Fort Story -- Its Future? v. Schlesinger

Fort Story — Its Future? v. Schlesinger

No. 74-232-N (E.D. Va. July 19, 1974)

In a Letter Opinion to counsel, the court rules that plaintiffs, as residents of a nearby city, have standing to maintain this NEPA challenge to construction of a Navy housing project on dune land adjacent to a state park. Plaintiffs' use of the adjoining park for recreation and their interest in seeing the site of the project, which is currently owned by the Army, relinquished to the state for use as an addition to the park are sufficient to confer standing under the precedent of United States v. SCRAP. The court then goes on to find that the Navy Review Panel was not possessed of all the available facts relating to the project's environmental effects when it determined that preparation of an environmental impact statement was not necessary. A preliminary injunction will be granted prohibiting the award of construction contracts until a full EIS has been filed with CEQ, or the Navy Review Panel has adequately considered all the environmental evidence disclosed at the trial. For the court's findings of fact and conclusions of law, and order issuing the injunction, see 4 ELR 20810.

Counsel are listed in 4 ELR 20820

[5 ELR 20038]

Hoffman, J.

In United States v. SCRAP, 412 U.S. 669 (1973), the Supreme Court was sharply divided on the issue of "standing," with Justices Stewart, Brennan, Blackmun, Douglas and Marshall expressing views that SCRAP and the Environmental Defense Fund had standing to maintain the action, whereas Mr. Justice White, with the Chief Justice and Mr. Justice Rehnquist concurring, vigorously disagreed. Mr. Justice Powell did not participate.

If permitted to do so, I would wholeheartedly agree with the dissenting opinion and dismiss this case for lack of standing. However, I am compelled to follow the Supreme Court and that Court speaks through its majority. I personally agree that plaintiffs' standing in this case is so attenuated that there is no right of action but, as I read SCRAP, I must reach a contrary conclusion and, therefore, I hold that plaintiffs have standing to sue.

There are two distinguishing features between SCRAP and the present case. It appears that SCRAP was decided solely on the pleadings, whereas a full evidentiary hearing has been conducted in the instant case. Moreover, in SCRAP it was alleged that plaintiff's members used the forests, streams, mountains, and other resources in the Washington metropolitan area for camping, hiking, fishing and sightseeing, whereas Ft. Story is properly owned by the Department of the Army and the plaintiffs and members of the plaintiff corporation cannot truthfully allege nor prove that they use the area of the contemplated housing project for any lawful purpose. However, the plaintiffs have alleged and proven that they, and the general public, frequently use Seashore State Park which essentially adjoins Ft. Story, the proposed housing project being separated from Seashore State Park by a highway and certain wooded and marsh areas.

The majority opinion in SCRAP holds that an environmental impact statement is required "whenever the action arguably will have an adverse environmental impact." This language does not, of course, relate to the standing issue but does play an important part in determining whether the Navy, as the contemplated builder of the housing project pursuant to one or more contracts to be awarded on August 30, 1974, has complied with the National Environmental Policy Act (NEPA) and specifically § 102(2)(C).

Reverting to the issue of standing, it would appear from SCRAP that, in environmental cases, substantially every citizen living in reasonable proximity to the anticipated project may maintain an action.To establish an "injury in fact" as required by Sierra Club v. Morton, 405 U.S. 727, it is apparently only necessary to allege and prove that plaintiffs may arguably be injured within the zone of interests to be protected or regulated. Standing is not to be denied simply because many people suffer the same injury. In SCRAP, footnote 14, the Supreme Court states that "injury in fact" reflects the statutory requirement that a person be "adversely affected" or "aggrieved." The Court analogizes environment case standing with Baker v. Carr, 369 U.S. 186 (involving a fraction of a vote), McGowan v. Maryland, 366 U.S. 420 (a five dollar fine and costs), and Harper v. Virginia Bd. of Elections, 383 U.S. 663 (a $1.50 poll tax). The Court cites with approval a quotation from Davis, Standing: Taxpayers and Others, 35 U.Chi. L.Rev. 601, 613, which reads:

The basic idea that comes out in numerous cases is that an identifiable trifle is enough for standing to fight out question of principle; the trifle is the basis for standing and the principle supplies the innovation.

The primary purpose in maintaining this action is to block the Navy from awarding a housing project contract in hopeful anticipation that the United States, realizing that Ft. Story has essentially outlived its usefulness as a military post, will relinquish this valuable property to the Commonwealth of Virginia for use as a state park. The Court made it clear that it would have no part in aiding such action. The property belongs to the Department of the Army and, subject to such laws as may be applicable, the Army may use its property as it deems appropriate. In this case, the Army has consented to the Navy's use of approximately 80 acres for a housing project consisting of four and five bedrooms, making up approximately 600 units of "row houses" with an estimated population of slightly in excess of 3000 persons. Unfortunately for the Army and Navy, NEPA is one of the laws applicable to such use of the property.

It was stipulated and agreed that the proposed housing project constitutes "major federal action." Assuming the correctness of this Court's ruling on the issue of standing, the remaining question is whether the Navy's contemplated action significantly affects the quality of human environment. While I believe that the environmental problems are non insurmountable, matters involving especially overcrowded schools, traffic and sewage facilities are at least such as arguably may have an adverse environmental impact.

The Navy Review Panel, established for the purpose of assisting the Navy in determining environmental problems, voted 5 to 4 that the Navy was not required to file a full impact statement. While the Court is required to give this action due weight in determining whether the contemplated project significantly affects the quality of human environment, the evidence adequately demonstrates that the Navy Review Panel was not possessed of all facts, findings and conclusions which were known or submitted to the Navy before the Candidate Environmental Impact Statement (CEIS) was forwarded to the Navy Review Panel. When seemingly important facts and views of experts are deleted from the CEIS, it tends to destroy the authorities which support the view that adequate consideration by the agency is all that is required. Rucker v. Willis, 484 F.2d 158 (4 Cir. 1973); Hanly v. Kleindienst, 471 F.2d 823 (2 Cir. 1972); Conservation Council v. Froehlke, 473 F.2d 664 (4 Cir. 1973).

Had all pertinent facts and opinions of experts been submitted to the Navy Review Panel, the latter may have voted to require the filing of a full impact statement with the Council on Environmental Quality (CEQ). If the vote had resulted in a different determination, the Court would then have been faced with the "arbitrary, capricious or abuse of discretion" test as urged by the defendants. A judicial review would then be limited to the stated test and a balancing of interests, in which event the Court has already expressed itself that the Navy would probably prevail. But we cannot balance the interests where shortcuts have been taken by the agency.

The Court does not intend to file a formal opinion in this case and counsel are requested to submit, within 10 days, proposed findings of fact and conclusions of law. In summary, the Court will grant a preliminary injunction prohibiting the awarding of contracts for the construction of the project pending the filing with CEQ of the full impact statement and the ultimate recommendation of that agency. If the Navy sees fit to resubmit its CEIS to the Navy Review Panel, accompanied by a statement of the evidence disclosed in this trial, including the initial draft of the CEIS as prepared by its expert, defendants may then move to dissolve the preliminary injunction after appropriate consideration and decision by the Navy Review Panel.

Bond is require in the sum of $3,000.00.

Plaintiffs have shown an immediate and irreparable injury in fact in that, if the injunction is not granted, it is the announced intention of the Navy to proceed to award one or more contracts on August 30, 1974. If construction is commenced, all parties will suffer an irreparable loss.

[5 ELR 20039]

The Court agrees with defendants that there is a critical need for additional Navy housing. Regrettably, the provisions of NEPA must take precedence over this need. The same answer applies to the argument that a public interest is not served by the issuance of an injunction. The Court is mindful of the fact that the $14,000,000.00 appropriation may expire by operation of law if contracts are not awarded by a fixed date, but this will merely leave the matter for Congress and, if Congress is of the opinion that NEPA should be modified or that the appropriation should be again inserted in the budget, the problem is no greater than has existed with respect to Navy housing in this area since April, 1973 when the Navy assigned additional personnel to the Norfolk area by reason of the closing of other bases. In any event, the Court agrees with the line of authority that, in doubtful cases, an impact statement should be filed with CEQ.

By consent of counsel and pursuant to an order of the Court, an amended complaint was filed on July 18, 1974. Without reviewing same, and conceding that it may tend to strengthen the allegations, the answer remains the same.

The Order granting the preliminary injunction shall be presented within 10 days.