Homeowners Emergency Life Protection Committee v. Lynn

No. 74-3301 (9th Cir. May 26, 1976; June 2, 1976)

The Ninth Circuit enjoins federal reimbursement funding for the continued construction of the Los Angeles Dam and Reservoir Project pending plaintiff's appeal from a lower court's denial of injunctive relief in this NEPA suit. Defendants' filing of an environmental impact statement for the project did not moot the appeal since the plaintiff also challenges the statement's sufficiency under the statute. The decision of the Federal Disaster Assistance Administration to provide reimbursement for the project is unquestionably major federal action subject to NEPA, and defendants concede that the district court erred in holding that § 405 of the Federal Disaster Relief Act of 1974 applies retroactively to exempt the project from NEPA's requirements. The court finds that plaintiff has shown a likelihood of success on the merits of its claim that the EIS is inadequate because it fails to consider reasonable alternatives to the project. The court notes in this regard that the Council on Environmental Quality, whose interpretation of the statute is entitled to great weight, also held the limited scope of the EIS to be unwarranted. In addition, the court finds that the balance of harms favors issuance of the injunction. Without such relief, construction of the project may be completed using federal funds without consideration of less environmentally damaging alternatives as required by NEPA. Since only federal reimbursement funding is enjoined, the city will not be seriously injured in view of its asserted ability and intention to continue construction even without federal funding.

For the district court's opinion, see 5 ELR 20195.

Counsel for Plaintiff-Appellant
Durwood J. Zaelke
Frederic P. Sutherland
Center for Law in the Public Interest
10203 Santa Monica Blvd.
Los Angeles CA 90067
(213) 879-5588

Counsel for Defendants-Appellees
Larry G. Gutterridge
Department of Justice
Washington DC 20530
(202) 737-8200

Kenneth W. Downey, Asst. City Attorney
111 N. Hope St.
Los Angeles CA 90051
(213) 481-6368

Browning, Ely & Sharp,^* JJ.

[6 ELR 20487]

Per curiam:

ORDER

To preserve the status quo and protect the jurisdiction of this court, it is ordered that all further action relating to the funding of the Los Angeles Dam and Reservoir Project, including advancement of funds for work already completed, be and it hereby is stayed pending final decision of this appeal. A more specific statement of reasons supporting this order will follow.

ORDER

An order was entered May 26, 1976, enjoining any action of the federal appellees with respect to the granting of funds for the Los Angeles Dam and Reservoir Project until further order of the court. The purpose of this order is to state the reasons for the injunction and to extend its application to all parties.

We first note that the filing of the environmental impact statement (EIS) did not moot the appeal. Appellant sought an injunction against funding or construction of the project until the National Environmental Policy Act (NEPA) had been complied with. The filing of an EIS does not constitute compliance with NEPA unless the substance of the EIS meets the requirements of the statute. As noted below, a substantial showing has been made that the EIS is legally inadequate because it fails to consider reasonable alternatives to the project. There is therefore a continuing controversy as to whether NEPA has been complied with. If appellant prevails in this controversy the court can provide effective relief by enjoining funding or construction of the project until the requirements of NEPA have been satisfied.

So far as funding is concerned, the prerequisites for injunctive relief have been satisfied. Appellant has demonstrated a likelihood of success on the merits. The decision of the Federal Disaster Assistance Administration to fund the project is unquestionably major federal action subject to NEPA. Scenic Rivers Association v. Lynn, 520 F.2d 240, 244 & n. 3 [5 ELR 20536] (10th Cir. 1975). The federal appellees concede that the district court erred in holding that § 405 of the Federal Disaster Relief Act of 1974, 42 U.S.C. § 5175, applies retroactively to exempt this project from NEPA. The EIS is probably inadequate. It considers only those alternatives to the project that would fully restore the design capacity of the prior dam and reservoir. This limitation on the scope of the EIS is based upon an interpretation of the Disaster Relief Act questioned by the Council on Environmental Quality. The Council states that it sees nothing in the Act "that would affect NEPA's requirement to consider all reasonable alternatives" (emphasis in original). The Council's interpretation of the statute is entitled to great weight. Appellees have offered no convincing argument in support of the contrary construction underlying the EIS.

The balance of hardships favors issuance of an injunction. If the injunction is not issued, the project may be completed with federal funds without considering reasonable alternatives having less adverse environmental consequences, in violation of the purposes of NEPA. Natural Resources Defense Council v. Callaway, 524 F.2d 79, 92 [5 ELR 20640] (2d Cir. 1975). Since only funding is enjoined, and since the city has asserted and the district court has found that the city can and will proceed with construction whether or not federal funding is available, the city will not be seriously injured.

Until further order of the court, all appellees should be and hereby are enjoined from taking any action that may result in making federal funds available, or in using such funds, for further construction of the project or for payment of construction already completed.

* District Judge, Western District of Washington, sitting by designation.