Coalition for Environment v. Volpe, s. 72-1769

• Decision Date: 06 September 1974
• Docket Number: 72-1770,Nos. 72-1769,s. 72-1769
• Parties: , 4 Envtl. L. Rep. 20,717 COALITION FOR THE ENVIRONMENT et al., Appellants, v. John A. VOLPE et al., Appellees. COALITION FOR THE ENVIRONMENT et al., Appellants, v. LINCLAY DEVELOPMENT CORPORATION et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 156

504 F.2d 156

6 ERC 1872, 4 Envtl. L. Rep. 20,717

COALITION FOR THE ENVIRONMENT et al., Appellants, v. John A. VOLPE et al., Appellees.

COALITION FOR THE ENVIRONMENT et al., Appellants, v. LINCLAY DEVELOPMENT CORPORATION et al., Appellees.

Nos. 72-1769, 72-1770.

United States Court of Appeals, Eighth Circuit.

Submitted Oct. 17, 1973.

Decided July 31, 1974, As Modified on Denial of Rehearing

Sept. 6, 1974.

Lewis C. Green, St. Louis, Mo., for appellants.

Neil Proto, Atty., Dept. of Justice, Washington, D.C., for Government.

F. William McCalpin, St. Louis, Mo., for Linclay.

John H. Gladden, Jefferson City, Mo., for Commission.

Before LAY and BRIGHT, Circuit Judges, and EISELE, District Judge. ^*

EISELE, District Judge.

This case ¹ is before the Court on appeal from summary judgment entered on behalf of defendants Linclay Development Corporation and Earth City Corporation and from orders of dismissal entered on behalf of all of the other defendants in the court below. The trial court's memorandum opinion is reported at 347 F.Supp. 634 (E.D.Mo.1972). Chief Judge Meredith ruled the plaintiffs lacked standing to bring the suit. He found, applying the 'injury in fact' test as utilized in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), 'that none of the plaintiffs has standing to prosecute this action as plaintiffs cannot allege facts showing they have suffered or will suffer injury, economic or otherwise.' 347 F.Supp. at 638. The trial judge in another portion of the opinion characterized the alleged injuries of plaintiffs as follows:

The only injury to plaintiff is the apparent fact that the actions of defendants are personally displeasing or distasteful to them due to the parties' differing philosophies of land-use planning. The plaintiffs want open space, while the corporate defendants want a planned urban community. Judicial review does not extend under the (Administrative Procedure Act) to those who seek to do no more than vindicate their own value preferences through the judicial process.

Id. We disagree with this characterization of plaintiffs' allegations of injury and believe the court erred in granting summary judgment and in granting the motions to dismiss on the basis of plaintiffs' lack of standing. Accordingly, the case will be remanded for further proceedings.

Parties-- Plaintiff

Coalition for the Environment (hereinafter Coalition) is a nonprofit corporation comprised of approximately fifty affiliated member organizations and 800 individual members. Although the organization maintains no membership records, it estimates it represents the environmental interests of some 250,000 people residing in the St. Louis region. Citizens for a Healthful Environment (hereinafter Citizens) is also a nonprofit corporation. It is concerned with protecting and preserving a natural and healthful environment in and around the City of Bridgeton, in St. Louis County, Missouri. St. Charles Enthusiasts for a Natural Environment (hereinafter SCENE) is a nonprofit corporation that seeks to achieve sound environmental objectives with respect to air, water and soil for the general welfare and benefit of the citizens of St. Charles County, Missouri. Individual plaintiffs are Charles A. Englert, Anne Englert and John Nichols. Mr. and Mrs. Englert are affiliated with Citizens and reside in Bridgeton near the development challenged in this suit. Mr. Nichols is a resident of the City of St. Charles and the president of SCENE.

Parties-- Defendant

Linclay Development Corporation (hereinafter Linclay) and its wholly owned subsidiary, Earth City Corporation, are Missouri corporations that are carrying on the land development project at issue. Robert F. Froehlke, Secretary of the Army; General Frederick B. Clarke, Chief of Engineers, Corps of Engineers; the Corps of Engineers; John A. Volpe, Secretary of Transportation; F. C. Turner, Federal Highway Administrator; and the Department of Transportation (hereinafter DOT) are also named as defendants. The complaint also reads against the Missouri Highway Commission and individual Commission members.

The Project

The project challenged in this lawsuit is termed by its developers 'Earth City,' although it is not an incorporated municipality. It has been planned as a 'balanced' residential, commercial and industrial community. Projected employment in the area is 29,000 people. Approximately 12,000 persons will reside in the development. Total daytime population is expected to exceed 40,000. The project is being constructed on a tract of land owned by, or under option to, the private defendants, comprised of approximately 1,700 acres, the major portion of which is located in an unincorporated area of St. Louis County. The land is in the Missouri River flood plain and is bounded on the west by the Missouri River and the Missouri Bottom Road (with the City of St. Charles lying just beyond, and west of, the river); on the south by Interestate Highway 70; on the north by the tracks of the Norfork & Western Railway; and on the east by an irregular property line. To the north and east lies the City of Bridgeton with the northern portion of the tract (between St. Charles Rock Road and the Norfork & Western tracks) being located within the City of Bridgeton. St. Charles Rock Road transects the tract in a generally west-east direction slightly north of center. That road, also described as Missouri Route 115, serves as a partial city limit for Bridgeton. Missouri Bottom Road branches off St. Charles Rock Road on the south side, leads down close to the river, then under the St. Charles Rock Road bridge, and then northwardly on the river side of the Earth City levee approximately parallel to the river channel through the portion of the tract within the Bridgeton city limits (between St. Charles Rock Road and the Norfork & Western tracks).

Prior to acquisition by the development group, the land was utilized for the most part for agricultural purposes. Some commercial establishments were located along St. Charles Rock Road. The farm lands were protected by an agricultural levee constructed along the western perimeter of the site.

Two aspects of the Earth City development are challenged by plaintiffs. One is an urban levee and flood protection system superseding the agricultural levee, along the western perimeter of the tract; the second is a proposed interchange with Highway I-70. The levee will run from the I-70 embankment across the St. Charles Rock Road embankment and into the embankment of the Norfork & Western Railway. The interchange will tie in to I-70 in the southwest corner of the development. The entire project, including the levee and the interchange, is being financed by appellees Linclay and Earth City Corporation by or through private sources. No federal or state funds are involved.

After acquisition of the tract, the developers petitioned the St. Louis County Council and the City of Bridgeton to change the zoning of the land in question ² to permit the uses contemplated in the development plan. Both governing bodies acted favorably initially, but Citizens has filed a referendum petition that has suspended temporarily the rezoning of that portion of the tract within the Bridgeton city limits. The St. Louis County zoning authority on the other hand has permitted the project to go forward, but under certain conditions imposed by ordinance. ³

The Causes of Action

Plaintiffs' goal in this lawsuit is the subjection of the entire Earth City project to the strictures of the National Environmental Policy Act of 1969 (hereinafter NEPA), 42 U.S.C. 4321, 4331-4335, 4341-4347 (1970). To achieve that goal they seek to implicate the federal defendants, the Corps of Engineers and the Department of Transportation, in the decision-making processes that have permitted the project to go forward. The urban levee and the I-70 interchange are, according to the plaintiffs' allegations, essential to the overall project. In simple terms, plaintiffs contend formal federal authorization was a necessary precondition to both improvements and that such federal action, if taken, would have automatically invoked the requirement of NEPA that an environmental impact statement be prepared.

Appellants contend the procedural requirements of NEPA cannot be avoided by the federal defendants' disclaimer of interest or their failure to act in circumstances where (as here, plaintiffs insist) the federal agencies had a duty to act. ⁴ Appellants further submit that the scope as well as the specifics of defendants' regulatory obligations are governed not only by the particular statutes and regulations setting out the jurisdiction, functions, duties and responsibilities of the particular agencies, but also, in a more general sense, by the NEPA itself, since that Act sets forth a congressional mandate that federal agencies review their statutory authority, policies and procedures (whether self-imposed by regulation or as defined by statute) and declares a congressional intent that such agencies, to the extent permitted by law, conform their practices and exercise their authority so as to maximize the effect of NEPA's requirements. ⁵ Thus under appellants' theory of the governing law, NEPA has a twofold relevance to the litigation: (1) NEPA obliges the federal defendants to execute their specific statutory duties in such a manner as will aggressively assert and defend environmental interests, and (2) it imposes specific obligations to prepare an environmental impact statement to accompany every recommendation of 'major Federal actions significantly affecting the quality of the human environment, * * *.' 42 U.S.C. 4332(c).

Whether there is a federal nexus to the project, or in statutory terms, whether the project is in part, or should be, the product of 'major federal action' is vigorously contested by the parties. Plaintiffs contend statutes require the Corps and DOT formally to...