Environmental Defense Fund, Inc. v. Higginson

No. 78-1135 (D.D.C. April 25, 1979)

The court denies a motion to dismiss a suit seeking a declaratory judgment that the Bureau of Reclamation must prepare a comprehensive environmental impact statement (CEIS) analyzing existing and future water resource projects and operations in the Colorado River Basin by a certain date. The acquiesence of defendants in plaintiffs' contention that the National Environmental Police Act (NEPA) requires preparation of a CEIS does not deprive the court of jurisdiction for want of a case or controversy since there is an actual, unfeigned dispute as to when the CEIS is required and since the defendants' limited acquiescence in plaintiffs' position is subject to later repudiation. The intervention of four states who contect the assertion that NEPA requires a CEIS in this case provides an independent factor satisfying the Declaratory Judgment Act's requirement for an actual controversy.

Counsel for Plaintiffs
William M. Butler
Environmental Defense Fund, Inc.
1525 18th St. NW, Washington DC 20036
(202) 833-1484

Counsel for Defendants
William M. Cohen, David C. Cannon, Jr.
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2775

[9 ELR 20329]

Flannery, J.:

Memorandum Opinion

This matter comes before the court on the motion of the federal defendants to dismiss the above-captioned action pursuant to Rule 12 of the Federal Rules of Civil Procedure. The plaintiffs have brought suit seeking a declaratory judgment that under § 102(c) of the National Environmental Policy Act (NEPA) of 1969, 42 U.S.C. § 4321 et seq., the federal defendants must prepare a comprehensive environmental impact statement (CEIS) analyzing existing and future water resource projects and operations in the Colorado River Basin, and that the defendants must complete the CEIS by a certain date. As part of the prayer for relief contained in the complaint, the plaintiffs ask the court to enjoin the construction of nine planned federal water resource projects in the basin pending completion of the CEIS. In their answer, the federal defendants do not dispute the contention that NEPA requires preparation of a CEIS, but resist the claim that NEPA imposes time constraints upon completion of the impact statement. The intervenor-defendants, four of the basin states and a public utility operating in the basin, assert that NEPA does not require preparation of a CEIS.

The motion now before the court follows closely upon the heels of legislative developments that were inspired by this litigation. In a rider to the Department of the Interior's 1979 appropriations bill, H.R. 12932, Congress stated that construction of the nine water resource projects enumerated in the complaint "shall proceed," notwithstanding any NEPA requirement for a CEIS, if site-specific EISs have been prepared for those projects. Pub. L. No. 95-465, § 110, 92 Stat. 1279, 1291. The federal defendants argue that, because they agree with the plaintiffs that a CEIS is legally required, there is no case or controversy as to that issue and therefore that the court lacks [9 ELR 20330] subject-matter jurisdiction over the claim. The federal defendants move under Rule 12(b)(6) to dismiss what they see as the only remaining controversy in this suit — whether NEPA requires completion of the CEIS by a certain date.They contend that § 110 of Pub. L. No. 95-465, which bars injunctive relief directed against the nine water projects specified in the complaint, removes the inherent timing pressures for compliance with NEPA, and that the court should dismiss this remaining count for failure to state a claim upon which relief can be granted. The intervenor-defendants continue to insist that NEPA does not require preparation of a basinwide CEIS, but support the motion to dismiss both on the grounds stated by the federal defendants and on additional grounds. For the reasons set forth below, the court concludes that the acquiescence of the federal defendants in the plaintiffs' contention that NEPA requires preparation of a CEIS does not deprive the court of jurisdiction to adjudicate that question. As a result of this narrow holding, the court need not reach the question of the timing of the CEIS, is one is legally required, and intimates no view on the court's power to grant injunctive relief not specifically precluded by the recent congressional action.

The Declaratory Judgment Act's limitation to cases of "actual controversy," 28 U.S.C. § 2201, brings the statute within Article III, § 2 of the Constitution, which empowers federal courts to rule only on a "case or controversy." Aetna Life Insurance Co. v. Haworth, 300 U.S. 227 (1937). Whether or not particular facts are sufficient to create an actual controversy must be decided on a case-by-case basis. The Supreme Court has stated that "the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941). See also Lake Carriers Association v. MacMullan, 406 U.S. 498, 506 [2 ELR 20283] (1972). The court finds that the present case involves an actual controversy that is suitable for judicial resolution.

The single decision upon which the federal defendants rely in support of their motion under Rule 12(b)(1), Moore v. Charoltte-Mecklenburg Board of Education, 402 U.S. 47 (1971), does not counsel dismissal of the present case. Both parties in Moore argued that a portion of North Carolina's anti-busing statute was constitutional. In dismissing the case, the Court declared that:

We are thus confronted with the anomaly that both litigants desire precisely the same result, namely a holding that the anti-busing statute is constitutional. There is, therefore, no case or controversy within the meaning of Art. III of the Constitution.

Id. at 48. The Court in Moore was confronted with collusive litigation in which the parties, although formally independent, affirmatively desired the same result. In the present case, the plaintiffs and the federal defendants are not feigning adversariness in order to secure from the court advisory approval of a particular legal position. Indeed, the federal defendants concede that, although the government currently agrees that NEPA requires a CEIS for the Colorado River Basin, it is possible the agency subsequently might adopt a different view of the requirements of the statute. Courts have held that a justificable case is presented where there exists the possibility a defendant acquiescing in a claim made by a plaintiff later could repudiate its position. See, e.g., Kirkley v. Maryland, 381 F. Supp. 327, 329 (D. Md. 1974).

The intervention of parties who contest the assertion that NEPA requires a CEIS is a second, independent factor satisfying the Declaratory Judgment Act's requirement of an actual controversy. The intervenor-defendants sought to intervene in this action on the ground that the federal defendants, having conceded the position that a CEIS is legally required, would not represent adequately rights that might be affected adversely by a declaratory judgment upholding the plaintiffs' claim. Even if "the adversary nature of the proceedings was most dubious" before intervention, "after that intervention the case became highly adversarial and . . . it became . . . a case or controversy entitled to treatment as such within the contemplation of the [Declaratory Judgment Act]." Associated General Contractors of America, Inc. v. Laborers International Union, 476 F.2d 1388, 1403 (Temp. Emer. Ct. App. 1973). See also Adams v. Morton, 581 F.2d 1314, 1319 (9th Cir. 1978). The intervenor-defendants will have the opportunity to argue their case in opposing the plaintiffs' pending motion for summary judgment.^* As the Court of Appeals for the Ninth Circuit observed in Adams v. Morton, id., which presented an alignment of parties identical to that in this action, the fact that the government may not agree with the plaintiffs' "statutory interpretation does not affect the power of the court to adjudicate otherwise."

An appropriate Order accompanies this Memorandum Opinion.

Order

Upon consideration of the motion to dismiss and the motions filed in support thereof and in opposition thereto, and the court having heard the oral argument of counsel, and for the reasons set forth in the court's Memorandum Opinion filed this day, it is, by the court, this 25th day of April 1979,

ORDERED that the motion to dismiss be, and the same hereby is, denied; and it is further

ORDERED that the court's order of January 26, 1979 staying discovery in this case be, and the same hereby is, dissolved; and it is further

ORDERED that all discovery in this case shall be completed no later than May 25, 1979; and it is further

ORDERED that the defendants shall respond to the plaintiffs' motion for summary judgment no later than June 22, 1979; and it is further

ORDERED that the plaintiffs shall file their reply within fourteen (14) days of the date of filing of the defendants' response.

* The court cannot agree with the contention of the four state intervenor-defendants that Congress has provided in § 110 of Pub. L. No. 95-465 that NEPA does not require preparation of a CEIS for the Colorado River Basin, and therefore that the court should dismiss this action as moot. Neither the language of § 110 nor the legislative history of that provision supports the construction urged by the states.