Wingfield v. Office of Management and Budget

No. 77-0489 (D.D.C. April 4, 1977)

The court dismisses, for lack of standing to sue, plaintiff's suit alleging that a National Environmental Policy Act (NEPA) environmental impact statement (EIS) must be prepared for legislative proposals to regulate strip mining. Plaintiff owns property on which surface and underground mining occurs and seeks to enjoin the defendant and other federal agencies from submitting strip-mining proposals to Congress without including an EIS as required by NEPA. Plaintiff's economic interest in these formative legislative developments is highly speculative. NEPA requires that an EIS be filed for initial legislative proposals but not for every subsequent recommendation on pending legislation. In any event, this NEPA provision was not intended to create a private right of action to challenge the continuing legislative process. Plaintiff's challenge that the Council on Environmental Quality (CEQ) is not following its own regulations by submitting recommendations without an EIS must also be dismissed for lack of standing, because the injury is speculative and depends upon the tenuous assumption that CEQ's proposals will be enacted into law.

Counsel for Plaintiff
Raymond Peck, James M. Day, Mark Savit, Gerard F. Doyle
Cotten, Day & Doyle
1200 18th St., NW, Washington DC 20036
(202) 659-9505

Counsel for Defendants
Floyd L. France, Irwin L. Schroeder, Lawrence Hannaway
Land & Natural Resources Division
Department of Justice, Washington DC 20530
(202) 739-2710

[7 ELR 20362]

Gessell, J.:

THE COURT: Plaintiff in this case owns substantial properties where surface mining and underground mining operations are progressing. He has filed a seven-count complaint, which asks for declaratory judgment and in other respects seeks an injunction and mandamus, with the view to preventing various agencies of the federal government from submitting or continuing to submit to the Congress, without accompanying environmental impact statements, various reports and recommendations on pending legislation before the Congress, which in various aspects affects surface coal mining operations and the reclamation of abandoned mines.

Strip mining legislation, so-called, has been pending in Congress in various forms since original proposals were made to the 93rd Congress by President Nixon's administration in 1973.

The legislation was eventually defeated by pocket veto of President Ford. Later it was reenacted, still during President Ford's administration, and then successfully vetoed by him.

In January 1977, it was reintroduced in substantially the same form, prior to the inauguration of President Carter; and it is apparent from an exhibit in evidence that the Carter Administration has since urged expeditious passage of the legislation.

The papers indicate that legislative reports and recommendations are being developed by the Department of Interior, by the Department of Agriculture, the Environmental Protection Agency, Federal Energy Administration, CEQ, and others.

Plaintiff relies on the following provision of NEPA, in 42 U.S.C. § 4332(2)(C), which reads:

The Congress authorizes and directs that to the fullest extent possible all agencies of the Federal Government shall 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.

Quite simply, plaintiff contends that the Department of Interior and other agencies of the federal government are in the process of submitting recommendations or reports on the earlier proposals for legislation which significantly affect the quality of human environment; but it is alleged they are not now planning to accompany them with detailed environmental impact statements and in some instances have already submitted recommendations without such statements.

Defendants have moved to dismiss, claiming lack of standing, and suggesting that the court should refrain from interfering in what is essentially a political matter involving the Executive and the Congress.

Plaintiff urges there is adequate standing because of the direct economic interest of the plaintiff in the outcome of the proposed legislation and contends that no political question is presented inasmuch as plaintiff seeks an injunction not against the Congress but solely against the executive departments which I have named to stop them from proceeding in a manner which Congress has stated would be inappropriate.

He also alleges that the CEQ is not complying with the Administrative Procedure Act in that it has failed to adhere to its own regulations.

Plaintiff's economic interest in these legislative developments is highly speculative inasmuch as the legislation is still in the formative stage; and there is no indication of what the effect, if any, will be upon his affairs in the event some legislation of some kind is enacted.

His interest as a member of the public is even more speculative. However, these NEPA standing questions need not be addressed as far as plaintiff's NEPA claims are concerned.

Upon examination of the statute, it appears to the court perfectly clear that Congress desired to have recommendations or reports on proposals supported by environmental impact statements at the time the initial legislative proposals were made. It is less clear that Congress intended that every subsequent recommendation or report on pending legislation was to be treated as a proposal and hence subject to an additional environmental impact statement.

Even this need not be decided as a matter of statutory construction. This particular provision, however interpreted, was designed solely to aid the Congress and was not intended to create a right of action in a private party to claim injury in some fashion from the ongoing legislative process.

Congress has within its own investigatory and other resources ample means to obtain from the Executive whatever information it desires relating to environmental impact prior to taking action. It is clear, of course, that Congress did not intend to stultify itself by this legislation if at any point it was satisfied it had enough information to proceed, in a given situation.

The ability of Congress by various means at its disposal to obtain whatever environmental information it deems necessary to perform its function is, of course, undisputable.

For the court to interject itself into the complexities of the ongoing legislative process at the behest of a private party would require the clearest kind of directive from Congress, which is not present here.

[7 ELR 20363]

Moreover the issue presented is, by its implications at least, a highly political question. It places the court in conflict with coordinate branches of the government, since even plaintiff recognizes that the President himself, whatever the strictures of the Act, could present whatever proposals and recommendations he chose to the Congress without reference to NEPA.

The political nature of the issue is sharply emphasized by the prayer for preliminary injunction which was made today.

It appears that the Secretary of the Interior, at the request of the Chairman of the Committee on Interior and Insular Affairs of the House of Representatives, is scheduled to appear tomorrow before that committee to testify on behalf of the Executive Branch with respect to this legislation and will propose certain amendments to the pending bills which will ban mining on prime and unique farmlands.

An immediate preliminary injunction is urged to interfere with this testimony.

Apart from the NEPA issues, one other aspect of standing must, however, be addressed.

Although other agencies of the government are not bound by the CEQ regulations, CEQ, itself, of course, under established principles found in the Administrative Procedure Act, is required to adhere to its own regulations; and it is indicated that it is not doing so in this particular instance. This raises a clear question of standing.

Plaintiff's alleged injury here is to his economic interest in surface mining should CEQ's recommendations become law. While the fact that harm may occur in the future is not necessarily fatal to standing, it can lessen the concreteness of the controversy and thus mitigate against a recognition of standing, as was pointed out in Harrington v. Bush, a decision of our Circuit on February 18 of this year.

Examining the situation, the court feels that the injury here is too speculative and remote to support standing. The injury here would occur only if the House accepts CEQ's recommendations, the Senate accepts them as well and that the legislative package as finally passed by both Houses is signed into law by the President.

I would cite in this regard also Metcalf v. National Petroleum Council [7 ELR 20218], also decided February 18, 1977 by our court of appeals.

In addition, it should be pointed out that this injury, if any, would be created by the passage of legislation by congress and its approval by the President. It would not be caused by defendants here but by the independent action of third parties not before the court. As Simon v. Eastern Kentucky Welfare Rights Organization in 426 U.S. 26 teaches, this provides further reason for concluding that plaintiff has no standing to complain of this alleged violation by CEQ of the Administrative Procedure Act.

Accordingly, I have come to the conclusion that the motion to dismiss must be granted. Of course, it follows that the prayer for preliminary injunction is denied.