fishing but contained no improvements; that the area in which the project was to be located was littered and congested by erratically parked vehicles driven by fishermen and others; and, that the project would upgrade the location without changing the existing use of the area. (id.).

On the record before us we are satisfied, and therefore tentatively find for preliminary injunction purposes, that the BOR determination that the fishing pier would not significantly affect the quality of the human environment was in substantial compliance with BOR regulations implementing NEPA and was not arbitrary or capricious.

We find, therefore, that, as to the federal defendant, plaintiffs have failed to demonstrate a likelihood of success on the merits justifying the issuance of a preliminary injunction herein.

Plaintiffs also seeks a preliminary injunction against the state defendants on the ground of alleged violations of the California Environmental Quality Act by those defendants and seek an adjudication on the matter by this court under the doctrine of pendent jurisdiction.

Since we find little likelihood of success on the merits as against the federal defendants, and, since we conclude on the contrary, that the federal defendants herein can, on the present record, probably prevail on a motion for summary judgment, we exercise our discretion to decline pendent jurisdiction over the state and local defendants (See, United Mine Workers v. Gibbs, 383 U.S. 715 (1965)), and we therefore dismiss plaintiffs' claims against the state and local defendants under the California Environmental Quality Act without prejudice to plaintiffs presenting such claims to the California courts.

Accordingly, it is the order of this court that plaintiffs' motion for a preliminary injunction should be, and the same is hereby, DENIED.

1. The sewage treatment plant, itself, is not a part of this action. (See Stipulation and Order, filed October 16, 1972).

2. See affidavit of Collins, and exhibits attached thereto, filed November 15, 1972; see, also, Exh. 3, attached to Exh. B of the federal defendants' memorandum, filed September 20, 1972).