Sierra Club v. US Army Corps of Engineers, 79 Civ. 3363.

• Decision Date: 08 November 1979
• Docket Number: No. 79 Civ. 3363.,79 Civ. 3363.
• Citation: 481 F. Supp. 397
• Parties: SIERRA CLUB, Committee for Better Transit Inc., NYC Clean Air Campaign, Inc., West 12th Street Block Association, Otis Burger, Mary Rowe, Citizens Committee of Hudson County, and Howard Singer, Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS, Clifford L. Alexander, Jr., as Secretary of the Army of the United States, John W. Morris, as Chief of Engineers, Clark H. Benn, as New York District Engineer of the United States Army Corps of Engineers, and William C. Hennessy, as Commissioner of the New York State Department of Transportation, Defendants.
• Court: U.S. District Court — Southern District of New York

481 F. Supp. 397

SIERRA CLUB, Committee for Better Transit Inc., NYC Clean Air Campaign, Inc., West 12th Street Block Association, Otis Burger, Mary Rowe, Citizens Committee of Hudson County, and Howard Singer, Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS, Clifford L. Alexander, Jr., as Secretary of the Army of the United States, John W. Morris, as Chief of Engineers, Clark H. Benn, as New York District Engineer of the United States Army Corps of Engineers, and William C. Hennessy, as Commissioner of the New York State Department of Transportation, Defendants.

No. 79 Civ. 3363.

United States District Court, S. D. New York.

November 8, 1979.

Butzel & Kass by Albert K. Butzel, New York City, for plaintiffs.

Robert B. Fiske, Jr., U. S. Atty. for the Southern District of New York by Jane E. Bloom, Asst. U. S. Atty., New York City, for defendants.

MEMORANDUM AND ORDER

OWEN, District Judge.

This action, commenced by the Sierra Club and others, arises out of the controversial Westway Project, a proposal by the New York State Department of Transportation for the construction of a superhighway on the west side of New York City. In April 1977, the State applied to the United States Army Corps of Engineers for landfill permits necessary for construction of the highway. As required by § 102(2)(C) of the National Environmental Policy Act of 1969 42 U.S.C. § 4332(2)(C) ("NEPA"), the State submitted an environmental impact statement ("EIS") to the Corps.¹

Beginning in June 1978, the plaintiffs appealed to the Corps to update or supplement the EIS by incorporating new information.² The Corps' District Engineer considered this request, but ultimately decided not to require a new or additional EIS.³ Without waiting for a final decision from the Corps on the permit requests (a decision which has yet to be made), plaintiffs brought this action to reverse the District Engineer's determination as to the adequacy of the EIS. Defendants have moved to dismiss the complaint contending, inter alia, that the matter is not ripe for judicial intervention.

Administrative actions are not justiciable unless they are "final" within the meaning of § 10(c) of the Administrative Procedure Act ("APA"), 5 U.S.C. § 704. Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); Toilet Goods Ass'n, Inc. v. Gardner, 387 U.S. 158, 162, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967). The APA reflects a Congressional determination that judicial intervention must be deferred until the administrative decision-making is completed. This policy avoids both disruption of the administrative process by piecemeal appeals, and advisory opinions on issues not fully framed or potentially moot. Abbott Laboratories v. Gardner, supra 387 U.S. at 148-49, 87 S.Ct. 1507; see also, Pepsico, Inc. v. F. T. C., 472 F.2d 179, 185 (2d Cir. 1972).⁴

Plaintiffs argue that the District Engineer's decision not to incorporate or add updated information to the EIS is "final" within the meaning of the APA. They make this contention despite the fact that the ultimate issue of the permits has not been resolved by the Corps. Section 102(2)(C) of NEPA, where applicable, does mandate that environmental factors be considered throughout the administrative process. "But the time at which a court enters the process is when the report or recommendation on the proposal is made, and someone protests either the absence or the adequacy of the final impact statement." Kleppe v. Sierra Club, 427 U.S. 390, 406 n. 15, 96 S.Ct. 2718, 2728-29, 49 L.Ed.2d 576 (1976).

An agency's failure or refusal to prepare or file an EIS where required by NEPA may not be judicially reviewed until final orders on the proposed action have been issued. Mobil Oil Corp. v. F. T. C., 562 F.2d 170 (2d Cir. 1977). Even where an EIS has been prepared, questions as to its scope and validity are not ripe for judicial review until final agency action has been taken. Sierra Club v. Morton, 421 F.Supp. 638, 646 (D.D.C.1974); Natural Resources Defense Council v. Andrus, 448 F.Supp. 802, 806 (D.D.C.1978).⁵ The adequacy of an EIS can only be evaluated in light of specific proposals. For example, an EIS must discuss all relevant alternatives to proposed agency action. Whether the content and scope of those discussions is adequate necessarily depends on the precise nature of the agency's final recommendation. Natural Resources Defense Council, Inc. v. Callaway, 524 F.2d 79, 93 (2d Cir. 1975).

In this case, since the Corps has not decided whether to issue the landfill permits, the question of the adequacy of the EIS prepared to support that decision is not yet justiciable. Thus, defendants' motion is granted and the action is dismissed.

So ordered.

1 NEPA mandates that all federal agencies include an EIS in every "recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). It is undisputed that one such "major Federal action" is the granting of landfill permits by the Corps for the proposed Westway highway under Section 404 of the Federal Water Pollution Control Act 33 U.S.C. § 1344 and Section 10 of the Rivers and Harbors Act of 1899 33 U.S.C. § 403.

2 Among the inadequacies or...