Breckinridge v. Schlesinger

No. 75-100 (E.D. Ky. October 31, 1975)

The U.S. Army failed to comply with NEPA in deciding to close down the Lexington-Bluegrass Army Depot and transferring its functions to similar installations in California and Pennsylvania. While conceding that the proposed closing is a major federal action, the Army nevertheless determined that it would not significantly affect the quality of the human environment within the meaning of the Act. The administrative record reveals that the studies encompassing environmental aspects of the proposed action were only begun after the initial decision to close the depot was made. It thus appears that the studies were not objective, but were intended instead to be post hoc rationalizations of the decision. In apparent violation of its own NEPA compliance regulations and the "full disclosure" spirit of the Act itself, the Army also shrouded the decision-making process and subsequent environmental review in secrecy for fear of public reaction to the proposed closing. A violation of NEPA is apparent under either the reasonableness test or the arbitrary and capricious standard of review. By their misfeasance, the defendants have placed the case in such a posture that preparation of a full environmental impact statement is required. The court holds that plaintiffs have standing to maintain this suit in view of their statutory right to have the environmental aspects of a proposed major federal action fully considered by an agency at every stage of the decision-making process. It is, however, unnecessary to rule on plaintiffs' additional contention that the NEPA term "human environment" encompasses secondary socio-economic ramifications of proposed actions such as unemployment and economic dislocation. Closing the depot is enjoined pending completion of an EIS and reconsideration of the closing decision in light of the impact statement's findings.

Counsel for Plaintiffs
Bert T. Combs
Tarrant, Combs & Bullitt
26th Floor, Citizens Plaza
Louisville, KY 40202
(502) 584-1144

Julius E. Rather
259 W. Short St.
Lexington, KY 40507
(606) 252-0824

Terry McBrayer
1st Security Plaza
Lexington, KY 40507
(606) 255-6824

E. Lassen King, Fayette Cty. Attorney
806 Security Trust Bldg.
277 W. Short St.
Lexington, KY 40507
(606) 252-7552

Herbert D. Sledd
Brown, Sledd & McKann
300-308 W. Short St.
Lexington, KY 40507
(606) 254-2712

Counsel for Defendants
Eldon L. Webb, U.S. Attorney
P.O. Box 1490
Lexington, KY 40501
(606) 252-2312

[6 ELR 20112]

Moynahan, J.:

Plaintiffs seek injunctive relief to restrain defendantsfrom closing down the Lexington-Bluegrass Army Depot and transferring its functions to similar installations in California and Pennsylvania. It is alleged that such action on the part of the defendants will directly cause the unemployment of approximately 2,600 civilian employees in addition to the impact the dismantling will have upon those not employed by the federal government but whose livelihood depends on the existence of the depot. This action arises under the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 et seq., hereinafter referred to as NEPA, and the Environmental Quality Improvement Act of 1970, 42 U.S.C. §§ 4371 et seq. Jurisdiction is predicated on 28 U.S.C. § 1331 and 5 U.S.C. § 702; and the court is said to have jurisdiction to grant declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202.

The gist of the complaint appears to be that the Secretary of Defense, and the other defendants, in arriving at their policy decision to terminate the operation of the depot failed to properly assess the physical and sociological impact the proposed action would have been the greater Lexington area and the areas surrounding the depots in California and Pennsylvania that would assume the functions of the Lexington operation.

More particularly, plaintiffs aver that defendants failed to comply with their own regulations and directives in that:

(a) the environmental assessment is inadequate as it does not contain all the information required by the regulations; does not relate to the decision actually made by defendants; and does not fully and adequately discuss alternatives to the proposed action;

(b) defendants failed to prepare a final environmental statement for the proposed action;

The plaintiffs further state that a violation of § 102(2)(C) of the National Environmental Policy Act of 1969, 42 U.S.C. § 4332 has occurred from the defendants' failure to prepare the detailed impact statement required therein.

The plaintiffs further conclude that any decision on the part of the defendants that the aforesad environmental effects would be minimal and that an environmental impact statement as envisioned by § 102(2)(C) was not required, was inadequately supported, was arbitrary and capricious, and thus an abuse of discretion. Mention is also made of Defense Directive 6050.1 and 32 C.F.R. 214.7(e) requiring defendants to prepare an environmental impact statemet on proposals which are highly controversial because of environmental aspects, even if it were determined by defendants that the proposed action would not significantly affect the environment. The plaintiffs, seeing the environmental aspects as being highly controversial, assign as error defendants' failure to follow their own directives and regulations.

For these reasons, the plaintiffs pray that a preliminary injunction issue to restrain defendants from implementing their proposed plan to dismantle the Lexington-Bluegrass Army Depot and that, after an evidentiary hearing before the court, a permanent injunction issue against the implementation of project CONCISE, as the proposed plan is known.

Procedurally, the case is now before the court upon the plaintiff's motion for a preliminary injunction and the defendants' motion for summary judgment. In recognition of the fact that the latter motion, if successful, would be dispositive of the controversy the court shall give it first attention.

The main thrust of the plaintiffs' case appears to center on the argument that the defendants have failed to comply with § 102(2)(C) of the Act, 42 U.S.C. § 4332(2)(C), which provides, inter alia, that the subject agency publish a detailed environmental impact statement (EIS) if the action contemplated is a major federal action that would significantly affect the quality of the human environment.

The defendants contend that with the cessation of hostilities in Vietnam and the concomitant reduction in the size of the Army the capacity of three associated depots far exceed current and planned communications electronics maintenance requirements and that a curtailment in operations was necessary. They further contend that because of more modern facilities at the Pennsylvania depot and the location and other major missions assigned to the Sacramento Army Depot, it was deemed most expedient to phase down the Lexington-Bluegrass installation.

After the proposed realignment is completed, the Lexington-Bluegrass facility would continue to be an active installation of some 1594 employees.¹ The cost reduction attributable to the proposed action is thought to be approximately $37,000,000, with the funds being reallocated from the maintenance function to the suppport of an increased Army combat structure.²

It is asserted by the defendants that the so-called "realignment" of the Lexington-Bluegrass Army Depot does not involve any long-term impacts, any permanent commitment of natural resources, or any degradation of traditional environmental assets. Defendants further allege that the impact of the realignment is limited to short term personal inconveniences and short term economic disruptions.

Thus, the defendants have taken the stance that although the proposed action is a major federal action, its implementation would not significantly affect the quality of the human environment, therefore obviating the need for the publication of an environmental impact statement.

With the issue thus framed, the court must focus its attention on the threshold determination made by the Department of Defense and the Army that the proposed action would not significantly affect the quality of the human environment within the meaning of the Act.

NEPA is a procedural act requiring all federal agencies to consider values of environmental preservation in their spheres of activity, and it mandates that certain procedural steps be taken to ensure that those values are duly considered in the agency decision-making process. Calvert Cliffs' Coord. Comm. v. U.S.A.E.C., 449 F.2d 1109 [6 ELR 20113] (D.C. Cir. 1971).

In each individuai case, the particular economic and technical benefits of planned action must be assessed and then weighed against the environmental costs; and alternatives must be considered which would affect the balance of values. Calvert Cliffs' Coord. Comm., supra.

While the particular federal agency involved has the authority to make its own threshold determination as to whether NEPA requires an impact statement in connection with a project, the agency also has the duty of making clear its threshold decision, the rationale behind it, and the means of arriving at that determination. Perfunctory and conclusory language will not suffice, as the Act requires federal agencies to affirmatively develop a reviewable environmental record. Citizens for Clean Air, Inc. v. Corps of Engineers, U.S. Army, 349 F. Supp. 696 (D.C.N.Y. 1972); Hanly v. Kleindienst, 471 F.2d 823 (2d Cir. 1972) cert. denied 412 U.S. 908 (Hanly II); for earlier history see Hanly v. Mitchell, 460 F.2d 640 (2d Cir. 1972) cert. denied 409 U.S. 990, (Hanly I).

Without such a record, it is impossible for a district court to determine whether or not the agency has complied with §§ 102(2)(A), (B), and (D) of NEPA, 42 U.S.C. §§ 4332(2)(A), (B), and (D). Hanly II, supra, 471 F.2d at 834.

Section 102(2)(B) of the Act is particularly germane to this discussion, as it requires the responsible agencies to identify and develop methods and procedures of review which will give appropriate consideration to presently unquantified environmental amenities. Such procedures should encompass the sending of some form of notice and communication with the affected public regarding the proposed action, as consideration of relevant facts and comments offered by the public is not only proper but necessary. Simmans v. Grant, 370 F. Supp. 5 (S.D. Tex. 1974); see Hanly II, supra, 471 F.2d at 835.³

The initial study performed is designated as "the case study and justification folder" and followed the decision-making process.⁴ The analysis considers, inter alia, adequacy of housing facilities availability of utilities and energy sources; the geography from the standpoint of physical location, weather, and terrain, the environmental impact of the realignment at the Lexington Depot on the surrounding area.⁵

The environmental assessment is incorporated into this document and appears to do no more than state such bald conclusions as:

(5) Because of the appreciable decline in the maintenance mission, the potential of that operation to adversely affect the environment is significantly reduced.

(7) It might be anticipated that the action would improve the quality of the human environment.

The so-called "assessment" finally concludes:

The proposed action is considered to be a major action. A significant environmental impact will not result from the action. Implementation of the plan of action will not be environmentally controversial.

Also included in the Case Study and Justification Folder were sections dealing with the socio-economic impact upon the losing community and an analysis of the alternatives to the proposed action.

Concurrently, the Assistant Secretary of Defense and the office of the Chief of Staff of the Army contracted with Battelle-Columbus Laboratories to conduct a study on the socio-economic impact of a reduction in force in the Lexington-Bluegrass area.⁶ The result of that liaison was the so-called Battelle Report which become the source of considerable interest at the hearings of September 26-27, 1975.

The Battelle Report addressed, inter alia, the following subjects: socio-economic environment, including population characteristics, labor force and employment characteristics; local industries; tourism; recreational, cultural, and historical resources; human resources programs; long-term economic growth outlook; the impact of the proposed realignment and other economic impacts upon the Lexington-Bluegrass area; an evaluation of recent area development efforts; and a preliminary strategy for the development of the Lexington-Bluegrass area after realignment. The report concluded that the greater Lexington area enjoyed great economic vitality and would therefore be able to absorb the economic impact of the reduction in unemployment and naintain a favorable long-term economic outlock.

Department of Defense Directive 6050.1, 32 C.F.R. 214.7(a) provides in part:

(a) It is impossible to list categorically all DoD projects or activities that are 'major Federal actions significantly affecting the quality of the human environment.' In making a judgment in a particular case, it will be necessary for the proponent of this action to assess the expected environmental effects the action in conjunction with the intent of the National Environmental Policy Act (NEPA) as implemented by the Council of Environmental Quality (CEQ) . . . (Emphasis supplied)

Section 101(a) of the NEPA, 42 U.S.C. § 4331(a) reads as follows:

Congressional declaration of national environmental policy

'(a) The Congress . . . declares that it is the continuing policy of the Federal Government, in cooperation with state and local governments, and other concerned public and private organizations, to use all practicable means and measures . . . in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.' (emphasis supplied).

This spirit of openness and cooperation with state and local governments is reflected in a subsequent paragraph of the defendants' own directive, DoD 6050.1, 32 C.F.R. 214.7, 214.7(d)(21):

(d) certain types of actions require close environmental scrutiny because of the possibility that they may either affect the quality of the environment or create environmental controversy. It may be desirable in such cases to have a complete presentation of the environmental aspects of the proposed action available for any interested party. For these reasons, consideration shall be given to documenting the environmental effect of the following types of actions in writing:

(d)(21) any action which, because of real, potential or purported adverse environmental consequences, is a subject of controversy among people who will be affected by the action, or which, although not the subject of controversy, is likely to create controversy when the proposed action becomes known by the public. (Emphasis supplied)

In contravention of this language, the defendants maintained what they termed a "close-hold tab" on the proposed action during the course of their decision-making process and subsequent review. This clandestine procedure is apparently a designation by the Army of non-classified material that is nonetheless kept from public view. It was stated by counsel for the defendant agencies at the hearings of September 26-27, 1975, that on the basis of the conclusion reached in the Battelle Report,⁷ no public hearings were held as they did not wish to alert the affected public to the proposed action.

However valid that justification may be, it cannot be controverted that secrecy in the agency decision-making process runs [6 ELR 20114] counter to the clear thrust of NEPA, McDowell v. Schlesinger, __ F. Supp. __, (W.D. Mo., Civil No. 75-CV-234-W-4). NEPA, above all, is an environmental full disclosure law, M.P.I.R.G. v. Butz, 498 F.2d 1314 (8th Cir., En Banc, 1974). The "close-hold procedure," as the McDowell court noted:

. . . limits drastically the available sources of information to which an agency might turn in making the threshold decision as to the applicability of section 102(2)(C), and comments and input from individuals and groups who may well be in the best position to assess the effects of the proposed action.

McDowell v. Schlesinger, supra, slip op. at 61, n. 1.

In the face of an apparent violation of both the spirit of the Act and their own regulation, the defendants contend that their study of Lexington-Bluegrass was interdisciplinary in nature and comprehensive; was conducted by numerous individuals; was processed through the Army staff in such a manner that insured thorough review; and was continually updated and reassessed.⁸

While a review of the administrative record in its entirety may reveal that environmental factors were considered by the defendants, the record also reflects that the studies encompassing environmental aspects of the proposed action were only initiated after the initial decision was made.

It is significant to note that the initial draft of the Battelle Report was available to the Army staff and that a meeting was held in Columbus, Ohio, on September 9, 1974, between representatives of the Department of Army, Department of Defense, and staff members of Battelle to discuss the results of the study.⁹ From the testimonyadduced at the hearing, changes in the report were made by Battelle at the behest of the Department of Defense and Department of Army. Specifically, suggestions were made to "strengthen" portions of the report dealing with ways to alleviate the economic impact. The final report was transmitted on October 9, 1974.

The fact that officials from the Department of Army and Department of Defense reviewed the initial draft and made suggestions to "strengthen" a portion of the Report, when combined with the admission of defendants' brief that the case study and justification folder followed the decision-making process, raises grave questions as to the objectivity of the amassed data. It would appear that the initial decision was made prior to the collection of information concerning the impact of the proposed action and that the reports submitted were not objective studies, as purported, but were made with an eye towards the justification of the initial decision.

The court has a great deal of difficulty in accepting the manner in which defendants gathered their information. While fully aware that it is not the function of the court to 'direct the exercise of judgment or discretion in a particular way,' Schatten v. United States, 419 F.2d 197, 192 (6th Cir. 1969), quoting from Wilbur v. United States ex rel. Kadrie, 281 U.S. 206, 218 (1930); the dangers of making a decision of such magnitude, albeit a threshold determination, without accurate unbiased information cannot be overemphasized. This would hold true where, as here, it might superficially appear that the environmental effects on the losing installation may be negligible.¹⁰

This concern was recognized by Congress in the passage of NEPA which, as noted earlier, is a procedural act implemented to insure that appropriate safeguards are taken at all stages of the agency decision-making process. Environmental Defense Fund v. Tennessee Valley Authority, 468 F.2d 1164 (6th Cir. 1972); Iowa Citizens for Environmental Quality, Inc. v. Volpe, 487 F.2d 849 (8th Cir. 1973). Compliance with § 102 of the Act requires at the minimum a good faith effort on the part of the responsible federal agency to objectively weigh the real or potential environmental ramifications of a proposed action, as opposed to a subjective impartiality. Life of the Land v. Brinegar, 485 F.2d 460 (9th Cir. 1973) cert. denied 416 U.S. 961; Environmental Defense Fund v. Corps of Engineers, 470 F.2d 289, 296 (8th Cir. 1972) cert. denied 412 U.S. 931.

This objectivity in evaluating environmental impact is required, at all levels of the decision-making process, to include: selection of consultants; undertaking environmental studies; reliance upon such studies; creation of environmental assessments; and coordination with reviewing agencies. Sierra Club v. Froehlke, 359 F. Supp. 1289, 1342 (S.D. Tex. 1973).

To say that these ex post facto efforts of the defendants, shrouded in secrecy, comply with the strict procedural requirements of NEPA would be to blithely ignore the mandate of the Act, which requires consideration of environmental matters to be more than a mere pro forma ritual conducted after the initial decision has been made. Life of the Land v. Brinegar, supra, at 466 n. 7; Maryland-National Cap. Pk. & Pl. Comm'n v. U.S. Postal Service, 487 F.2d 1029 (D.C. Cir. 1973) cert. denied 416 U.S. 974, rehearing denied 419 U.S. 1041. The Act further requires full disclosure to insure that environmental factors are given substantial and consistent consideration in the agency decision-making process, even where it may conflict with other federal objectives. Sierra Club v. Froehlke, supra.

The question might be raised that despite the agency's haphazard approach, the ultimate result would not be altered as the environmental concerns over the realignment are largely unfounded. However, the court is not persuaded by such reasoning, as it is of the firm opinion that the provisions of NEPA must be vigilantly enforced to prevent administrative laxity and to ensure that the high congressional purposes underlying NEPA become a reality. See Hanly II, supra, dissent, Friendly, J. at 840; City of New York v. United States, 337 F. Supp. 150 (E.D.N.Y. 1972); Arizona P.S.C. v. F.P.C., 483 F.2d 1275, 1283 (D.C. Cir. 1973); Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323, 1331 (4th Cir. 1972), cert. denied 409 U.S. 1000.

NEPA's requirements are specifically designed to counter the inevitable agency bias in favor of a proposal or project, Environmental Defense Fund v. Corps of Engineers, supra, and to effectuate substantive changes in the agency decision-making process, M.P.I.R.G. v. Butz, supra. The negative threshold determination reached in the instant case appears to be little more than a bald conclusion reached by way of a perfunctory after the fact analysis of less than impartial data.

As the Court of Appeals for the District of Columbia stated in Calvert Cliff's Coordinating Committee v. U.S. A.E.C., supra, at 1115:

We conclude then that section 102 of NEPA mandates a particular sort of careful and informed decision-making process and creates judicially enforceable duties. The reviewing courts probably cannot reverse a substantive decision on its merits, under section 101, unless it be shown that the actual balance of costs and benefits that was struck was arbitrary or clearly gave insufficient weight to environmental values. But if the decision was reached procedurally without individualized consideration and balancing of environmental factors — conducted fully and in good faith — it is theresponsibility of the Courts to reverse. As one District Court said of section 102 requirements: 'It is hard to imagine a clearer or stronger mandate to the Courts.' (Emphasis supplied)

Whether the court adopts the test of reasonableness of agency action adhered to by the Eighth and Fifth Circuits, M.P.I.R.G. v. Butz, supra at 1320; Save Our Ten Acres v. Kreger, 472 F.2d 463, 466 (5th Cir. 1973); or the arbitrary and capricious standard recognized in the Ninth, Second, and District of Columbia Circuits, A & C Environmental Defense Fund v. Armstrong, 487 F.2d 814, cert. denied 945 S. Ct. 2002 (1973); Hanly II, supra; Arizona P.S.C. v. F.P.C., supra; a violation of the Act is apparent under either test.

The defendants have, by their misfeasance, placed the case in such a posture that an environmental impact study is required; as it is the only remedy available to plaintiffs that would act to alleviate the transgressions of the defendants, which include primary reliance on information acquired subsequent to the initial decision and in one instance, directing that certain changes be made in the final draft of a supposedly objective study; i.e., the Battelle Report. Such agency behavior cannot be tolerated as it violated both the letter [6 ELR 20115] and the spirit of NEPA.¹¹

The plaintiffs advance the novel theory that the term "human environment," as embraced by the Act, encompasses such secondary socio-economic ramifications of major federal actions as unemployment and economic dislocation.

In as much as the defendants have utterly failed to make the proper environmental impact study and must now belatedly make such study and file a final environmental impact statement, the court is not required to decide at this time the issue raised by plaintiffs' contention as to the scope of the term "human environment," as used in the Act.

The defendants do not appear to seriously question the plaintiffs' standing to maintain this action. Moreover, the court notes that § 10 of the Administrative Procedure Act provides for judicial review should an individual suffer a legal wrong or be adversely affected or aggrieved by an agency action within the meaning of a relevant statute, 2 U.S.C. § 702.

The satisfaction of a two-fold test is required to confer standing under the above section. First, plaintiffs must show that the challenged action has or will cause him injury in fact, and secondly, that the alleged injury is to an interest which is "arguably within the zone of interests to be protected or regulated by the statutes" that plaintiff claims the agency has violated. United States v. SCRAP, 412 U.S. 669 (1973); Sierra Club v. Morton, 405 U.S. 727 (1972).

The court in Coalition for the Environment v. Volpe, 504 F.2d 156 (8th Cir. 1974) said of standing, at page 168, that it was a threshold inquiry where the court must consider not the weight or significance of the alleged injury, but only whether it exists.

The record now before the court reveals that some environmental impacts may occur from the proposed action. The true significance of the environmental impact is not ascertainable from the data compiled due to the taint placed upon it by the defendants' surreptitious behavior in accumulating same. However, this is of no moment where the existence of an injury to an interest, "arguably within the zone of interests" protected by NEPA, has been shown. That interest being the statutory right of the public to have environmental aspects of a proposed major federal action fully considered by an agency at each and every stage of the decision-making process. To satisfy that interest, the procedural requirements of NEPA must be strictly complied with. There was no such compliance herein.

An appropriate order will this date be entered directing the defendants to comply fully with the requirements of § 102(2)(C) of NEPA, including the preparation of an environmental impact statement with its procedural requirements for public input prior to and as an integral part of any reconsideration by the defendants relating to implementation of the proposed plan to phase down said Lexington-Bluegrass Army Depot facility.

The District Court has the power to enjoin implementation of the proposed action pending the filing of an environmental impact statement, M.P.I.R.G. v. Butz, supra at 1323, and the court is of the opinion that injunctive relief should be granted in view of the paramount public interest in seeing that the provisions of NEPA are fully carried out; the possibility that irreparable harm might occur to plaintiffs should an injunction not issue pending the completion of an environmental impact study; and the favorable balance struck by the threat of harm to plaintiffs over the harm which may inure to the defendant agencies by the granting of an injunction.

For the foregoing reasons, the defendants' Motion for Summary Judgment should be overruled. The defendants will be directed to comply fully with § 102(2)(C) of the Act, with the appropriate injunctive relief to issue as specified herein.

1. Defendants' brief in support of their motion for summary judgment, page 2.

2. Id.

3. The Second Circuit reasoned that since an agency, in making a threshold determination as to the "significance" of an action, is called upon to review in a general fashion the same factors that would be studied in depth for preparation of a detailed environmental impact statement, § 102(2)(C) requires that some rudimentary procedures be designed to assure a fair and informed preliminary decision. The court held that these procedures involved in reaching the threshold determination of significance must include the giving of notice to the public of the proposed major federal action and affording an opportunity to submit relevant facts which might bear upon the agency's threshold decision. 471 F.2d at 836.

4. Defendants' brief in support of their motion for summary judgment, page 6.

5. Id., page 6.

6. Defendants' brief in support of motion for summary judgment, page 10; defendants' Exhibit 4, affidavit of Berry Cantor, page 2.

7. The Report concluded that the economic vitality of the area precluded a finding that the proposed action would significantly affect the human environment. This assessment of the Report was also announced by defense counsel at the aforesaid hearing. Encl. B, to defendants' Exhibit 1, Battelle Report, page 2-23.

8. Defendants' brief in support of motion for summary judgment, page 31.

9. Page 9, defendants' summary judgment brief.

10. This case presents, according to the exhibits filed by plaintiffs, secondary effects on the losing community of a much lesser degree than was witnessed in the McDowell case. See affidavit of Edward E. Sturgeon, Jr. Moreover, the impact on the local school systems affected by the realignment will be greatly reduced by federal assistance available to "impacted" school districts under the provisions of 20 U.S.C. §§ 236 et seq., as amended, under subsection (e) of said statute (as amended August 21, 1974, by § 305(a)(1), P.L. 93-380, 88 Stat. 523) 20 U.S.C. § 238(e), the local schools will have four years within which to absorb whatever loss in student population is caused by the implementation of the proposed realignment.

11. The credibility of the Battelle Report having been seriously impaired and the CONCISE report being in the nature of a subsequent justification for a decision previously made, it is impossible to now gauge the true effect of implementation of the proposed realignment.

Additionally, the Secretary of the Army, exhibiting what in retrospect appears to be an obvious lack of candor, assured Congressman Breckenridge, a party plaintiff to this action, as late as August 9, 1974, that the Kentucky congressional delegation would be kept fully informed on future decisions that would have a significant effect on the Depot. (Plaintiffs' Exhibit 1(d)).