Lake Erie Alliance v. United States Army Corps

• Decision Date: 18 March 1980
• Docket Number: Civ. A. No. 79-110B Erie.
• Citation: 486 F. Supp. 707
• Parties: LAKE ERIE ALLIANCE FOR the PROTECTION OF the COASTAL CORRIDOR et al., Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

486 F. Supp. 707

LAKE ERIE ALLIANCE FOR the PROTECTION OF the COASTAL CORRIDOR et al., Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS et al., Defendants.

Civ. A. No. 79-110B Erie.

United States District Court, W. D. Pennsylvania.

March 18, 1980.

Michael J. Healey, Thomas J. Kennedy, Pittsburgh, Pa., Staughton Lynd, Youngstown, Ohio, James B. Callen, Youngstown, Ohio, Douglas L. Kohout, Cleveland Heights, Ohio, James A. Denney, Youngstown, Ohio, for plaintiffs.

Craig R. McKay, Asst. U. S. Atty., Pittsburgh, Pa., Peter D. Coppelman, Dept. of Justice Lands and Natural Resources Division, Washington, D. C., H. Frank Parson, Asst. Dist. Counsel, U. S. Army Engineer Dist. Buffalo, Buffalo, N. Y., for defendants.

MEMORANDUM OPINION

KNOX, District Judge.

This is an action brought by numerous individuals and organizations against the United States Army Corps of Engineers, the Secretary of the Army and other federal officials challenging the sufficiency of an Environmental Impact Statement (EIS) issued by defendants in connection with the proposed construction of a complex steel producing facility by United States Steel (USS) in Conneaut, Ohio. Jurisdiction is properly invoked under 42 U.S.C. § 4332.

Presently before the court is the federal defendants' motion to dismiss the following plaintiffs for lack of standing and for failure to state a claim pursuant to Fed.R.Civ. Proc. 12(b)(6): Lake Erie Alliance for the Protection of the Coastal Corridor (LEA); George E. Limberty; John McNicol; Locals # 1330, # 1397 and # 1462 of the United Steelworkers of America; and the Tri-State Conference on the Impact of Steel on Ohio-Pennsylvania-West Virginia.

A. Standing

To obtain judicial review of agency action under section 10 of the Administrative Procedure Act of 1946 (APA), § 702, 5 U.S.C. § 551 et seq. (1970), plaintiffs must satisfy two requirements. First, they must demonstrate a case or controversy within the meaning of article III of the United States Constitution by showing injury in fact, economic or otherwise, as a result of agency action. Second, they must be persons adversely affected or aggrieved by agency action within the meaning of the relevant statute, that is, the interests they seek to protect must be arguably within the zone of interests to be protected by the act. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970).

Whether or not a plaintiff meets the test for standing must be determined by the pleadings alone. United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973); Paton v. La Prade, 524 F.2d 862 (3d Cir. 1975). The voluminous complaint and amended complaint filed by the plaintiffs in this action include numerous allegations of agency impropriety in which all plaintiffs allege each and every cause of action. This places the burden on the court to scrutinize the actual, as well as the professed, interests of each plaintiff challenged in the defendants' motion. For organizational purposes, the standing of LEA will be considered first, the "steelworkers," consisting of Limberty, McNicol and the three local unions, will be analyzed together, and the Tri-State Conference will be considered last.

(1) Lake Erie Alliance (LEA)

Plaintiff LEA is defined in the complaint as:

... a non-profit, public benefit membership corporation organized under the laws of the State of Ohio. Its membership includes persons and organizations situated in or near Lake Erie and the area affected by this project, who depend on the Lake and its coastal corridor for fishing, swimming, navigation, and drinking, as well as for livelihood, recreation, and general well being, and who need and appreciate its aesthetic and cultural value. LEA's members are residents and citizens of the States of Ohio, Pennsylvania and New York in the United States, and of the Province of Ontario in Canada. Many of LEA members live downwind from the proposed facility and are dependent on the land affected by the project for their livelihood.

Plaintiffs allege that the failure of the defendants to adequately and properly consider all relevant factors before issuing the EIS will cause irreparable damage to Lake Erie, its coastal corridor, neighboring streams and nearby agricultural areas from air and water pollution. Plaintiffs also allege that a large scale reconstruction project in the Conneaut Harbor area will disrupt, and possibly destroy a unique ecosystem currently flourishing there, and have a generally severe impact on the quality of air, water, lands and wildlife in the region.

The seminal act in this case is the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq. Section 101(a) of NEPA describes the national environmental policy as follows:

(a) The Congress, recognizing the profound impact of man's activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.

(b) In order to carry out the policy set forth in this Act, . . . it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may —

(1) fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;

(2) assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings;

(3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences,

(4) preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity and variety of individual choice.

(5) achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities, and

(6) enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.

(c) The Congress recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.

Personally felt aesthetic or conservational harm is sufficient to confer standing, Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 1365, 31 L.Ed.2d 636 (1972), United States v. SCRAP, 412 U.S. 669, 687, 93 S.Ct. 2405, 2415, 37 L.Ed.2d 254 (1973), and plaintiffs have so alleged with specificity. Further, a non-profit, public benefit corporation whose purposes include the protection of the environment or the lives, health or property of persons or animals, qualify as persons "adversely affected" under the APA. Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608 (2d Cir. 1965), cert. den. 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540 (1966); Powelton Civic Home Owners Assn. v. Dept. of HUD, 284 F.Supp. 809 (E.D.Pa.1969); Cape May County Chapter, Inc. of Izaak Walton League v. Macchia, 329 F.Supp. 504 (D.N.J.1971). LEA, with all of its members residing in the area involved, appears to be the ideal plaintiff contemplated by NEPA to ensure agency compliance with its mandates and therefore we find that it does have standing.

(2) The Steelworkers

Plaintiffs Limberty and McNicol, individual steelworkers who reside in the Youngstown area, were terminated along with 400 others when Lykes Corporation partially shut down its Campbell Works in 1977. Local # 1330 represents USS steelworkers in Youngstown, Ohio, Local # 1397 represents USS steelworkers in Homestead, Pennsylvania, and Local # 1462 represents steelworkers at the Jones and Laughlin Brier Hill Works in Youngstown. The unions allege that their members are threatened with unemployment as a direct result of shutdowns which will result if the new facility at Conneaut is built. All steelworker plaintiffs have expressed an interest in finding an alternate site for the proposed plant, and have alleged that defendants failed to comply with NEPA in their rejection of proposed alternatives.

Defendants contend that there is no evidence that any steelworker has been or will be unemployed as a result of the proposed Conneaut project. However, plaintiffs correctly point out that the determination of standing must be tested by the pleadings, which are to be taken as true, and not by the merits of the allegations unless they can be shown to be "mere shams." Paton v. La Prade, supra, at 867; Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Further, it is sufficient under the first prong of the standing test for plaintiffs to allege "threatened" economic injury as a result of agency action. Linda R. S. v. Richard D., 410 U.S. 614, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973).

In Shiffler v. Schlesinger, 548 F.2d 96 (3d Cir. 1979), the Third Circuit Court of Appeals held that threatened job termination qualifies as economic injury under the APA. In ...