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Environmental Defense Fund Inc. v. Johnson

decided: August 13, 1980.

ENVIRONMENTAL DEFENSE FUND, INC., SCENIC HUDSON PRESERVATION CONFERENCE, HUDSON RIVER SLOOP CLEARWATER, INC., FEDERATED CONSERVATIONISTS OF WESTCHESTER COUNTY, INC., AND ROCKLAND COUNTY CONSERVATION ASSOC., INC., PLAINTIFFS-APPELLANTS,
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-APPELLEES



Appeal from a judgment of the United States District Court for the Southern District of New York, Hon. Lee P. Gagliardi, Judge, which denied plaintiffs' motion for a preliminary injunction and granted defendants' motion to dismiss the complaint. Affirmed.

Before Mulligan and Oakes, Circuit Judges, and Pollack, District Judge.*fn*

Author: Mulligan

This is an appeal from a judgment of the United States District Court for the Southern District of New York, Hon. Lee P. Gagliardi, Judge, which denied plaintiffs' motion for a preliminary injunction and granted defendants' motion to dismiss the complaint. In a decision reported at 476 F. Supp. 126, the court below concluded that the suit was not ripe for judicial review. We agree.

In 1965, Congress passed the Northeastern United States Water Supply ("NEWS") Act, 42 U.S.C. § 1962d-4, which recognized that "assuring adequate supplies of water for the great metropolitan centers of the United States has become a problem of such magnitude that the welfare and prosperity of this country require the Federal Government to assist in the solution of water supply problems." The Act authorized the Secretary of the Army, acting through the Chief of Engineers, to prepare plans pursuant to the Water Resources Planning ("WRP") Act (42 U.S.C. § 1962 et seq.) to meet the long range water supply needs of the northeastern United States, in cooperation with federal, state and local agencies.

In accordance with this mandate, the North Atlantic Division of the Corps of Engineers ("the Corps") studied the water supply and demand problems of the Northeast, and in 1975 produced an Interim NEWS Report which identified those major metropolitan areas with the most urgent need for additional supplies of water. After the Interim Report was published, the Corps recommended a specific "early action project" for the New York metropolitan area the Hudson River Skimming Project ("HRP").*fn1 In July 1977, the Chief of Engineers issued a Draft Environmental Impact Statement ("DEIS") for the HRP. Later that year, the Corps released a Final NEWS Report*fn2 which described the HRP at length and estimated that the project would take eight years and cost $4.6 billion to construct. The Final NEWS Report further noted that certain questions, such as the projected water demand for the region under study, were beyond the scope of the report in terms of expense and time required. Therefore, the Final Report recommended that the Corps seek Congressional authorization for a three to five year eight million dollar Phase I General Design Memorandum Study of the Hudson River Project ("Phase I Study").

In January 1978, the Board of Engineers for Rivers and Harbors approved the Corps' recommendations. The report of the Board of Engineers, the final report of the Corps, and the revised DEIS have been circulated to other federal agencies for review. In addition, the Final NEWS Report is currently under review by the Water Resources Council, an interagency body established under the WRP Act (42 U.S.C. § 1962a) to coordinate the planning and development of water projects on the federal level. Congress has not yet authorized funding for the Phase I Study. The Corps does not intend to issue a final environmental impact statement ("final EIS") until the Phase I Study has been completed.

Plaintiffs-appellants Environmental Defense Fund, Inc., Scenic Hudson Preservation Conference, Hudson River Sloop Clearwater, Inc., Federal Conservationists of Westchester County, Inc., and Rockland County Conservation Association, Inc. are all public interest conservation organizations committed to the protection of the environment and natural resources of this nation. They commenced this action against defendants, the North Atlantic Division of the State Army Corps of Engineers and several of its officers, seeking declaratory and injunctive relief. Plaintiffs alleged in their complaint that defendants violated the WRP Act, 42 U.S.C. § 1962 et seq., the NEWS Act, 42 U.S.C. § 1962d-4, and the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332, and certain accompanying regulations*fn3 by attempting to obtain Congressional authorization for the Phase I Study 1) prior to the preparation of a final EIS and 2) without consideration by the Corps of other drought protection alternatives to the HRP that could also solve the water supply problems of the New York metropolitan area. Plaintiffs complained that this failure to consider a range of objectives resulted in the Corps' failure to prepare an "Environmental Quality Plan" as required by regulations promulgated by the Water Resources Council and the Corps itself.*fn4 Plaintiffs moved before the district court for a preliminary injunction pursuant to Fed.R.Civ.P. 65(a), and defendants moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). As noted above, Judge Gagliardi dismissed the complaint pursuant to Rule 12(b)(6), concluding that the case was not ripe for judicial review. We affirm.

In determining whether an administrative action is final and judicially reviewable within the meaning of section 10(c) of the Administrative Procedure Act ("APA"), 5 U.S.C. § 704, the Supreme Court has indicated that the finality requirement is to be interpreted in "a pragmatic way." Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S. Ct. 1507, 1515, 18 L. Ed. 2d 681 (1967). The Court has also stated that in determining finality we must decide "whether the process of administrative decisionmaking has reached a stage where judicial review will not disrupt the orderly process of adjudication and whether rights or obligations have been determined or legal consequences will flow from the agency action." Port of Boston Marine Terminal Ass'n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S. Ct. 203, 209, 27 L. Ed. 2d 203 (1970).

An application of these principles here, as well as common sense, compels the conclusion that the Corps' issuance of a report recommending a further study of the HRP, which it is estimated will take three to five years to complete and cost eight million dollars, cannot possibly be characterized as a "final agency action" within the meaning of section 10(c) of the APA. The Corps NEWS Report does not recommend the construction of the HRP, nor does it advocate any other definitive action with respect to the project. The Report simply seeks funds from Congress for further study of the HRP. If Congress doesn't grant the funds, the HRP cannot be constructed and judicial intervention will have been totally unnecessary.*fn5

Even if funds are made available, the proposed Phase I Study may reaffirm the HRP, reform it, or even recommend that it not be constructed. We are here asked to intervene in an administrative process which at this point has created no rights or obligations and involves no legal consequences. As Judge Gagliardi observed, "the possibility still exists that the HRP either may be abandoned or significantly altered after the Phase I Study is completed." 476 F. Supp. at 130.

We conclude that no final agency action has been taken, that the issues are not ripe for adjudication and that our intervention would not only be a waste of judicial resources but an untoward interference in the administrative process.

Appellants also argue that section 102(2)(c)*fn6 of NEPA requires that the Corps prepare a final environmental impact statement at this time. This contention was properly rejected by Judge Gagliardi. A proposal for legislation which would simply authorize further study of a contemplated project is clearly not one "significantly affecting the quality of the human environment." While a recommendation that the HRP be constructed may have such an impact, a proposal seeking funds for further study has no impact on anything. The NEWS Act Study indicates that there is presently insufficient data to determine completely the impact of the HRP on the environment and that concerns have been expressed that the projected water demand for the region under study may be too high. At this point we cannot understand how alternatives to HRP can be meaningfully evaluated. Not knowing what the dimensions of HRP may be, it is unrealistic at this time to discuss the viability of alternative projects. See Kleppe v. Sierra Club, 427 U.S. 390, 96 S. Ct. 2718, 49 L. Ed. 2d 576 (1976).

Accordingly, the decision of the district court granting the Corps' motion to dismiss the complaint is affirmed.

OAKES, Circuit Judge (dissenting):

I respectfully dissent. The majority holds that the "Final NEWS Report," which the Corps itself calls "the final report to be prepared under authority of (the NEWS Act)," is not final agency action. It therefore, the majority holds, does not warrant judicial review at this time to determine whether there has been compliance with that Act and the Water Resources Planning Act, as well as with the Corps' own planning regulations. Although one might initially think that a call for further study can never be final, I am convinced that review is warranted at this time because, as I see it, the "final report" completes the ...


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