Environmental Action Foundation v. Brown

No. 77-59 (D.D.C. April 22, 1977)

The court denies defendants' motion to dismiss for lack of standing to sue and laches in this National Environmental Policy Act (NEPA) challenge to the Defense Department's B-1 bomber program. Plaintiffs are seven organizations professing an interest in the environmental consequences of the B-1 program. Membership organization plaintiffs correctly contend that their members living in the vicinity of B-1 manufacturing and testing sites will be injured in fact by B-1 production and testing and other members will be injured by sonic booms and other adverse, non-site-specific environmental effects of B-1 operations. These injuries are specific, different from possible damage to the general public, and nonspeculative, since threatened rather than actual injury is sufficient to confer standing. In addition, plaintiffs' informational interest, in the context of this NEPA case, is injured by defendants' failure to prepare an environmental impact statement (EIS). The court does not reach the question of whether plaintiffs' right to comment on the EIS has been injured. Plaintiffs fall within the zone of interests protected by NEPA, because no exemption to NEPA exists for strategic military actions. As to laches, defendants have failed to show that plaintiffs' filing four months after the final administrative decision constitutes unreasonable delay, especially since the United States is not bound by any contractual arrangements to complete the B-1 program.

Motions denied except as to plaintiff Oil, Chemical and Atomic Workers Union for failure to answer interrogatories.

For moving papers in this case, see ELR 65426.

Counsel for Plaintiffs
Leonard C. Meeker, Richard A. Frank
Center for Law and Social Policy
1751 N St., NW, Washington DC 20036
(202) 872-0670

Counsel for Defendants
Irwin L. Schroeder
Department of Justice, Washingon DC 20530
(202) 739-2710

[7 ELR 20373]

Flannery, J.:

Memorandum Opinion & Order

This matter comes before the court on defendants' motion to dismiss pursuant to Rule 12 of the Federal Rules of Civil Procedure. Plaintiffs in this action, seven organizations professing an interest in the environmental consequences of the B-1 bomber program, charge that defendants failed to comply with the requirements of the National Environmental Policy Act of 1969 (NEPA),¹ Executive Order 11514,² and various regulations before deciding to produce and deploy a fleet of 241 B-1 bombers. Defendants now move to dismiss on the grounds that plaintiffs lack standing to bring this action and that plaintiffs are barred from pursuing this action by laches.

I. Standing

As most recently formulated by the court of appeals for this circuit, the issue of standing to bring suit subdivides into four separate questions: (1) whether plaintiff is injured in fact; (2) whether plaintiff is arguably within the zone of interest protected by the relevant statute; (3) whether a causal nexus exist between the injury and defendant's actions; and (4) whether the injury is one capable of prevention or redress by appropriate court order. Harrington v. Bush, __ F.2d __, No. 75-1862 (D.C. Cir. Feb. 18, 1977), slip opinion at 28 n. 68; see Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26 (1976); Warth v. Seldin, 422 U.S. 490 (1975); Linda R.S. v. Richard D. 410 U.S. 614 (1973); Association of Data Processing Serv. Org. v. Camp, 397 U.S. 150 (1970). Defendants in this action primarily contend that plaintiffs have failed to demonstrate injury in fact, though they also claim that plaintffs fall outside the zone of interest to be protected by NEPA; defendants appear to concede, however, that plaintiffs would prevail on the third and fourth criteria if injury in fact is shown.

Plaintiffs claim injury in fact on three separate bases. First, the four plaintiffs that are membership organizations³ contend that defendants' actions threaten the interest of their members in living in a clear environment. Members of these organizations allegedly live and work in the vicinity of the manufacturing sites for the B-1 aircraft and its engines and in the vicinity of Edwards Air Force Base in California, site of the proposed B-1 test area. In addition, plaintiffs claim that other members will be injured by emissions and sonic booms produced by the bomber, as these potential injuries are not site specific. Included among the claimed adverse environmental impacts of the project are deterioration of air quality, creation of undue noise, propagation of microwave radiation, and creation of dangerous sonic booms. On the basis of these allegations, plantiffs assert that they fall squarely within the rationale of United States v. SCRAP, 412 U.S. 669 [3 ELR 20536] (1973), and thus have standing to proceed in this action. In SCRAP the Supreme Court upheld an organizational plaintiff's standing where it alleged that its members used the forests, rivers, mountains, and other natural resources in a particular area for recreational and aesthetic purposes and that these uses had been adversely affected by the environmental consequences of defendants' actions. Id. at 678, 688-90. Injury in fact clearly is a sufficiently elastic concept to include noneconomic, adverse environmental impact. See id.; Sierra Club v. Morton, 405 U.S. 727 [2 ELR 20192] (1972); Sierra Club v. Morton, 514 F.2d 856, 868-69 n. 20 [5 ELR 20463] (D.C. Cir. 1975), rev'd on other grounds, 427 U.S. 390 [6 ELR 20532] (1976); Scientists' Institute for Public Information v. Atomic Energy Comm'n, 481 F.2d 1079, 1086-87 n. 29 [3 ELR 20525] (D.C. Cir. 1973); Environmental Defense Fund, Inc. v. Hardin, 428 F.2d 1093, 1096-97 [1 ELR 20050] (D.C. Cir. 1970).

Defendants do not challenge the continued viability of the SCRAP line of cases; rather they suggest that plaintiffs' claimed injuries are too generalized and speculative. Since B-1 bomber operations have not yet resulted in any environmental injury to members of plaintiff organizations, defendants reason that plaintiffs' claims reduce to an assertion that they may be harmed at some time in the future.⁴ The court cannot agree that plaintiffs have presented only a claim of generalized injury, undifferentiated from that suffered by all citizens or taxpayers. In this case plaintiffs have alleged that some of their members live and work in the vicinity of the production and proposed test sites of the B-1 bomber and that these and many more of their members would be injured by the adverse environmental impact of the B-1 bomber program. Such a claim of injury should not be considered too generalized or undifferentiated. Nor is the court convinced that the injury alleged by plaintiffs is too speculative to confer standing. Actual injury is not required; threatened injury is sufficient when the threat is real and immediate. See Linda R.S. v. Richard D., 410 U.S. 614, 617 (1973); O'Shea v. Littleton, 414 U.S. 488, 494 (1974). Although there certainly exist contingencies that could thwart the production of the entire fleet of 241 aircraft — such as a congressional failure to fund the program or an executive decision to abandon or cut back on the fleet — defendants admit that the Secretary of Defense approved the recommendation for the full B-1 fleet. In any major federal program designed to be completed over a period of years, subsequent legislative or executive decisions could result in curtailment or abandonment of the plan. Indeed, in the SCRAP case, subsequent determinations concerning the railroad rate increase could have negated plaintiffs' claim of environmental injury arising from defendants' acts. Moreover, in the present case defendants concede tht they have made a final decision to produce and test at least some B-1 bombers. The only contingency between the present time and plaintiffs' purported actual injury as to those bombers is a temporal one. Thus the court concludes that plaintiffs' claim of injury in fact is not so speculative as to be fatal to their standing to bring suit.

Plaintiffs' second theory of injury in fact and standing in this case, applicable even to the nonmembership organizational plaintiffs,⁵ is that defendants' actions injure plaintiffs' interest in [7 ELR 20374] preparing and distributing informational material. Plaintiffs rely on the court of appeals' decision in Scientists' Institute for Public Information (SIPI) v. Atomic Energy Comm'n, 481 F.2d 1079 [3 ELR 20525] (D.C. Cir. 1973), for the proposition that injury to an informational interest is sufficient to show injury in fact. In SIPI the court considered a challenge under NEPA to the Atomic Energy Commission's determination not to provide an environmental impact statement for the Liquid Metal Fast Breeder Reactor Program. In finding standing for the organizational plaintiff, the court commented:

The activities of the plaintiff orgnization in this case, as described in a memorandum submitted to the District Court on the standing issue, include making available to the public scientific information relevant to important social issues and stimulating and informing public discussion of the scientific aspects of questions of public policy. The AEC's decision not to provide an impact statement on the overall LMFBR program has an adverse effect on these organizational activities by limiting appellant's ability to provide the public information on the LMFBR program. Appellant thus has alleged and shown more than the "mere 'interest in a problem'" held insufficient in Sierra Club. See 405 U.S. at 739, 92 S. Ct. 1361. Any other approach to standing in the context of suits to ensure compliancewith NEPA for long-range Government programs not yet resulting in injury to discrete economic, aesthetic or environmental interests would insulate administrative action from judicial review, prevent the public interest from being protected through the judicial process, and frustrate the policies Congress expressed in NEPA, a result clearly inconsistent with the Supreme Court's approach to standing. See 405 U.S. at 740, 92 S. Ct. 1361.

Id. at 1087 n. 29. No other cases cited by the parties suggest that injury to an informational interest would be sufficient. Indeed, it would appear somewhat doubtful, outside the context of a NEPA suit, that a mere allegation of an injury to an informational interest of an organization would be sufficient to confer standing under the Sierra Club test. 405 U.S. 727, 739 (1972) (mere interest in a problem insufficient). Because of the congressional purposes surrounding the passage of NEPA, however, and the apparent continued vitality of the court of appeals' holding in SIPI,⁶ the court concludes that an injury to an informational interest potentially creates injury in fact. It is clear that these plaintiffs further distinguish themselves from members of the general public in that they allege possession of the skills and resources to prepare and distribute "legal, scientific, and technical information on the B-1 bomber." Complaint P55. In light of these unrebutted allegations, it appears to the court that plaintiffs have shown sufficient injury in fact to warrant standing under a SIPI informational theory.

Plaintiffs third and final claim of injury in fact sufficient to confer standing is that defendants' actions deprive plaintiffs of the opportunity to comment on an environmental impact statement addressing the proposed B-1 bomber fleet of 241 bomber aircraft. Since the court already has found that six of the plaintiffs have demonstrated sufficient injury in fact to merit standing, it need not and does not reach the question of whether injury to a participatory interest is sufficient to confer standing.⁷

Defendants also dispute that plaintiffs have demonstrated that they fall within the zone of interest sought to be protected by NEPA insofar as they allege an interest in an impact statement concerning the combat use of the B-1 bomber. To hold otherwise, in defendants' view, would create under NEPA a right of review by courts of the tactical military policy of the United States. The court cannot read plaintiffs' complaint, however, as seeking review of tactical military policy; rather, they seek review of the environmental impact of the proposed B-1 bomber fleet. Certainly no exemption to NEPA exists for weapons systems or other strategic military actions. Concerned About Trident v. Rumsfeld, __ F.2d __, No. 75-1515 [6 ELR 20787] (D.C. Cir. Oct. 13, 1976), slip opinion at 9-12. Thus the court concludes that plaintiffs fall squarely within the zone of interests sought to be protected by NEPA and finds that they meet that requirement of the standing test.

II. Laches

Defendants suggest that plaintiffs are barred from maintaining this suit because of laches. In order to prevail, defendants must show both that the plaintiff failed to institute this suit with due diligence and that defendants were prejudiced thereby. Powell v. Zuckert, 366 F.2d 634, 636 (D.C. Cir. 1966). Because of the court's decision on the question of whether plaintiff unreasonably delayed institution of this suit, the court does not reach the second question of whether defendants were prejudiced by plaintiffs' alleged lack of diligence.

Defendants contend that the final administrative action concerning the subject matter of the present suit occurred on September 24, 1976, the date of the filing of the final B-1 impact statement. Plaintiffs filed the present lawsuit January 11, 1977, less than four months later. Plaintiffs suggest that December 2, 1976, the date defendants decided to proceed on procuring and deploying the B-1 fleet without preparation of a final impact statement concerning the whole fleet, should be considered the relevant date for purposes of computation. Even if the court uses defendants' suggested date of September 24, 1976, that interval does not constitute unreasonable delay. Defendants have failed to cite any NEPA case in which a delay of less than four months was held to have been unreasonable delay, nor is the court aware of any. In addition, nothing in the present case suggests that plaintiffs were not diligent. Counsel undoubtedly had to gather a good deal of information and research the relevant law before filing the complaint. Coordination between seven separate plaintiffs, two of whom are based outside of Washington, inevitably takes some time.

Finally, defendants have failed to cite adequate countervailing reasons why an immediate filing of a lawsuit was necessary in this case so as to make a four month delay undue and unreasonable. Although defendants contend that during the four month interim the United States entered binding contracts for production of the B-1 bomber, they admit that the contracts concerned only three of a proposed 241 bomber aircraft. The United States is not at the present time bound by any contractual obligation to complete the balance of the B-1 program. On the whole it appears that plaintiffs have brought this challenge to the B-1 program at an early stage in that program's development. The court therefore concludes that plaintiffs exercised the requisite diligence and that they did not unreasonably delay institution of the present suit. Accordingly, this action will not be dismissed on the grounds of laches.

Accordingly, it is, by this court, this 22nd day of April, 1977,

ORDERED that defendants' motion to dismiss be, and the same hereby is, denied as to all plaintiffs except the Oil, Chemical and Atomic Workers International Union; and it is further

ORDERED that defendants' motion to dismiss be, and the same hereby is, granted as to plaintiff Oil, Chemical and Atomic Workers Union; and it is further

ORDERED that plaintiff Oil, Chemical and Atomic Workers Union hereby is dismissed as a plaintiff in this action; and it is further

ORDERED that defendants shall file their opposition to plaintiffs' motion for summary judgment, as well as any cross motion for summary judgment that they deem appropriate, no later than May 3, 1977; and it is further

ORDERED that plaintiffs shall oppose any motion for summary judgment by defendants no later than ten days after the filing of such motion.

1. 42 U.S.C. § 4321 et seq.

2. 3 C.F.R. 271.

3. The four are Federation of American Scientists, Environmental Action, Friends of the Earth, and Americans for Democratic Action.

4. Defendants also contend that plaintiffs lack standing under the rationale articulated by Judge Robinson in the case of Animal Welfare Institute v. Richardson, 7 ELR 20073 (D.D.C. Dec. 23, 1976) (appeal pending). In that case, however, standing was denied because plaintiff organizations failed to show that their members even could visit the area that they claimed an interest in studying and thus failed to show injury in fact. Here, plaintiffs allege that their members live and work in the affected area.

5. Plaintiffs do not include plaintiff union in this claim.

6. Defendants attempt to discredit the vitality of the SIPI opinion by claiming that the Supreme Court implicitly overruled in Kleppe v. Sierra Club, 427 U.S. 390 [6 ELR 20532] (1976). In Sierra Club, however, the Court considered the question of when a region-wide impact statement was required under NEPA and did not consider any standing issue.

7. The seventh plaintiff, the Oil, Chemical and Atomic Workers International Union, has failed to answer certain interrogatories propounded by defendants in this case, and the court will dismiss the union for its unjustified failure to file these answers.