Pokorny v. Costle
| Decision Date | 02 February 1979 |
| Docket Number | Civil No. 78-0-474. |
| Parties | Jeffrey POKORNY, Plaintiff, v. Douglas M. COSTLE, Administrator of the Environmental Protection Agency, Defendant, and The City of Schuyler, Nebraska, a Municipal Corporation, Defendant-Intervenor. |
| Court | U.S. District Court — District of Nebraska |
Martin A. Cannon and Mary Cannon Veed, Omaha, Neb., for plaintiff.
David A. Kubichek, Asst. U. S. Atty., Omaha, Neb., D. Nebraska, Jane B. Werholtz, Environmental Protection Agency, Region VII, Kansas City, Mo., for Costle.
Larry E. Welch, Omaha, Neb., Donn K. Bieber and George E. McNally, Schuyler, Neb., for City of Schuyler.
The present mayor of Schuyler, Nebraska, seeks to restrain certain named defendants from proceeding with the construction of a new wastewater treatment system. Alleging that the Environmental Protection Agency's decision to refrain from preparing an environmental impact statement was unreasonable, the plaintiff desires to obtain an injunction pending a thorough evaluation of the project's impact on the surrounding area. Because of various time restraints, the Court advanced the trial upon the merits and consolidated the prayer for permanent relief with the hearing on the plaintiff's application for a preliminary injunction. After reviewing the record and considering the oral arguments of counsel, the Court concludes that equitable relief is inappropriate. In accordance with Rule 52(a) of the Federal Rules of Civil Procedure, the following findings of fact and conclusions of law support this conclusion.
The city of Schuyler's existing wastewater treatment system consists of a dual cell lagoon which ultimately discharges treated effluent into Lost Creek, a minor left bank tributary of the Platte River. As required by the Federal Water Pollution Control Amendments of 1972, the city obtained a discharge permit from the Nebraska Department of Environmental Control. This permit allowed the temporary release of wastewater into Lost Creek pending the construction of an updated treatment facility in accordance with a compliance schedule.
The proposed wastewater facility that is the subject of this litigation is the product of the city of Schuyler's efforts to meet an amended compliance schedule. In order to meet the deadline, the city initiated efforts to obtain federal grant construction money from the Environmental Protection Agency. In conjunction with these efforts, the city retained the engineering firm of Kirkham, Michael and Associates to prepare a facility plan as required by EPA regulations. 40 C.F.R. § 35.920 (1977). By April of 1976, Kirkham, Michael had completed a facility plan which included, inter alia, a description of current economic, demographic, land use and environmental conditions in the Schuyler area, a description of the existing wastewater treatment facility, a forecast of future land use and population trends in the area, assessments of the cost effectiveness and the environmental impacts of several possible alternative means of achieving compliance with discharge limits, and an environmental analysis of the particular treatment alternative selected. On the basis of a consideration of all of these factors, the facility plan concluded that a land application system best served the city's needs. The recommended system involves the construction of two new lagoons for the treatment and storage of wastewater. During the growing season, treated wastewater would be applied to an alfalfa field by a center pivot irrigation system. This arrangement would serve two environmentally laudatory purposes: the nutrients within the wastewater would be recycled, and effluent would no longer be discharged into Lost Creek.
Following the preparation of the facility plan and the selection of the land application alternative, the Environmental Protection Agency was notified. Upon receipt of the plan, the EPA conducted an environmental review in order to determine whether an impact statement was required prior to the disbursement of grant money for the project. That review found no significant environmental impacts associated with the proposed land application system. Accordingly, the Environmental Protection Agency issued a negative declaration. Accompanying that negative declaration was an environmental impact appraisal which briefly described the proposed project, feasible alternatives, the environmental impacts of the proposed action, and the reasons for concluding that there would be no significant environmental impacts. Subsequently, as a result of the selection of an alternative site on the south side of Lost Creek, the EPA issued an amendment to the original negative declaration. In this declaration, dated December 22, 1976, the Environmental Protection Agency concluded that the construction of the proposed facility on the new site offered no greater environmental impacts than those associated with the original location on the north side of Lost Creek. Accordingly, the EPA reaffirmed its original decision to refrain from preparing an environmental impact statement.
Prior to addressing the plaintiff's allegations of defects in the decision of the EPA, the Court must confront a number of threshold questions. No meaningful evaluation of the evidence can take place in the absence of clearly established standards of review and firm legal guidelines.
Under the National Environmental Policy Act of 1969 and the regulations promulgated thereunder, the decision-making agency is entrusted with the task of making the threshold determination of the need for an environmental impact statement. 40 C.F.R. § 6.200 et seq. (1977); Minnesota Public Interest Research Group v. Butz, 498 F.2d 1314, 1319 (8th Cir. 1974); Hanly v. Mitchell, 460 F.2d 640, 644 (2d Cir. 1972), cert. denied 409 U.S. 990, 93 S.Ct. 313, 34 L.Ed.2d 256 (1972). The standard of review of a threshold decision to issue a negative declaration rather than prepare an impact statement varies from jurisdiction to jurisdiction. See Peltz & Weinman, NEPA Threshold Determinations: A Framework of Analysis, 31 Miami L.Rev. 71, 81-87 (1976); Note, Threshold Determinations under Section 102(2)(C) of NEPA: The Case for "Reasonableness" as a Standard for Judicial Review, 16 Wm. & Mary L.Rev. 107, 117-26 (1974). Within the Eighth Circuit, the standard for judicial review is one of "reasonableness." Minnesota Public Interest Research Group v. Butz, 498 F.2d at 1320; Monarch Chemical Works, Inc. v. Exon, 452 F.Supp. 493, 500 (D.Neb.1978); Sierra Club v. Cavanaugh, 447 F.Supp. 427, 431 (D.S.D.1978); Patterson v. Exon, 415 F.Supp. 1276, 1281 (D.Neb.1976). This standard of review is more rigorous than the narrower tests adopted by other federal courts. Illustrative are several appellate court decisions where trial court reviews of negative declarations were overturned because of the application of an "arbitrary and capricious" standard rather than one of reasonableness. See, e. g., Wyoming Outdoor Coordinating Council v. Butz, 484 F.2d 1244, 1248-49 (10th Cir. 1973); Save Our Ten Acres v. Kreger, 472 F.2d 463, 465 (5th Cir. 1973).
Closely coupled with the burden of proof question is the propriety of considering evidence outside of a deficient administrative record. Judicial adoption of a searching standard of review does not mean that a federal court's equitable power should always be invoked when an agency fails to adequately address all of the environmental impacts of a major federal action in a negative declaration or an environmental impact appraisal. Upon a prima facie demonstration of an incomplete development of a written record by a federal agency, extrinsic evidence may be considered in a judicial evaluation of the reasonableness of an administrative decision to issue a negative declaration. Hiram Clarke Civic Club, Inc. v. Lynn, 476 F.2d at 425; Save Our Ten Acres v. Kreger, 472 F.2d at 467; Mid-Shiawassee County Concerned Citizens v. Train, 408 F.Supp. 650, 654 (E.D.Mich.1976), aff'd 559 F.2d 1220 (6th Cir. 1977); Jones v. HUD, 390 F.Supp. 579, 591 (E.D.La.1974).
Before a federal court can decide upon the propriety of considering extrinsic evidence, a definition of the scope of an administrative record must be framed. The concept appears to be a narrow one. The Environmental Protection Agency requires that only a negative declaration and an environmental impact appraisal be prepared and circulated if a project is found to have no significant impact. The Court concludes that, at the very least, the EPA is required to establish a reviewable administrative record in accordance with the following regulations set forth at 40 C.F.R. § 6.212 (1977):
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