Sherry v. Algonquin Gas Transmission Co.

No. 72-1181-J (D. Mass. October 31, 1972)

A suit to enjoin the construction and operation of a synthetic gas refinery is dismissed as premature. The court refuses to reach the question whether the National Environmental Policy Act (NEPA) is a jurisdictional statute. The court concludes that it may not review an initial decision by a Federal Power Commission hearing examiner since it does not constitute final agency action.

Counsel for Plaintiffs
Richard N. La Salle
866 County Street
Somerset, Massachusetts 02726

Counsel for Defendants
Charles McGee
1145 19th Street, N.W.
Washington, D.C. 20036

Terry P. Segal Assistant U.S. Attorney
U.S. Court House
Boston, Massachusetts 02109

Platt W. Davis III Staff Counsel
Federal Power Commission
441 G Street, N.W.
Washington, D.C. 20001

[3 ELR 20228]

Julian, J.

This case is before the Court on defendants' motions to dismiss the complaint. Jurisdiction is asserted to lie pursuant to the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321, 4331-4335, and 4341-4347. Plaintiffs are residents of Fall River, Bristol County, Massachusetts, who seek inter alia to enjoin the construction and operation of a proposed synthetic gas refinery in Freetown, Bristol County, Massachusetts, by defendant Algonquin SNG, Inc., including tanks for the storage of naphtha and propane at a docking site on the easterly side of the Taunton River in Fall River, Massachusetts, in close proximity to their homes.

The Court held a hearing on the motions to dismiss on June 8, 1972.

Each defendant challenges this Court's jurisdiction over the subject matter of the complaint, contending that the National Environmental Policy Act creates no cause of action maintainable by these plaintiffs.

Although entertaining considerable doubt that the National Environmental Policy Act is a jurisdictional statute,¹ the Court deems it unnecessary to rule upon that question because, regardless of jurisdiction, the complaint fails to state a claim upon which relief can be granted.² Plaintiffs' request that the Court review an initial decision of a hearing examiner of the Federal Power Commission, and declare that decision null and void, is premature. Until proceedings are complete and until the agency has acted, judicial review is unwise, and unauthorized by statute or judicial decision.

Accordingly, it is ordered that the complaint be, and it is hereby, dismissed for failure to state a claim upon which relief can be granted.

1. See San Francisco Tomorrow v. Rommey, 342 F. Supp. 77, 81 (N.D. Cal. 1972), in which Judge Schnacke quoted approvingly from Bucklein v. Volpe, __ F. Supp. __, No. 70-700 (N.D. Cal.), 2 Envir. Rpts.-Cas. 1082 (1970):

". . . it is highly doubtful that the Environmental Policy Act can serve as the basis for a cause of action. Aside from establishing the Council [on Environmental Quality], the Act is simply a declaration of congressional policy; as such, it would seem not to create any right or impose any duties of which a court can take cognizance. There is only the general command to federal officials to use all practicable means to enhance the environment, 42 U.S.C. § 4331. It is unlikely that such a generality could serve or was intended to serve as a source of court-enforceable duties."

2. The Court is mindful of the provision of the Natural Gas Act, 15 U.S.C. § 717r (b), cited by defendants, which vests jurisdiction to review orders of the Federal Power Commission in the court of appeals "for an circuit wherein the natural-gas company to which the order relates is located or has its principal place of business, or in the United States Court of Appeals for the District of Columbia . . . ." Whether the Natural Gas Act provides plaintiffs with an exclusive statutory remedy is a question which need not be resolved for purposes of these motions. Indeed, whether the Natural Gas Act is applicable to the subject matter of the complaint, or to any part of it, is a question which should be decided, in the first instance, by the Federal Power Commission.