Utah v. Andrus

No. C-78-0391 (D. Utah July 6, 1979)

Granting defendants' motion to dismiss, the court rules that construction of individual water projects need not be delayed pending preparation of a comprehensive basinwide environmental impact statement (EIS) for Colorado River water resource development once final site-specific EISs are filed. After the filing of this lawsuit, in which plaintiffs sought a declaratory judgment that the National Environmental Policy Act (NEPA) did not require a basinwide EIS, Congress passed a rider to the Interior Department appropriations bill which provided that notwithstanding NEPA, construction of an individual project could proceed once a final site-specific EIS was prepared. The court rules that this provision moots any injury to plaintiffs from asserted delays in construction due to preparation of a basinwide EIS. On the other hand, whether NEPA requires a basinwide EIS, as argued by defendants, remains open to dispute. Because Congress has not yet funded preparation of such a comprehensive EIS and because no injury can occur prior to its completion, which will not be earlier than 1985, this issue is not yet ripe for review.

Counsel for Plaintiffs
Richard L. Duwsnup, Dallin W. Jensen, Ass't Attorneys General
301 Empire Bldg., 231 E. Fourth St., Salt Lake City UT 84111
(801) 533-5261
Edward W. Clyde
Clyde & Pratt
351 S. State St., Salt Lake City UT 84111
(801) 322-2516

Counsel for Defendants
Wallace Boyack, Ass't U.S. Attorney
350 S. Main St., Salt Lake City UT 84101
(801) 524-5685

William M. Cohen
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2775

[9 ELR 20616]

Jenkins, J.:

Memorandum and Order of Dismissal

Plaintiffs, the State of Utah and the Central Utah Water Conservancy District, have an interest in the waters of the Colorado River which they intend to put to beneficial use through the Central Utah Project. At the time this action was filed, October 1978, the position of the defendant Secretary of the Interior was that a basinwide environmental impact statement (EIS) regarding development of the entire Colorado River was required by the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332(2)(C).¹ At that time plaintiffs claimed that anticipated delays caused by the preparation of a basinwide EIS (as opposed to a site-specific EIS regarding only a single project or part of a project) would seriously impair their right to develop and beneficially use Colorado River waters via the Central Utah Project. Plaintiffs sought a Declaratory Judgment that NEPA did not require such a basinwide EIS on the Colorado River.

Shortly after this action was filed, Congress passed a rider to an Interior Department appropriations bill (H.R. 12932, P.L. 95-465) which provided in § 110 that notwithstanding NEPA, construction of Colorado River water project features, ". . . shall proceed if a final Environmental Impact Statement has been filed on such feature." All parties agree, and this court finds, that this enactment means that so long as a site-specific EIS has been filed for a project or project feature, construction on that project or feature shall not be halted or delayed by the preparation of a basinwide EIS.

Although plaintiffs concede that the only present injury complained of is "delay in construction," they move this court for summary judgment granting the declaratory relief prayed for in the complaint, on the theory that H.R. 12932 not only bars delays in construction caused by preparation of the basinwide EIS, but also bars the preparation of the basinwide EIS. The position of the Secretary is that he should be allowed to continue with a basinwide EIS, so long as preparation does not affect construction. He has filed a Motion to Dismiss plaintiffs' complaint on the ground that H.R. 12932 has extinguished any injury to plaintiffs and thus they lack standing and at this point have presented no "case or controversy" for court determination.

Plaintiffs argue that if preparation of a basinwide EIS is allowed to proceed, the completed EIS could form the basis for a decision by appropriate agencies halting or delaying construction, in violation of the intent of H.R. 12932. They also assert a present injury in that on an ongoing basis they are making important decisions concerning the Central Utah Project that could be affected by a completed basinwide EIS. The parties agree that a basinwide EIS will not be completed before 1985. It appears that a basinwide EIS has not yet been funded by Congress. The Secretary argues that a basinwide EIS would be useful for informational purposes and that the specific use to which such an EIS will be put is presently unknown.

It appears to the court that H.R. 12932 has mooted any injury to plaintiffs occurring from delays in construction caused by the preparation of a comprehensive basinwide EIS. It also appears that the parties have a good faith dispute as to whether H.R. [9 ELR 20617] 12932 bars the basinwide EIS or whether NEPA authorizes preparation of a basinwide EIS where a site specific EIS has been filed.

What plaintiffs are asking from the court is a determination in the nature of an advisory opinion. Such is not permitted by way of declaratory relief, absent disputed issues ripe for decision.

This court must conclude that where the basinwide EIS complained of has not yet been funded or written and where it is undisputed that no injury can occur until after the earliest date for completion of the EIS, 1985, and where it is unknown what the results of that EIS might be or for what purpose it will be used, the issues in this case that have not been mooted by H.R. 12932 are not ripe for decision. In short, the anticipated injuries of which plaintiffs now complain may not occur. For example, Congress will have the opportunity to decide the fate of the Colorado River basinwide EIS when it decides whether or not to fund its preparation. Plaintiffs admit that site-specific environmental impact statements have not yet been filed for many features of the Central Utah Project. Thus it would be premature and unnecessary at this point for this court to decide any issues other than the issue decided above, i.e., that H.R. 12932 bars delays in construction attributable to the preparation of a basinwide EIS.

Therefore, in light of the foregoing, it is hereby ORDERED that plaintiffs' Motion for Summary Judgment is denied; defendants' Motion to Dismiss is granted.

1. Section 4332:

The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, & public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall —

(A) . . . .

(B) . . . .

(C) 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 on —

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.