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EDF INC. v. JOHNSON

August 3, 1979

ENVIRONMENTAL DEFENSE FUND INC., SCENIC HUDSON PRESERVATION CONFERENCE, HUDSON RIVER SLOOP CLEAR-WATER, INC., FEDERATED CONSERVATIONISTS OF WESTCHESTER COUNTY, INC., and ROCKLAND COUNTY CONSERVATION ASSOC., INC., Plaintiff,
v.
JAMES A. JOHNSON, Division Engineer, North Atlantic Division, U.S. Army Corps of Engineers, JOHN W. MORRIS, Chief of Engineers, CLIFFORD A. ALEXANDER, Secretary of the Army, Defendants



The opinion of the court was delivered by: GAGLIARDI

Plaintiffs, a consortium of public interest organizations concerned with the conservation of the nation's scenic and natural resources, commenced this action for declaratory and injunctive relief alleging that the defendants, the North Atlantic Division of the State Army Corps of Engineers and several of its officers, prepared plans for the Hudson River Skimming Project in violation of the Water Resources Planning Act ("WRPA"), 42 U.S.C. § 1962, the Northeast Water Supply Act ("NEWS"), 42 U.S.C. § 1962d-4, and the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332, and accompanying regulations. *fn1" Jurisdiction is premised upon each of these statutes as well as 28 U.S.C. § 1331. Plaintiffs have moved for a preliminary injunction pursuant to Rule 65(a), Fed. R. Civ. P., and defendants have moved to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6), Fed. R. Civ. P., for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted. For the reasons discussed below, plaintiffs' motion is denied and defendants motion to dismiss pursuant to Rule 12(b)(6), Fed. R. Civ. P. is granted. *fn2"

 Statement of Facts

 In 1965, Congress passed the NEWS Act, 42 U.S.C. § 1962d-4, authorizing the Army Corps of Engineers to prepare plans for meeting the future water needs of the large metropolitan areas in the United States. The Act also provides that such plans must be prepared in accordance with the WRPA, 42 U.S.C. § 1962. Pursuant to this mandate, the North Atlantic Division of the Corps of Engineers ("the Corps") studied the water supply problems of the Northeast, and, in 1975, issued an interim report which identified metropolitan areas with the most critical water supply problems. Sometime after the publication of the interim report, the Corps identified the Hudson River Skimming Project ("the HRP" or "the project") as "the most appropriate early action" for the New York metropolitan area and released a draft environmental impact statement ("draft EIS") for the project. In November 1977, the Corps published the final NEWS report. The final report described the HRP in great detail and estimated that the HRP would take eight years and cost $ 4.6 billion to construct. The report included a two-volume technical study and a revised draft EIS for the project. In addition, the report recommended that the appropriate Corps official seek Congressional authorization for an $ 8 million, three to five year general design memorandum study ("Phase I Study") of the HRP.

 On January 26, 1978, the Board of Engineers for Rivers and Harbors approved the Corps recommendations with minor revisions. The report of the Board of Engineers, the final report of the Corps, and the revised DEIS were then circulated to other federal agencies for review. Later in 1978, the House Public Works Committee included in its version of the Water Resource Development Act authorization for the funding of the Phase I Study. Although that bill did not pass, the presently pending 1979 version of the bill also include authorization for funding the Phase I Study.

 The Corps does not intend to prepare a final environmental impact statement ("final EIS") until after the Phase I Study is completed; Congress is thus being asked to determine whether or not to proceed with the study on the basis of the Corps' final report and a revised draft EIS.

 Discussion

 Plaintiffs allege, in sum and substance, that defendants have violated various provisions of the NEWS Act, 42 U.S.C. § 1962d-4, NEPA, 42 U.S.C. § 4332, and accompanying regulations, by seeking Congressional authorization for the Phase I Study prior to both (1) the preparation of a final EIS and (2) the Corps' consideration of alternatives to the HRP that could just as easily serve to alleviate the long term water needs of the New York metropolitan area. Notwithstanding the possible merit of these arguments, the court determines that the instant dispute is not ripe for judicial review.

 Section 102(2)(c) of NEPA, 42 U.S.C. § 4332(2)(c) directs that, to the fullest extent possible,:

 . . . all agencies of the Federal Government shall include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by a responsible official on --

 (i) the environmental impact of the proposed action,

 . . .

 (iii) alternatives to the proposed action,

 . . .

 and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed ...


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