Village of Elk Grove Village v. Evans

• Decision Date: 25 June 1993
• Docket Number: No. 92-1691,92-1691
• Citation: 997 F.2d 328
• Parties: 23 Envtl. L. Rep. 20,989 VILLAGE OF ELK GROVE VILLAGE, Plaintiff-Appellant, v. James E. EVANS, et al., Defendants-Appellees. HP/Meacham Road Land Limited Partnership and CBS, Incorporated, Intervenors.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 328

997 F.2d 328

23 Envtl. L. Rep. 20,989

VILLAGE OF ELK GROVE VILLAGE, Plaintiff-Appellant, v. James E. EVANS, et al., Defendants-Appellees HP/Meacham Road Land Limited Partnership and CBS Incorporated, Intervenors.

No. 92-1691.

United States Court of Appeals Seventh Circuit.

Argued Dec. 9, 1992.

Decided June 25, 1993.

Joseph V. Karaganis (argued), A. Bruce White, John W. Kalich, Karaganis & White, Chicago, IL, George B. Knickerbocker, Samelson, Knickerbocker & Payne, Des Plaines, IL, for plaintiff-appellant Village of Elk Grove Village.

David C. Shilton (argued), Dept. of Justice, Land & Natural Resources Div., Washington, DC, for defendants-appellees Jess J. Franco, James E. Evans and U.S. Army Corps of Engineers.

Jonathan Haile, Office of the U.S. Atty., Criminal Div., Chicago, IL, David C. Shilton, Dept. of Justice, Land & Natural Resources Div., Washington, DC, for defendants-appellees Michael P.W. Stone and U.S. Army.

Roger Price, Jeffrey H. Bergman (argued), Ann H. Theodore, D'Ancona & Pflaum, Chicago, IL, for intervenors CBS, Inc. and HP/Meacham Road Land Ltd. Partnership.

Before POSNER and EASTERBROOK, Circuit Judges, and WOOD, Jr., Senior Circuit Judge.

POSNER, Circuit Judge.

The Village of Elk Grove, Illinois, brought this suit to enjoin the Corps of Engineers (the relevant officials of whom are the defendants) from granting a permit for the construction of a radio tower in the floodplain of a creek near the village. (Actually there were to be two radio towers side by side, but we can disregard that detail.) The tower was to be built by HP/Meacham Road Land Limited Partnership on land owned by HP, and transferred to Columbia Broadcasting System upon completion. The suit claims that the granting of the permit violated Executive Order 11988, issued by President Carter and still in force, which forbids any federal agency to authorize construction in a floodplain if there is a practicable alternative. 42 Fed.Reg. 26951 (May 24, 1977), as amended, 44 Fed.Reg. 43239 (July 20, 1979). The Corps of Engineers had got into the act because, under the Clean Water Act, 33 U.S.C. §§ 1251 et seq., a permit from the Corps is required for construction that would result in certain types of discharge into wetlands, § 1344; and the construction of the radio tower would do that. A wetland is not a floodplain, but Executive Order 11988, at least as interpreted by the Village of Elk Grove, requires the Corps of Engineers, as it does every other federal agency, to explore alternatives to floodplain development whenever the Corps is asked to grant a permit, under whatever authority, that would permit such development. Nevertheless the Corps granted the permit to the builder-owner without considering alternative sites for the tower that were not on the floodplain. It did so because it concluded that the nature of the project qualified it for a general permit--in effect for an exemption from the requirement of seeking an individual permit in which applicant would have to show that construction off the floodplain would be infeasible. 33 U.S.C. § 1344(e); 33 C.F.R. § 330.5.

The Corps of Engineers believes that this exemption is consistent with the executive order, having been crafted with due concern for possible floodplain effects. The Village, disagreeing, brought this suit. It invoked the jurisdiction of the district court under 28 U.S.C. § 1331, the general federal-question statute; claims a right to judicial relief under the Administrative Procedure Act, which creates a judicial remedy against agency action "found to be ... not in accordance with law," 5 U.S.C. § 706(2)(A); and contends that the executive order which it alleges the Corps violated is "law" within the meaning of section 706(2)(A). The district judge, rejecting the last point, granted summary judgment for the defendants and dismissed the suit. The Village wants an injunction that, by forcing the Corps of Engineers to rescind the exemption, will prevent construction until the Corps conducts an individualized inquiry into the compatibility of the construction with the executive order.

The question in what circumstances an executive order creates a judicially enforceable right is an important one, but there is serious doubt whether we can reach it. There may not be a case or controversy within the meaning of Article III of the Constitution. The problem is not, as one might have supposed, that the complaint fails to allege any injury to the Village of Elk Grove from the construction of the radio tower. That was a startling omission, but in response to the defendants' motion to dismiss the suit for want of standing the Village submitted an affidavit which explains that Elk Grove is flood-prone, that when there is a flood the municipality incurs expenses for sandbags, overtime salaries for rescue workers, and such, and that the construction of the radio tower, by plopping down a huge slab of concrete near the creek and thus limiting the creek's drainage area, will increase the risk of flooding. The injury is of course probabilistic, but even a small probability of injury is sufficient to create a case or controversy--to take a suit out of the category of the hypothetical--provided of course that the relief sought would, if granted, reduce the probability. Pennell v. San Jose, 485 U.S. 1, 8, 108 S.Ct. 849, 855, 99 L.Ed.2d 1 (1988); Bryant v. Yellen, 447 U.S. 352, 367-68, 100 S.Ct. 2232, 2240-41, 65 L.Ed.2d 184 (1980); Tucker v. U.S. Dept. of Commerce, 958 F.2d 1411, 1415 (7th Cir.1992); North Shore Gas Co. v. EPA, 930 F.2d 1239, 1242 (7th Cir.1991).

This is not a case in which a citizen or taxpayer or member of some other large group is trying to maintain a suit in respect of a diffuse and impalpable deprivation, such as the deprivation of an alleged right to view wildlife. Lujan v. Defenders of Wildlife, --- U.S. ----, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The Village is in the path of a potential flood. If, however, it were clear that the danger would be averted by the enforcement of another enactment besides Executive Order 11988, or, more to the point as we are about to see, by the enforcement of this enactment by another agency, or conversely, as in Renne v. Geary, --- U.S. ----, ---- - ----, 111 S.Ct. 2331, 2337-38, 115 L.Ed.2d 288 (1991), if it appeared that the Village's claimed right to prevent the danger was nixed by another enactment, then the Village would lack standing.

In order to be allowed to operate the radio tower, CBS needed a permit from the FCC. When CBS applied for the permit the FCC told it that in order to ensure the FCC's own compliance with Executive Order 11988, CBS would have to submit evidence that there is no practicable alternative to building the tower in the floodplain. When this case was argued to us, CBS was in the process of complying with this requirement and the FCC had not yet acted on its application for a permit. The issue then was: when the FCC did act, would this not moot our case and therefore deprive the Village of standing to litigate it? If the Commission denied the permit and the denial (if challenged in court) were upheld, the present case would be moot; no radio tower, at least of the proposed configuration, would be built in the floodplain of Meacham Creek. If the permit were granted, this would mean that the FCC was satisfied that there was no alternative to building the tower in the floodplain, and again the Village's suit would be moot, because the executive order would have been complied with, albeit by the FCC rather than by the Corps of Engineers.

On this view, the fact that CBS applied to the FCC for a permit is irrelevant. All that matters is that it was required to institute a proceeding in which the FCC would be required to make just the individualized determination of compliance with Executive Order 11988 that the Village of Elk Grove is seeking from the Corps of Engineers, thus mooting the present controversy.

We are not so sure. For suppose the FCC were to find that there were no practicable alternatives to building the radio tower in the floodplain, but the Village then asked the Corps of Engineers to make an independent assessment before granting a permit. Would the Corps (if forbidden--the relief sought by the Village in the present suit--to rest on the general...