|
6 ELR 20402 | Environmental Law Reporter | copyright © 1976 | All rights reserved Delaware River Port Authority v. TiemannNo. 75-1219 (403 F. Supp. 1117) (D.N.J. November 12, 1975)In granting defendants' motion for summary judgment in a suit challenging a Federal Highway Administration (FHWA) order reducing tolls on interstate bridges owned and operated by the Delaware River Port Authority, the court holds that the Authority lacks standing to raise the claim that the FHWA illegally failed to prepare a NEPA impact statement. Assertion of the rights of third parties through an implicit, generalized claim that the toll reduction will lead to increased urban congestion and pollution is insufficient to confer standing in the absence of a showing of actual injury to the plaintiff. The only possible harm which the Authority might suffer from FHWA's action is decreased revenues from lower tolls, but such an economic injury does not fall within the zone of interests which NEPA seeks to protect. Because plaintiff has not satisfied the two-part standing test (demonstrated injury within zone of interests protected), the court need not consider whether the FHWA toll schedule is a major federal action significantly affecting the quality of the human environment. Excerpt from Opinion follows (403 F. Supp. 1142-44): VII. THE NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) The DRPA claims that the Administrator was required, pursuant to NEPA, 42 U.S.C. § 4332,72 to file an Environmental Impact Statement (EIS). It is alleged that the Administrator's failure to file an EIS renders his action, the implementation of the new toll schedule, unlawful. The necessary prerequisite to the raising of the environmental impact statement issue is, or course, the proper showing of standing by the DRPA. Article III of the Constitution, which expressly limits the exercise of the judicial power to "cases" and "controversies," provides the basic framework for analysis of the standing question. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 151-52, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970). To demonstrate standing a plaintiff must establish a personal stake and interest in the outcome of the controversy. This requirement makes certain that the resolution of disputes between parties will take place in an adversary contest. Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962); see also Flast v. Cohen, 392 U.S. 83, 101, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968); Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 220-21, 94 S. Ct. 2925, 41 L. Ed. 2d 706 (1974); Warth v. Seldin, U.S. 95 S. Ct. 2197, 2205, 45 L. Ed. 2d 343 (1975). To make the requisite showing of standing, the DRPA must demonstrate both that "the challenged action has caused [it] injury in fact" and that it is "within the zone of interests to be protected or regulated" by NEPA. Data Processing, supra 397 U.S. at 152-53, 90 S. Ct. at 829; see Cape May County Chapter, Inc., Izaak Walton League v. Macchia, 329 F. Supp. 504, 511 (D.N.J.1971); Environmental Defense Fund v. Tennessee Valley Authority, 468 F.2d 1164, 1171-72 (6th Cir. 1972); Natural Resources Defense Council, Inc. v. Securities and Exchange Commission, 389 F. Supp. 689, 697 (D.D.C.1975); Natural Resources Defense Council, Inc. v. Grant, 341 F. Supp. 356, 367-68 (E.D.N.C.1972).73 Injury to an environmental interest may be sufficient to meet the "injury in fact" test. Sierra Club v. Morton, 405 U.S. 727, 734, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972). However, the plaintiff "seeking review [must] be [itself] among the injured." Id. at 735, 92 S. Ct. at 1366; see Sierra Club v. Mason, 351 F. Supp. 419, 422 (D.Conn.1972); Environmenial Defense Fund v. TVA, supra; C'Brien v. Brinegar, 379 F. Supp. 289, 290 (D.Minn.1974) (dictum). The plaintiff must allege "a distinct and palpable injury to [itself] . . . ." Warth v. Seldin, supra 95 S. Ct. at 2206 (1975); see United States v. Students Challenging Reguatory Agency Procedures (SCRAP), 412 U.S. 669, 689, 93 S. Ct. 2405, 37 L. Ed. 2d 254 (1973). Further, a causal connection must be demonstrated between the action complained of and the alleged injury. Warth v. Seldin, supra, 95 S. Ct. at 2208; S. v. D., 410 U.S. 614, 617-18, 93 S. Ct. 1146, 35 L. Ed. 2d 536 (1973); Sierra Club, 405 U.S. at 735, 740, 92 S. Ct. 1361. The plaintiff must "establish that, in fact, the asserted injury was the consequence of the defendants' actions, or that prospective relief will remove the harm." Warth v. Seldin, supra; see also Paton v. LaPrade, 524 F.2d 862 (3rd Cir., filed Oct. 14, 1975). Applying the foregoing principles of the law of standing to the DRPA's pleadings, it is plain beyond doubt that the Authority has failed to satisfy the "injury in fact" test. Paragraph 32 of the DRPA's complaint alleges: The Administrator has not considered that his Order reducing the tolls is major Federal action significantly affecting the quality of the human environment in the Delaware Valley, and thus requires an environmental impact statement per Section 102 of the National Environmental Policy Act (42 U.S.C.A. § 4332). Absent from Paragraph 32 is any allegation that the DRPA will suffer injury resulting from the implementation of the Administrator's toll schedule. Rather, Paragraph 32, generously construed, appears to raise by implication the environmental interests of the citizens of the Delaware Valley. The DRPA argues that the Administrator's toll schedule, insofar as it lowers the commuter and basic cash toll, will add to urban congestion and pollution.74 Standing cannot be based upon a "generalized grievance" held in common by all or a large class of citizens. Warth v. Seldin, supra 95 S. Ct. at 2205; Paton v. LaPrade, supra. Nor is the assertion of the rights of third parties sufficient, without more, to confer standing. Warth v. Seldin, supra; see Barrows v. Jackson, 346 U.S. 249, 255, 73 S. Ct. 1031, 97 L.Ed. 1586 (1953). Of course, if the plaintiff makes the requisite showing of actual injury suffered by itself, the claims of third parties, as well as those of the general public, may properly be advanced and ultimately adjudicated; but theDRPA has made no such showing here. The only possible harm which the DRPA might suffer from the implementation of the Administrator's toll schedule is economic in nature, i.e. decreased revenues from lower tolls. But such injury, if any,75 does not fall within the zone of interests which NEPA seeks to protect. Clinton Community Hospital Corp. v. Southern Maryland Medical Center, 374 F. Supp. 450, 455 (D.Md.), aff'd per curiam, 510 F.2d 1037, 1038 (4th Cir. 1974), cert. denied, U.S. , 95 S. Ct. 2666, 45 L. Ed. 2d 700 (1975); cf. Duke Lumber Co. v. Butz, 382 F. Supp. 362, 373-74 n. 35 (D.D.C.1974). In Clinton Hospital Corp., the court observed that the plaintiff's real aim was not to protect the environment, but rather to prevent the building of a competitive hospital nearby, and found that the plaintiff lacked standing. 374 F. Supp. at 455. The DRPA's position here is virtually the same as that of the Clinton Community Hospital Corporation. The DRPA has not satisfied the two-part test of Data Processing. It has not demonstrated that it will be injured if the Administrator's toll schedule is implemented. Nor has it established that it is within the zone of interests to be protected by NEPA. Therefore, the DRPA has no standing to challenge the Administrator's alleged failure to file an EIS. It follows that the court need not consider whether the Administrator's toll schedule is major federal action significantly affecting the quality of the human environment. 42 U.S.C. § 4332.76 The full text of this opinion is available from ELR (25 pp. $3.25, ELR Order No. C-1035). 72. 42 U.S.C. § 4332 provides: The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall — (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on — (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action. (iv) the relationship between local shortterm uses of man's environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes 73. See also Barlow v. Collins, 397 U.S. 159, 164, 90 S. Ct. 832, 25 L. Ed. 2d 192 (1970); Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 212, 93 S. Ct. 364, 34 L. Ed. 2d 415 (1972); Reservists Committee to Stop the War, supra, 418 U.S. at 227 n. 16, 94 S. Ct. 2925. 74. It would seem that the Administrator's reductions in the carpool and bus rates would have a positive environmental impact. See Administrator's Supplemental Opinion, at 7. 75. Any injury would appear to be de minimis, since the Administrator's schedule allows the DRPA to maintain its public facilities and meet its commitments to the bondholders. 76. The Administrator addressed the merits of the NEPA issue in his Supplemental Opinion, at 6-7, concluding that the implementation of the toll schedule did not require an EIS. See note 74, supra. Counsel for Plaintiff Roland Morris Counsel for Defendants Counsel for Intervenor City of Phildelphia Brotman, J. [OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE] 6 ELR 20402 | Environmental Law Reporter | copyright © 1976 | All rights reserved |