Environmental Defense Fund, Inc. v. Froehlke

• Decision Date: 10 October 1972
• Docket Number: No. 20164-1.,20164-1.
• Parties: ENVIRONMENTAL DEFENSE FUND, INC., et al., Plaintiffs, v. Robert FROEHLKE, Secretary of the Army, et al., Defendants, and City of Osceola, Missouri, et al., Defendants-Intervenor.
• Court: U.S. District Court — Western District of Missouri

348 F. Supp. 338

ENVIRONMENTAL DEFENSE FUND, INC., et al., Plaintiffs, v. Robert FROEHLKE, Secretary of the Army, et al., Defendants, and City of Osceola, Missouri, et al., Defendants-Intervenor.

No. 20164-1.

United States District Court, W. D. Missouri, W. D.

September 13, 1972.

Memorandum Opinion October 10, 1972.

Edward Lee Rogers, East Setauket, N. Y., Arthur A. Benson, II, Kansas City, Mo., for plaintiffs.

Irwin L. Schroeder, Dept. of Justice, Washington, D. C., David M. Proctor, Jr., Asst. U. S. Atty., Kansas City, Mo., for Federal defendants.

Lyman Field, Reggie C. Giffin, Kansas City, Mo., for City of Osceola, Mo., et al.

F. Phillip Kirwan, Patrick E. Hartigan, Kansas City, Mo., for Tobin Const. Co.

John C. Danforth, Atty. Gen. State of Missouri, Walter W. Nowotny, Jr., Asst. Atty. Gen. State of Missouri, Jefferson City, Mo., for State of Missouri.

William H. Bates, Joseph E. Stevens, Kansas City, Mo., for Guy F. Atkinson Co.

John Manning, Kansas City, Mo., for Operating Engineers Local No. 101.

JOHN W. OLIVER, District Judge.

MEMORANDUM AND ORDER

I.

Plaintiffs' complaint for injunction and declaratory judgment, filed March 6, 1972, alleged that their action arose under the National Environmental Policy Act of 1969 (NEPA), 42 United States Code ?? 4321 et seq.; the Fish and Wildlife Coordination Act of 1934, as amended, 16 United States Code ?? 661 et seq.; the Environmental Quality Improvement Act of 1970, 42 United States Code ? 4371; the Water Bank Act of December 19, 1970, 16 United States Code ?? 1301 et seq.; the Acts of June 20, 1938, 33 United States Code ? 540; the Act of June 22, 1936, 33 United States Code, ? 701a; the Act of June 27, 1960, 16 United States Code ?? 469-469c; the Fifth and Ninth Amendments to the Constitution of the United States, and the Public Trust Doctrine, which is allegedly a part of the federal common law.

Plaintiffs' complaint of 112 paragraphs alleged eight separate causes of action. Its prayer for relief prayed that this Court "as soon as practicable hold a hearing, at which all parties may present oral and documentary evidence, with regard to the issuance of a preliminary injunction, enjoining and restraining defendants, pending final disposition of this suit, from initiating, continuing with, or completing the construction of the Harry S. Truman Reservoir project." Plaintiffs prayed that upon final hearing "this Court issue its permanent injunction, enjoining and restraining defendants from continuing with or completing the construction of the Harry S. Truman Reservoir project."¹

At the close of the case and after completion of the procedures described in part III of this opinion, plaintiffs presented a form of final judgment in which they suggested that the defendants be "permanently enjoined from continuing the construction of the project known as the Harry S. Truman Reservoir and Dam Project in the following respects, unless and until they prepare and circulate to all relevant agencies, the Council on Environmental Quality, and make available to the public, a draft environmental statement and thereafter file with the Council on Environmental Quality a `detailed statement' within the meaning of Section 102(2) (C) of the National Environmental Policy Act of 1969 . . . ."

The defendants-intervenors, on the other hand, suggest that our final judgment need only order that the parties comply with the provisions of the Stipulations entered into during the course of this litigation (which will be later described in detail) and that, except for that affirmative relief, plaintiffs' prayer for temporary and permanent injunction, and all other relief, should be denied.

We have determined that plaintiffs are not entitled to the blanket injunctive relief they seek. We have concluded that plaintiffs are entitled to have the Stipulations incorporated by reference into this Court's final judgment to the end that time schedule and other procedures therein provided be subject to this Court's continuing jurisdiction. Plaintiffs are, of course, entitled to judicial supervision and enforcement of those portions of the Stipulations under which defendants have, among other things, voluntarily agreed neither to schedule nor award particular future contracts prior to completion of the Environmental Impact Statement required by ? 102(2)(C) of NEPA.

II.

It must be recognized at the outset that this case is not "ordinary, run-of-the-mill litigation," to borrow language from Mr. Justice Blackmun's dissent in Sierra Club v. Morton, 405 U.S. 727, 755, 92 S.Ct. 1361, 1376, 31 L.Ed.2d 636 (1972). It involves, as did Sierra Club, "Significant aspects of a wide, growing, and disturbing problem, that is, the Nation's and the world's deteriorating environment with its resulting ecological disturbances" Ibid at 755, 92 S.Ct. at 1376. Sierra Club was decided shortly after this case was filed. The decision in that case went off on the question of plaintiffs' standing. Accordingly, this, and other lower federal courts did not receive the benefit of Supreme Court guidance in regard to how NEPA cases should be processed.

Mr. Justice Blackmun's dissent recognized, however, that "our existing methods and the traditional procedural concepts do not quite fit" a case of this sort Ibid at 755, 92 S.Ct. at 1376. Counsel for all parties accepted the implicit challenge in Mr. Justice Blackmun's observation and sought to devise new procedures for processing environmental litigation which would avoid the expense and delay which has been encountered in other environmental cases. Although Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), involved ? 4(f) of the Department of Transportation Act of 1966 and ? 138 of the Federal-Aid Highway Act of 1968, certain principles stated in that case were deemed to be applicable to cases arising under NEPA.² That case made clear that the threshold question of whether the plaintiffs there involved were entitled to judicial review was easily answered. Section 701 of the Administrative Procedure Act, 5 United States Code ? 701, was held to so provide in light of the fact that Congress gave no indication that judicial review was prohibited by either the Department of Transportation Act or the Federal-Aid Highway Act. We believe the same thing must be said of NEPA. Accordingly we conclude that plaintiffs are entitled to the judicial review they seek.

Overton Park noted, however, that the determination of "the existence of judicial review is only to start; the standard of review must also be determined" Ibid at 413, 91 S.Ct. at 822. That case concluded, in language applicable to this case, that to find the standard for judicial review "we must look to ? 706 of the Administrative Procedure Act, 5 U.S.C. ? 706 (1964 ed., Supp. V.), which provides that a `reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found' not to meet six separate standards" Ibid. at 413, 91 S.Ct. at 822. Section 706 generally provides that "To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action."

Specifically, Section 706 provides that "the reviewing court shall (1) compel agency action unlawfully withheld or unreasonably delayed." It also specifically provides that the reviewing court shall "hold unlawful and set aside agency action . . . found to be?€”(A) . . . not in accordance with law. . . . (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; and (D) without observance of procedures required by law."

Overton Park concluded in regard to agency action required by the Department of Transportation Act of 1966 and the Federal-Aid Highway Act of 1968, which is quite similar to action required by NEPA, that "the generally applicable standards of ? 706 require the reviewing court to engage in a substantial inquiry" and that "the court is first required to decide whether the Secretary acted within the scope of his authority" Ibid at 415, 91 S.Ct. at 823. That case pointed out, however, that "Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one" and that the reviewing court "is not empowered to substitute its judgment for that of the agency" Ibid, 416, 91 S.Ct. at 824.

We believe that Calvert Cliffs Coord. Com. v. United States, A. E. Comm. (1971), 146 U.S.App.D.C. 33, 449 F.2d 1109, 1122, stated the obvious when it concluded that "The sweep of NEPA is extraordinarily broad, compelling consideration of any and all types of environmental impact of federal action." Section 101 of NEPA requires the federal government to "use all practicable means and measures" to protect environmental values. Section 102 explicitly states that "congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Act. . . ." And Section 102(2) (C) explicitly requires that officials of all responsible agencies of the Federal Government shall prepare a "detailed statement" (which has become known as the "environmental impact statement" or "EIS") covering the impact of particular agency action on the environment, the environmental damage which may be avoided, and alternative measures which should be given appropriate consideration by both the immediate and ultimate decision-makers before a particular project is recommended, authorized and financed. And, as stated in Calvert Cliffs, it is clear that the Congress did not intend for the Act to be a "paper tiger" Ibid at 1114.³

In this case no one ever attempted to contend with any vigor that NEPA is not applicable to the Truman...