Sierra Club v. Mason

No. B-582 (D. Conn. March 26, 1973)

A temporary injunction against the dredging of New Haven harbor by the Army Corps of Engineers pending compliance with the National Environmental Policy Act is made permanent. The Corps now admits that the project requires compliance with NEPA, but this acknowledgment is not sufficient ground for dissolving the injunction since plaintiff is also challenging the sufficiency of the NEPA compliance.

Because the draft environmental impact statement is not a final agency action, the court refuses to review its sufficiency. The court believes that the function of the draft statement is to elicit comments which contribute to the final statement on which the final agency decision is based. Thus it differs from highway corridor hearings which are the actual basis for corridor selection, and which are reviewable final actions. Nonetheless, if subsequent review of the final statement indicates that the draft statement failed to elicit appropriate reaction to the project, additional NEPA compliance can be ordered.

For earlier opinion see 2 ELR 20694.

Counsel for Plaintiff
Haynes N. Johnson
460 Summer Street
Stamford, Connecticut 06901

Davidson & Chambliss
520 Riverside Avenue
Westport, Connecticut 06880

Alfred S. Forsyth
Forsyth, Decker, Murray & Broderick
51 West 51st Street
New York, New York 10019

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

Counsel for Defendant
Stewart H. Jones U.S. Attorney
Howard S. Eckenrode Assistant U.S. Attorney
Fedeal Office Building
450 Main Street
Hartford, Connecticut 06103

[3 ELR 20321]

Newman, J.

RULING ON SUPPLEMENTAL MOTIONS

This Court's judgment of October 31, 1972, granted plaintiff's motion for a preliminary injunction, enjoining defendants from dredging the New Haven Harbor until they have complied with the requirements of the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq. The Court's opinion specified that the temporary injunction would become permanent unless within twenty days the defendants notified the Court of any disputed issues of material fact. Both sides have filed motions requesting further relief.

Defendants seek to have the preliminary injunction dissolved on the ground that the defendants no longer dispute the essential issue raised by the plaintiff: whether the project requires compliance with the NEPA. This acquiescence is not a sufficient ground for dissolving the injunction, especially since plaintiff is challenging the sufficiency of the NEPA compliance. Alternatively, the defendants ask for additional time until March 1, 1973, "to dispute any material facts contained in the Court's Memorandum of Decision, dated October 31, 1972." March 1, 1973, has now come and gone, and defendants have not supplied the Court with any indication of an issue of material fact between the parties bearing on the propriety of making the temporary injunction permanent. Whether defendants might wish to dispute any material fact contained in this Court's Memorandum of Decision is a matter for appeal.The twenty days were allowed only to afford the defendants time to identify an issue between the parties that, in effect, would make the case inappropiate for summary judgment. No such issue having been identified either within twenty days or by March 1, 1973, it is plainly appropriate now to make the temporary injunction permanent.

Plaintiff's motion attacks the sufficiency of the draft environmental impact statement, dated November 15, 1972. It contends that the draft statement does not adequately consider every factor identified in this Court's Memorandum of Decision. That Memorandum explained the reasons why there must be an impact statement, but was not necessarily a specification of what an impact statement must contain in order to satisfy NEPA requirements. In any event, the initial question posed by plaintiff's motion for a "declaration of insufficiency" is whether the adequacy of a draft environmental impact statement presents a justiciable issue.

Normally agency action is not subject to judicial review until the agency action has resulted in a final order. Interlocutory appeals are no less a disruption to the administrative process than to the judicial process.

Plaintiff relies on Natural Resources Defense Council, Inc. v. Morton, 337 F.2d 170 (D. D.C. 1972), where the court indicated a lack of NEPA compliance for failure to elicit agency comment on a draft impact statement. But in that case, the government had contended that the statement in issue was a final statement; the plaintiff contended that it was a deficient final statement for lack of prior circulation among agencies. There was thus no testing of the sufficiency of a draft statement.

Of more relevance is City of Rye v. Schuler, __ F. Supp. __ (S.D. N.Y. Feb. 13, 1973), where a highway corridor public hearing was enjoined for lack of adequate public notice. Rather than remit the plaintiffs to a post-hearing challenge of the agency decision concerning corridor selection, the court intervened, before the hearing, to consider the sufficiency of the public notice. The court was concerned that an agency decision, once taken after a hearing defective for lack of adequate notice, might not realistically be subject to impartial reconsideration after a second hearing preceded by proper notice. Also of concern was the possibility that the public might make an ineffective presentation at the hearing for lack of the materials the agency should have made available.

There are two differences between the corridor hearing stage of a highway project and the draft impact statement stage of NEPA compliance. First, the draft statement is not the basis of an agency decision. Its function is to elicit comment that will contribute to a final statement, [3 ELR 20322] and it is the final statement that is supposed to serve as the basis for agency assessment of the environmental implications of the project.The highway corridor hearing, however, is the basis for selection of the corridor. Secondly, a corridor hearing is scheduled for the specific purpose of eliciting the views of the public. On the other hand, the statutory requirement that a draft impact statement be circulated has the more limited objective of eliciting the views of "any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved." 42 U.S.C. § 4332 (2) (C). While the Corps of Engineers regulations do provide for furnishing draft statements to the public upon request, this appears to contemplate reaction from a more sophisticated segment of the public than the general cross-section who might attend a corridor public hearing.

Both factors lead to a decision not to afford judicial review of the sufficiency of a draft statement at this stage of the NEPA procedure.If, upon review of the sufficiency of the final statement, deficiency in the draft statement should be found, a new NEPA compliance can be ordered before agency decision is finally made with respect to the project. Moreover, not every deficiency in a draft statement will inhibit the ability of interested federal agencies and interested segments of the public from making comments of significance to preparation of the final statement. Finally, deficiencies in the draft statement may well be cured in the course of preparing the final statement. Of course, the agency that circulates a deficient draft statement takes the risk that the final statement may be found deficient for lack of a draft statement that was sufficient to elicit appropriate reaction. But that risk does not justify premature judicial intervention.

Accordingly, defendants' motion to dissolve the temporary injunction or for additional time to identify disputed issues of material fact is denied, plaintiffs' motion for a declaration of the insufficiency of the draft impact statement is dismissed as not justiciable, and the temporary injunction is made permanent.

Dated at New Haven, Connecticut, this 26 day of March, 1973.