Moore and Kaufman, Circuit Judges, and Ryan,*fn* District Judge.
The present appeal is a consolidation, ordered by this Court on October 27, 1969, of several separate appeals taken from a final order and judgment entered by the district court on July 25, 1969. Trial and judgment below in turn followed a consolidation of four separate actions brought by the various plaintiffs against the various defendants here on appeal. The opinion of the district court, setting out the facts, the various claims and Judge Murphy's conclusions of law, is reported at 302 F. Supp. 1083 (S.D.N.Y.1969).
These actions arose out of a proposal by the New York State Department of Transportation for construction of the Hudson River Expressway. The plaintiffs object to the proposed construction of a six-lane arterial highway, designed for both commercial and passenger traffic, along a ten-mile stretch of the Hudson River's eastern bank between Tarrytown and Crotonville. Before construction of the Expressway can begin, the New York Department of Transportation must secure the approval of certain federal agencies, because the planned construction requires dredging and filling in a portion of the Hudson River along the shoreline, and the Hudson is a navigable waterway under federal jurisdiction. The New York Department of Transportation proposes placing some 9,500,000 cubic yards of fill, bound by a rock wall, along a portion of the river's bank. The landfill would extend, at its widest point, approximately 1,300 feet (nearly a quarter of a mile) into the Hudson.
Upon application of the State of New York, the United States Army Corps of Engineers (the Corps) issued a permit authorizing the dredge and fill operation pursuant to its authority under the Rivers and Harbors Act of 1899, 33 U.S.C. § 401 et seq. Arguing that the proposed construction involved both a "dike" and a "causeway" within the meaning of § 401, the plaintiffs sought (1) a declaration that the permit as issued was beyond the scope of the Army's authority, and (2) injunctive relief to prohibit the issuance of any permit or the commencement of any construction in the absence of congressional consent and approval of the Secretary of Transportation.*fn1 The district court agreed, finding that a 4 1/2 mile rock wall jutting into the river constituted a "dike" and that the Expressway project would require construction of a "causeway" before its completion. The district court held that the Corps had breached a nondiscretionary duty to secure the consent of Congress and the approval of the Secretary of Transportation before issuing the permit. The permit was declared void, and the court granted the injunctive relief sought against the federal defendants and against J. Burch McMorran, the New York Commissioner of Transportation. All defendants appeal from this order.
The plaintiffs also appeal from a portion of the district court's order which dismissed their claims against McMorran as a primary defendant. These claims challenged the constitutionality of the Expressway Law,*fn2 which authorized McMorran as Commissioner of Transportation to fix the exact route of the roadway and oversee its construction, and of section 30 of New York Highway Law, which prescribes the condemnation procedures in connection with highway construction. They also claimed that a lump sum appropriation by the New York legislature for general highway construction was an impermissible delegation of the spending authority. Their final claim was an equitable action against McMorran charging violation of the Rivers and Harbors Act in seeking to proceed with construction of the Hudson River landfill without congressional consent and approval of the Secretary of Transportation. The district court dismissed these claims, but granted injunctive relief against McMorran as intervenor-defendant in the actions against the federal defendants.
Important threshold questions on this appeal involve the jurisdiction of the district court over the subject matter of these actions, and the standing of these plaintiffs to seek review of agency action in federal court. We turn first to jurisdiction.
The district court rested its jurisdiction on the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (Supp. IV). Section 702 provides as follows: "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." Section 704 states that "agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review." Section 706(2) (C) permits the reviewing court to set aside agency action found to exceed the agency's statutory authority.
The statute pursuant to which the Army Chief of Engineers issued the disputed permit contains no provision for judicial review, nor does it include specific procedures for appeal of the Army's decision. Review of the action is therefore determined by the provisions of the Administrative Procedure Act, applicable to all administrative actions or proceedings "except to the extent that -- (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law." 5 U.S.C. § 701 (Supp. IV). Nothing in the Rivers and Harbors Act suggests that judicial review is precluded, and it is clear from a reading of § 401 that approval of projects involving the construction of "dikes" and "causeways," rather than being "committed to agency discretion by law," was, on the contrary, expressly reserved to Congress. The federal defendants contend that the landfill permit was governed by § 403, committing certain types of shoreline construction to the Army's discretion. But whether or not the Army could exercise its authority under § 403 without reference to § 401 was a matter of statutory construction obviously subjected to full review in the district court by the Administrative Procedure Act, 5 U.S.C. § 706. The district court properly relied on the presumption of reviewability embodied in the Administrative Procedure Act where there was no evidence of a congressional intent to prohibit review in the Rivers and Harbors Act. As the Supreme Court has twice held "only upon a showing of 'clear and convincing evidence' of a contrary legislative intent should the courts restrict access to judicial review." Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S. Ct. 1507, 1511, 18 L. Ed. 2d 681 (1967); accord, Rusk v. Cort, 369 U.S. 367, 379-380, 82 S. Ct. 787, 7 L. Ed. 2d 809 (1962); Kletschka v. Driver, 411 F.2d 436 (2d Cir. 1969); Cappadora v. Celebrezze, 356 F.2d 1 (2d Cir. 1966).
There can be no question at this late date that Congress intended by the Administrative Procedure Act to assure comprehensive review of "a broad spectrum of administrative actions," including those made reviewable by specific statutes without adequate review provisions as well as those for which no review is available under any other statute. Abbott Laboratories v. Gardner, supra, 387 U.S. at 140, 87 S. Ct. 1507; see S.Rep.No. 752, 79th Cong. 1st Sess., 26 (1945); H.R.Rep. No. 1980, 79th Cong. 2d Sess., 41 (1946). Since the Army's issuance of this permit was final agency action for which there is no other adequate remedy in a court, and review is not clearly and convincingly precluded by the Rivers and Harbors Act, the Administrative Procedure Act must be read to confer equitable jurisdiction on the district court to protect by injunctive relief such rights as the plaintiff may have standing to assert. Kletschka v. Driver, 411 F.2d 436, 445 (2d Cir. 1969). In our discussion of standing, infra, we conclude that these plaintiffs are "aggrieved by agency action within the meaning of a relevant statute" and are therefore entitled to review. The district court has the power under § 706 to set aside agency action in excess of statutory authority, and we agree with the district court that issuance of the permit here exceeded the Army's authority. Under these circumstances, if the Administrative Procedure Act could not itself serve as a basis for jurisdiction, the important goal of subjecting final agency action to judicial scrutiny would be frustrated. We therefore conclude that the district court properly assumed jurisdiction.
Reference was likewise made to the Administrative Procedure Act to determine the plaintiffs' standing to obtain review. Their right to review was based on the Act's provision that "[a] person suffering legal wrong or * * * aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702. Two of the plaintiffs (the Citizens Committee and the Sierra Club) made no claim that the proposed Expressway or the issuance of the dredge and fill permit threatened any direct personal or economic harm to them. Instead they asserted the interest of the public in the natural resources, scenic beauty and historical value of the area immediately threatened with drastic alteration, claiming that they were "aggrieved" when the Corps acted adversely to the public interest. They are, as the federal defendants observe, serving as "private Attorney Generals" to protect the public interest. See Associated Industries of State of New York v. Ickes, 134 F.2d 694, 704 (2d Cir. 1943).
Allowance of standing to private attorneys general in "public actions"*fn3 challenging administrative activity is by no means a new or unusual concept. See Associated Industries v. Ickes, supra; Office of Communication of United Church of Christ v. F.C.C., 123 U.S. App.D.C. 328, 359 F.2d 994 (1966); Reade v. Ewing, 205 F.2d 630 (2d Cir. 1953); cf. Scripps-Howard Radio, Inc. v. F.C.C., 316 U.S. 4, 62 S. Ct. 875, 86 L. Ed. 1229 (1942); F.C.C. v. Sanders Brothers Radio Station, 309 U.S. 470, 60 S. Ct. 693, 84 L. Ed. 869, 1037 (1940). It is significant that standing in such cases has derived from judicial interpretation of the statutory term "aggrieved" as descriptive of persons entitled to review. Thus under the Federal Communications Act, where agency action assertedly contravened the public interest, private litigants were held to be "persons ...