Natural Resources Defense Council, Inc. v. Callaway, Civ. No. H-74-268.

Decision Date13 December 1974
Docket NumberCiv. No. H-74-268.
Citation389 F. Supp. 1263
CourtU.S. District Court — District of Connecticut
PartiesNATURAL RESOURCES DEFENSE COUNCIL, INC., et al. v. Howard H. CALLAWAY, as Secretary of the Army, et al.

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Haynes N. Johnson, Stamford, Conn., Albert K. Butzel, New York City, for plaintiffs.

Henry S. Cohn, Asst. U. S. Atty., Hartford, Conn., for defendants.

MEMORANDUM OF DECISION

BLUMENFELD, District Judge.

The plaintiffs here, groups representing environmental and general public interests, seek to halt a major governmental project because the agencies involved have allegedly made both substantive and procedural mistakes in complying with applicable environmental protection laws.

The origin of this suit lies in the Navy's current project of dredging a wider and deeper channel in the Thames River above New London to allow a new class of submarine (the SSN 688) to use the Navy's submarine facility at Groton.1 The dredging itself is not being challenged here; instead the challenge is directed at the disposition of the dredged spoil at the "New London dump site," which lies approximately two nautical miles directly off the entrance to New London Harbor and about one-and-one-half nautical miles to the west of Fishers Island in Long Island Sound.2

The total of the Navy's dredging is calculated as some 2.8 million cubic yards of spoil.3 The project is scheduled to be done in two phases. Phase I, which began August 3, involves dredging the Thames River channel from a depth of 33 feet to a depth of 36 feet between the river's mouth and the Underwater Systems Center (about halfway to the submarine base) and deepening the entrance to the Systems Center to 38 feet from a present depth of 35 feet.4 After a hiatus of approximately nine months from the completion of Phase I in June 1975, Phase II will commence.5 This portion of the project involves dredging the channel from the submarine base to about a mile above the Systems Center from a present depth of 33 feet to a depth of 36 feet.6

Concededly, the dredged material will be polluted, with especially high concentrations of volatile solids, industrial wastes, and Kjeldahl nitrogen.7 The New London dump site is apparently much freer of pollution than the bed of the Thames River, and the plaintiffs fear that the dredge spoil from the Thames will contaminate this relatively purer area.8 Additionally, the plaintiffs are concerned that dispersal of the spoil from this site will lead to pollution of estuaries and nursery grounds for marine life that exist inshore to the northwest of the dump site along the Connecticut coast.9 Putting these concerns into the language of a complaint, the plaintiffs argue that the decision to dispose of the dredge spoil at the New London dump site was "arbitrary and capricious" — a clear abuse of discretion that this court should nullify.10 This claim will be referred to below as the "substantive" objection to the Navy's project.

The plaintiffs also complain that the agencies involved inadequately complied with procedural requirements for making the decision to use the New London dump site. The parties do not dispute that the spoil disposal project was subject to the requirements of the National Environmental Protection Act, 42 U.S.C. §§ 4321-4347 (1970) (hereinafter "NEPA"). Principal among these requirements is one demanding that an environmental impact statement (hereinafter "EIS") be filed before the project is undertaken.11 A substantial body of case law has grown up around the issue of exactly what such a statement must contain,12 and the thrust of many of the plaintiffs' claims is that the Navy's EIS for this project is deficient in omitting required data.13 A broader but related claim is that the Navy's EIS for this project was not the objective inquiry required by NEPA and regulations thereunder14 precedent to a decision but was instead a self-serving justification for a previously made decision to use the New London dump site.15 Two other related claims are that (1) the Army Corps of Engineers (hereinafter "the Corps"), not the Navy, should have prepared the EIS, and (2) even if the Navy was properly in charge of preparing the statement, it violated the requirements of NEPA by contracting the preparation of the EIS to a consultant instead of doing all the work on the statement by itself.16

The parties do not dispute that the Navy was required by the Water Pollution Control Act to get a permit from the Corps in order to dump the dredge spoil.17 The Corps granted such a permit on April 29, 1974, conditioning it upon institution of a program to monitor the environmental effects of the dumping.18 The plaintiffs argue that this action by the Corps was improper (1) because the Navy's underlying EIS of December 1973 was deficient;19 (2) because the Corps itself failed to comply with applicable guidelines developed by the Environmental Protection Agency;20 and (3) because the monitoring program gives no protection against harmful dispersion of the spoil — it simply records it.21

On the basis of all these alleged violations of law,22 the plaintiffs ask this court to grant permanent injunctive relief against the continued dumping of dredge spoil from the Thames River project at the New London dump site.23 After disposing of two preliminary issues, I will turn to the merits of the remaining substantive and procedural objections that the plaintiffs have raised.

I. Jurisdiction

The jurisdiction of this court to hear the challenges based on alleged violations of NEPA is indisputedly proper under 28 U.S.C. §§ 1331, 1337 (1970). However, the defendants maintain that the court does not have jurisdiction of the objections based upon alleged violations of the Water Pollution Control Act.24 This Act contains a section giving jurisdiction over citizen suits, 33 U. S.C. § 1365 (Supp. II, 1972). One of the requirements of this section is that:

"(b) No action may be commenced—
(1) . . .
(A) prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator of EPA, (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, or order . . . .
Notice under this subsection shall be given in such manner as the EPA Administrator shall prescribe by regulation."

The regulations prescribed are set out in the margin.25 The plaintiffs gave the required notice on July 15, 1974;26 the complaint was filed on September 3, 1974, less than 60 days thereafter. Therefore, the plaintiffs' claim to jurisdiction under 33 U.S.C. § 1365 (Supp. II, 1972) must fail.27 Cf. Montgomery Environmental Coalition v. Fri, 366 F.Supp. 261, 265-266 (D.D.C.1973); Brown v. Ruckelshaus, 364 F.Supp. 258, 265 n.10 (C.D.Cal.1973).28

II. Standing

The standing of the plaintiffs to assert that the Corps and the Navy have violated NEPA is unchallenged here. The plaintiffs are all groups which assertedly contain numerous members who use Long Island Sound in one way or another. In showing potential actual injury from pollution of the Sound, they have shown enough to have standing to sue under Sierra Club v. Morton, 405 U. S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). See Montgomery Environmental Coalition v. Fri, 366 F.Supp. 261, 264 (D.D.C.1973).

III. Authorship of the EIS

One of the plaintiffs' objections is that the Corps and not the Navy should have prepared the EIS. NEPA provides that "the responsible official" shall prepare an impact statement,29 and the CEQ Guidelines (not issued in final form until August 1973)30 provide guidance on which federal agency should be the "lead" agency and write the EIS when there is overlapping jurisdiction.31 The agency selection should turn upon

"the time sequence in which the agencies become involved, the magnitude of their respective involvement, and their relative expertise in regard to the project's environmental effects."32

The plaintiffs contend, somewhat conclusorily, that application of these guidelines to the instant case should have resulted in the Corps' being chosen to write the EIS. The court does not view the guidelines as so pellucid, however. As to the time sequence (and assuming that the guidelines favor the agency who becomes involved at the earlier date), the Navy has the stronger case for being the lead agency since it initiated the dumping project. As to the magnitude of the agencies' respective involvement, it was the Corps that had the statutory authority to select a site. But this was not merely a site selection project; it was a dumping project, and the Navy was to carry out all the actual dumping. As to relative environmental expertise, no data has been presented as to which agency was more experienced prior to January 1972 (when the Navy prepared the first draft of the impact statement).33

It is true that where defects of procedure34 are urged in environmental cases, the standard a reviewing court will apply is very strict:

"if the decision was reached procedurally without individualized consideration and balancing of environmental factors—conducted fully and in good faith—it is the responsibility of the court to reverse."35

However even where the challenge is to the procedures followed, the court must be convinced that error has been made. In the present instance the court is unable to conclude, on an examination of the record, that the Navy should not have been designated the lead agency for the dumping project here involved. Without a stronger showing of error, the court is unwilling to upset the agencies' decision that the Navy should draft the EIS. Although admonished by Calvert Cliffs' not to accord too much weight to the delay that following NEPA procedures properly might entail,36 the court finds it noteworthy that if an error in authorship were found here, the government would have to retreat all the way back to the EIS-drafting...

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5 cases
  • Natural Resources Defense Council, Inc. v. Callaway, 916
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • September 9, 1975
    ...personnel. In both cases the preparers are guided exclusively by the interests of the Navy and the dictates of the NEPA process. See 389 F.Supp. at 1273-74. 3. Inadequacy of Discussion in the EIS of Cumulative Effects of Navy and Other Dumping The Final EIS filed by the Navy discussed and e......
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    • August 25, 1977
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