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8 ELR 20556 | Environmental Law Reporter | copyright © 1978 | All rights reserved Organizations United for Ecology v. BellNo. 77-729 (446 F. Supp. 535, 11 ERC 1177) (M.D. Pa. January 30, 1978)Granting judgment for defendants, the court rules that plaintiffs are barred by laches from bringing a lawsuit alleging that, pursuant to the National Environmental Policy Act (NEPA), an environmental impact statement (EIS) should have been prepared prior to the grant of a permit for a regional sanitary landfill on federal property. As early as April 1972, local citizens were aware that a site located on the property of the Allenwood Prison would be used for a sanitary landfill. Permits for the construction of the landfill were issued in 1973 by the Bureau of Prisons and in 1974 by the Pennsylvania Department of Environmental Resources. The Bureau of Prisons has never prepared an EIS for the project, but the Environmental Protection Agency, as the lead federal agency for the project, performed an environmental review and issued a negative declaration in 1975. Plaintiffs knew in 1974 that an EIS had not been prepared by the Bureau of Prisons, were aware of a possible cause of action against the Bureau of Prisons involving NEPA violations, and were advised by their attorney in August 1974 that a suit had to be filed in order to stop the project. Plaintiffs' challenge to the project in the state court proved unsuccessful in 1975, but plaintiffs, knowing that they could have pursued a cause of action in the federal court at the same time, declined to file suit in federal court until August 10, 1977, alleging that the regional landfill would jeopardize the water supply for human and livestock consumption and business use. As of the date of filing, plaintiffs knew or should have known that construction had begun on April 19, 1977 and that over half the project had been completed. There are no adequate alternative disposal sites now, nor will there be in the near future. The project will minimize the adverse environmental impact of existing dumps in Lycoming and surrounding counties and will curtail the significant adverse impacts of open dumping. If the landfill is not opened in the near future, Pennsylvania's program of areawide solid waste management will be severely retarded. The court finds that the doctrine of laches may apply to NEPA lawsuits. Save Our Wetlands v. Corps of Engineers, 549 F.2d 1021, 7 ELR 20353 (5th Cir. 1977); Shiffler v. Schlesinger, 548 F.2d 96, 7 ELR 20127 (3d Cir. 1977). Courts which have stated that laches does not preclude a cause of action under NEPA have done so in situations where at least one of the prerequisites for the doctrine's application was missing. City of Davis v. Coleman, 521 F.2d 661, 5 ELR 20633 (9th Cir. 1975); I-291 Why? Ass'n v. Burns, 517 F.2d 1077, 5 ELR 20430 (2d Cir. 1975). Laches is an affirmative defense, and the burden of proof is on defendants to prove three elements: delay by plaintiffs in asserting their claim, lack of excuse for the delay, and undue prejudice to the party against whom the claim is asserted. The court finds that the plaintiffs' delay is inexcusable, rejecting a long list of explanations offered. That plaintiffs were pursuing a remedy in state court is irrelevant because plaintiffs could have pursued a remedy in the federal court at the same time and simply made a tactical decision not to do so. Plaintiffs' claim of financial inability to maintain concurrent lawsuits was not proven at trial. Furthermore, there was insufficient evidentiary support for plaintiffs' arguments that the delay was reasonable on the grounds that they assumed the Bureau of Prisons would comply with NEPA, that the plaintiffs were trying to convince the county commissioners to modify the project, and that the plaintiffs were threatened with personal liability if the federal grant to construct the landfill were lost because of the NEPA suit. Nor is the delay made excusable by plaintiffs' public statements, made over a three-year period, of their intent to seek an injunction against the project. Thus, defendants have met their burden of proof in establishing that plaintiffs engaged in inexcusable delay in failing to bring the suit before August 10, 1977. When attempting to ascertain prejudicial injury in NEPA suits involving the defense of laches, although the primary consideration is the environmental effects of the project, the court may also weigh economic considerations, Steubing v. Brinegar, 511 F.2d 489, 5 ELR 20183 (2d Cir. 1975); City of Rochester v. U.S. Postal Service, 541 F.2d 967, 6 ELR 20723 (2d Cir. 1976), and whether the project has been so substantially completed that there is little likelihood that an EIS would make much difference from an environmental standpoint. Save Our Wetlands, supra. Courts should consider the prejudice to the public as well as to the defendants if the project is enjoined. The court concludes that a failure to open the Allenwood landfill will have net adverse environmental effects because it would cripple attempts to ease the solid waste crisis in the region. The damage to the public from delay in opening the landfill outweighs the damage to the local public from potential jeopardy to the local water supply. Furthermore, much of the physical damage to the scenery has already occurred because the project was more than half finished when this suit was filed. The late entry of the county commissioners and the Pennsylvania Department of Environmental Resources as parties to the suit does not bar them from asserting laches because plaintiffs should have named them as parties initially, and plaintiffs are not prejudiced by an independent assertion of laches by the intervenor. In addition, the court rejects plaintiffs' argument that defendants had an obligation to bring an action for a declaratory judgment to determine whether they were in violation of NEPA. Plaintiffs' suit is barred by laches because of several factors: the inexcusable delay in filing the action, the prejudice which would result to the public should judgment be awarded to plaintiffs, the improbability that an EIS would result in any substantial change in the project, and the financial burden which has already been borne by the county. The full text of this opinion is available from ELR (19 pp. $2.50, ELR Order No. C-1155). Counsel for Plaintiffs Counsel for Defendants Lawrence R. Liebesman John P. Krill, Ass't Attorney General Robert J. Wollet Muir, J. [OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE] 8 ELR 20556 | Environmental Law Reporter | copyright © 1978 | All rights reserved |