Atchison, T. & SF Ry. Co. v. Callaway

• Decision Date: 10 September 1979
• Docket Number: Civ. A. No. 74-1190,74-1191.
• Citation: 480 F. Supp. 972
• Parties: ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, et al., Plaintiffs, v. Howard H. CALLAWAY et al., Defendants. IZAAK WALTON LEAGUE OF AMERICA et al., Plaintiffs, v. Howard H. CALLAWAY et al., Defendants.
• Court: U.S. District Court — District of Columbia

480 F. Supp. 972

ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, et al., Plaintiffs, v. Howard H. CALLAWAY et al., Defendants.

IZAAK WALTON LEAGUE OF AMERICA et al., Plaintiffs, v. Howard H. CALLAWAY et al., Defendants.

Civ. A. Nos. 74-1190, 74-1191.

United States District Court, District of Columbia.

March 16, 1979.

On Motion to Narrow Issues September 10, 1979.

Joseph V. Karaganis, Sanford R. Gail, Joseph D. Feeney, Stuart E. Vaughn, Chicago, Ill., for plaintiffs.

Richard Boyd, Asst. Atty. Gen. of Wisconsin, Madison, Wisc., for plaintiff-intervenor, State of Wisconsin.

Fred R. Disheroon, Irwin L. Schroeder, Dept. of Justice, Washington, D.C., for defendants.

Ramsay D. Potts, George V. Allen, Jr., J. Thomas Lenhart, Washington, D.C., for defendant-intervenor, Association for the Improvement of the Mississippi River.

MEMORANDUM OPINION

CHARLES R. RICHEY, District Judge.

Several environmental organizations and Midwestern railroads brought these actions in August of 1974, seeking to enjoin officials of the Army and the Army Corps of Engineers from letting bids for the reconstruction of Lock and Dam 26 located at Alton, Illinois. The plaintiffs claimed that the Army Corps of Engineers' actions at Alton foreshadowed their intention to rebuild the entire Upper Mississippi River System. The gravamen of the original complaint was that these actions violated the National Environmental Policy Act (hereinafter, "NEPA"), 42 U.S.C. § 4321 et seq., as well as other statutes, because the Army Corps of Engineers had failed to obtain Congressional authorization for the project, and prepared an Environmental Impact Statement (hereinafter, "EIS") inconsistent with the facts and the law because it inadequately assessed the benefits and costs of their plan, and failed to consider the available alternatives.

On August 6, 1974, a temporary restraining order was issued enjoining the defendants from letting bids for the construction of the proposed Lock and Dam 26. On September 6, 1974, the Court issued a preliminary injunction prohibiting the defendants from proceeding with the project until the defendants obtained the consent of Congress and cured the defects in the EIS. 382 F.Supp. 610 (D.D.C. 1974). In 1976, the Corps withdrew its original two-lock proposal, and instead sought Congressional authorization for a single-lock replacement facility with an estimated annual capacity significantly less than that recommended in the original proposal. On May 2, 1977, the Court dissolved the preliminary injunction without prejudice because no construction was eminent. 431 F.Supp. 722 (D.D.C. 1977). At the same time, the Court denied the motion to dismiss of the defendants and the defendant-intervenors, and held that NEPA requires the Corps of Engineers to submit an EIS to Congress with its proposal for authorizing legislation for the construction of a replacement Lock and Dam 26. Furthermore, the Court held that plaintiffs in these actions have a right of action and standing to challenge the adequacy of the EIS prepared by the defendants. Finally, the Court held that plaintiffs' claims for declaratory relief as to the adequacy of the EIS is justiciable. On October 4, 1978, the Court denied the parties' cross-motions for summary judgment, in part, and ordered that an evidentiary hearing be held to resolve disputed issues of material fact with respect to the issue of the adequacy of the Final EIS prepared by the Corps of Engineers to accompany its proposal of legislation authorizing the construction of Lock and Dam 26. 459 F.Supp. 188 (D.D.C. 1978). On October 21, 1978, President Carter approved Public Law 95-502, which authorized a single lock replacement for Lock and Dam 26. On December 11, 1978, the plaintiffs filed an amended complaint. Currently before the Court are the renewed motions of the federal defendants and the intervenor-defendants for summary judgment. The basis for the instant skirmish in the episodic saga of Lock and Dam 26 is disagreement over the effect of the enactment of Public Law 95-502. For the reasons that follow, the Court will deny the renewed motions for summary judgment.

The federal defendants accurately portray the essential effects of Public Law 95-502:

(1) It authorizes the construction of a replacement Lock and Dam 26 at Alton;

(2) It requires the development of a master plan for the Upper Mississippi River System following a comprehensive study of the effects of expansion of the navigational capacity beyond that to be afforded by the new lock;

(3) It prohibits further expansion of the navigational capacity of the Upper Mississippi System until the Congress approves a master plan for its management; and

(4) It establishes a user charge on the inland waterways in order to recover some of the public investment in those waterways.

The defendants and the defendant-intervenor, Association for the Improvement of the Mississippi River (hereinafter, "AIMR"), contend that summary judgment should now be granted because the issues in this case have been decisively dealt with by Congress. Since the plaintiffs are challenging the adequacy of a legislative EIS, which is primarily prepared for the benefit of Congress, once Congress has acted, it is contended that judicial enforcement of NEPA is improper. According to the defendant intervenor:

Legislation cannot be vacated or otherwise rendered ineffective or unenforceable by a court on the ground that congressional procedure failed to comply with NEPA. A law is not to be declared invalid because the antecedent legislative recommendation was accompanied by an EIS which a court pronounces to be defective. An after-the-fact judicial declaration that the legislative EIS was inadequate is an affront to Congress. NEPA was plainly not intended to authorize courts to protect Congress from its own future inability to discern EIS inadequacies or to withhold action on Executive Branch proposals which are accompanied by a defective EIS.

Defendant-intervenor AIMR's Memorandum on the Effect of Congressional Action on this Case, at 11 (November 13, 1978).

This approach illustrates AIMR's misperception of the Court's role in this controversy. The issue presented to this Court by the defendant's actions and the plaintiffs' suit is simply not as facile as the defendants apparently contend. Congress has enacted both Public Law 95-502 and NEPA. The former requires the Corps of Engineers to submit legislative EIS's to Congress. The plaintiffs have challenged the adequacy of the EIS submitted to Congress with respect to Public Law 95-502. Nowhere in Public Law 95-502 has Congress indicated that it wants Public Law 95-502 to be exempt from NEPA's exacting requirements. Congress has shown that it is fully capable of expressing its desire to exempt projects from the environmental laws. For example, the Trans-Alaska Pipeline Act, Public Law 93-153, provides that "actions . . . shall be taken without further action under the National Environmental Policy Act." Furthermore, in this case, rather than expressing any intention to exempt the project from NEPA, members of Congress made several statements indicating that they fully expected this Court to proceed with the determination of the adequacy of the EIS:

MR. SCHMITT. One, with respect to the court case of Judge Richey, that case has basically two components or two hurdles that need to be surmounted. One was the lack of authorization of locks and dam 26 and two was the adequacy of the environmental impact statement on locks and dam 26.

The bill at least clears the initial hurdle, that is, a lack of authorization of the facility. The Department of Transportation has in addition said that it will do all it can to expedite the decision on the second hurdle. So I believe that at least we have taken a step in the right direction.

Cong.Rec.S. 18050 (daily ed. Oct. 10, 1978). (Remarks of Senator Schmitt). See also Cong.Rec.S. 10477 (daily ed. June 22, 1977) (Statement of Senator Nelson); Cong. Rec.H. 2700 (daily ed. October 13, 1978) (Statements of (Representative Edgar); Cong.Rec.S. 6603 (daily ed. May 1, 1978) (Statements of Senator Long).

Moreover, the Supreme Court has made it perfectly clear that repeal by implication is disfavored especially in the environmental context. Tennessee Valley Authority v. Hill, 437 U.S. 153, 190, 98 S.Ct. 2279, 2299, 57 L.Ed.2d 117 (1978). In Hill the Court stated that "`in the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable.'" Id. quoting Morton v. Mancari, 417 U.S. 535, 550, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974). In this case, there has been no demonstration of any intention to repeal NEPA, and plainly the two statutes are not irreconcilable. In the words of Committee for Nuclear Responsibility v. Seaborg, 149 U.S.App. D.C. 380, 382, 463 F.2d 783, 785 (1971), "there is, of course, nothing inconsistent with adoption of appropriations and authorizations measures on the pro tanto assumption of validity, while leaving any claim of invalidity to be determined by the courts." See National Audubon Society v. Andrus, 442 F.Supp. 42, 46 (D.D.C. 1977).

Accordingly, the motions for summary judgment are denied. An order in accordance with the foregoing will be issued of even date herewith.

ON MOTION TO NARROW ISSUES

Defendants have moved to narrow the issues in this case on the eve of trial. Specifically, they have requested the Court to decline review of all aspects of the "cost/benefit" analysis performed by the defendant United States Army Corps of Engineers pursuant to the Water Resources Policy Act of 1965, 42 U.S.C. § 1962 et seq. and the Corps' planning regulations, 33 C.F.R. pts. 290-295 (1978). Because the Court is persuaded that defendants' motion has a limited veracity, it grants the motion in part and dismisses counts I, II, IV, V, VI, VII and IX of plaintiffs'...