592 F. 2d 164 - Concerned Citizens of Bushkill Township v. Costle III Plainfield Township Taxpayers Association

This controversy depends on the power of a district court to grant a continuance of an evidentiary hearing on an application for preliminary injunctive relief,1 where an administrative agency has requested time to reconsider its ruling challenged in the case, and on the propriety of using such a power in the situation presented by this record. The above appeal challenges a March 1, 1978, district court order denying a motion filed January 31, 1978, by Bushkill-Lower Lehigh Joint Sewer Authority, defendant-intervenor (hereinafter "Authority"), to restrain the EPA Administrator (Costle) and the Regional EPA Administrator for Pennsylvania (Schramm) "from (a) continuing to breach the grant agreement between the United States Environmental Protection Agency ('EPA') and the defendant-intervenor and refusing and/or failing to process said grant agreement in accordance with the usual customary practices and procedures, (b) refusing and/or failing to defend these consolidated actions in good faith, and (c) refusing and/or failing to take proper and necessary steps in furtherance of securing the earliest practicable trial date of" two consolidated actions brought by Concerned Citizens and Taxpayers, et al., against Costle and Schramm. We affirm the district court order insofar as it denied the above portion of the motion filed January 31, 1978.2

On October 26, 1977, the Concerned Citizens of Bushkill Township, et al. ("Concerned Citizens") and Plainfield Township Taxpayers Association, et al. ("Taxpayers") filed separate complaints in the district court, alleging that the above EPA officials were responsible for the decision to grant federal funds in amounts exceeding nine million dollars to the Authority for construction of a sewer project in Northampton County, Pennsylvania, known as the Bushkill-Lower Lehigh Interceptor-Collector System ("Interceptor-Collector System"). The complaints described the project as a system of sewer interceptors and collectors extending from Easton, Pennsylvania, upstream along two creeks for approximately 30 miles. The plaintiffs alleged that the proposed project would have a significant environmental impact, principally by encouraging development of a currently rural area, and that EPA had violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 ff., by committing federal funds for the project and by doing so without first preparing an environmental impact statement ("EIS"). It also alleged that EPA's determination that the project would have no significant adverse environmental impact was arbitrary and capricious.3 Further, it was alleged that EPA failed to study the environmental and economic impacts of the project for waste treatment funding, as required by the Federal Water Pollution Control Act ("FWPCA"), 33 U.S.C. § 1281.

On October 28, 1977, the parties stipulated that plaintiffs' motions for a preliminary injunction would be heard simultaneously with the trial on the merits on November 21, 1977, which trial date was subsequently reset for January 3, 1978. Further, the parties stipulated that EPA and the Authority would not issue any further project approval or accept or award any contracts for sewer construction until after the trial and district court decision.4 Following a December 23, 1977, conference with the district court concerning settlement and EPA's desire to restudy the project, the January 3, 1978, trial date was continued and the parties were directed to appear before the court on February 3, 1978.5

The district court opinion describes the situation before that court on February 3 and its decision to hear argument on the motion filed January 31, 1978, as follows:

"At the February 3, 1978 conference, EPA advised the Court that it had determined that its prior approval of the project without an environmental impact statement was or may have been based upon inaccurate and inadequate information, and that it had therefore decided to prepare an environmental impact statement, at least as to certain areas, to hold further project action in abeyance until such a statement could be prepared, with necessary public participation, fully considered, and ultimately filed in final form.

"At the same time, February 3, 1978, the Authority presented to the Court a complex motion, supported by some fifty pages of affidavits and brief, which it had earlier served upon other parties, and which it served upon the Court that very morning, and requested that the Court hold a hearing on the motion immediately. The Court declined to do so, and instead directed that the parties file briefs, and fixed oral argument thereon for February 28, 1978."

The parties had been actively engaged in discovery in the fall of 1977 and January 1978.

The district court concluded that the Authority's claims were basically for money damages against the United States for breach of contract or based on a United States statute and were barred by sovereign immunity, as well as the provision for recovery of such claims of over $10,000.00 against the United States in the Court of Claims (see 28 U.S.C. § 1491), using this language at 158a-159a:

"It is clear that the Authority's claims, both as stated in the proposed cross-claim, and by any independent analysis, ultimately constitute claims for money damages for breach of contract.

"This may be observed by noting what relief would satisfy the Authority: It is the disbursement of the project grant. Nothing less would alleviate the Authority's concerns. . . . Parenthetically, the Authority also requests that EPA be enjoined and mandamused to defend this action in good faith, but the sole basis for this claim is EPA's alleged contractual obligation, and the sole benefit to the Authority would again be the disbursement of the federal grant.

"Finally, this may be seen by the fact that neither EPA nor plaintiffs are doing anything to prevent the Authority from proceeding with the project. Given relief from its voluntary stipulation, there is no restraint whatsoever upon the Authority other than the matter of finances."

That court also held that there was no mandamus jurisdiction under 28 U.S.C. § 1361 because a discretionary, rather than a ministerial, duty was imposed on the original defendants and that an alternative remedy is available in the Court of Claims under 28 U.S.C. § 1491, citing Mattern v. Weinberger, 519 F.2d 150 (3d Cir. 1975); Grant v. Hogan, 505 F.2d 1220 (3d Cir. 1975); Carter v. Seamans, 411 F.2d 767 (5th Cir. 1969).6

On March 1, 1978, the district court denied the motion of Authority and also provided in that order:

"It Is Further Ordered that said intervening defendant is relieved from its undertakings and obligations under the Stipulation and Order entered on October 28, 1977, and as to all other parties said Stipulation and Order shall remain in full force and effect, pending further order of this Court."

On March 7, the court entered an order transferring the case to the Civil Suspense File "for statistical purposes" pending preparation of an EIS "as to certain areas within the project . . .," without prejudice to the rights of the parties. On April 27, 1978, the Authority filed its notice of appeal challenging only the March 1, 1978, order.

The district court had jurisdiction to determine whether the defendants had made and were continuing to make an objective, good faith effort to comply with the requirements of Title 42, Chap. 55, of the United States Code, entitled National Environmental Policy Act. See National Helium Corp. II, supra at 1001-03, 1005-06 (Breitenstein, J., concurring). This court's jurisdiction is limited to reviewing that portion of the March 1, 1978, order refusing to grant an injunction. See 28 U.S.C. § 1292(a)(1) and Gardner, supra, and Larson, supra, cited in note 2 above.7

III. RECONSIDERATION OF THE PRIOR APPROVAL OF THE SEWER

PROJECT AND DETERMINATION OF EPA TO PREPARE AN EIS

As noted above at pages 6-7, EPA advised the court at a conference on February 3, 1978, that (1) its prior approval of the project without an EIS was or may have been based on inaccurate and inadequate information, and (2) it had decided (a) to prepare an EIS, at least as to certain areas, and (b) to hold further project action in abeyance until such a statement could be prepared, with necessary public participation and full consideration.

The congressional declaration of national environmental policy in NEPA provides:

"(a) The Congress, recognizing the profound impact of man's activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.

"(b) In order to carry out the policy set forth in this chapter, it is the Continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may

"(1) fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;

"(2) assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings;

"(3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences;

"(4) . . . maintain, wherever possible, an environment which supports diversity and variety of individual choice;

"(5) achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities; and

"(6) enhance the quality of renewable resources . . . .

"(c) The Congress recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment."

42 U.S.C. § 4331 (emphasis supplied).

The emphasis placed by Congress on the "continuing" obligation of Federal Government agencies to carry out the above policy and accomplish the environmental conditions prescribed in 42 U.S.C. § 4331(b), as quoted above, is further implemented by Executive Order No. 11,752, portions of which are quoted in the Appendix to this opinion, and by the requirements of 42 U.S.C. § 4332(C) that (1) "the policies, regulations and public laws of the United States shall be interpreted and administered in accordance with" the foregoing policies, and (2) all federal agencies 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 . . . on the environmental impact" of the proposal stating adverse effects which cannot be avoided, alternatives to the proposal, any irreversible and irretrievable commitment of resources, etc.8

It is clear that projects in the design or pre-construction stage are subject to NEPA. See Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323 (4th Cir. 1972). In Shiffler v. Schlesinger, 548 F.2d 96, 104 (3d Cir. 1977), this court, in an opinion by Chief Judge Seitz, stated that only when an irreversible commitment of resources has already produced most of the environmental harm anticipated by an EIS does the reduced NEPA benefit allow the court to balance the marginal environmental protection that would result against completion of the project.9

In view of the above statutory and regulatory (see Appendix) language, the federal courts have emphasized the dangers of making "an irreversible and irretrievable commitment of resources" (see 42 U.S.C. § 4332(C)(v) quoted above) by undertaking construction without full consideration of the NEPA policies set forth above. See e. g., National Resources Defense Council v. Nuclear Regulatory Comm'n, 539 F.2d 824, 845 (2d Cir. 1976), and cases there cited; Stop H-3 Association v. Volpe, 353 F.Supp. 14, 15-16 (D.Haw.1972).

In Calvert Cliffs' Coord. Com. v. United States A. E. Com'n, 146 U.S.App.D.C. 33, 37-38, 449 F.2d 1109, 1113-14 (1971), the court said:

"In general, all agencies must use a 'systematic, interdisciplinary approach' to environmental planning and evaluation 'in decisionmaking which may have an impact on man's environment.' In order to include all possible environmental factors in the decisional equation, agencies must 'identify and develop methods and procedures * * * which will ensure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations.' 'Environmental amenities' will often be in conflict with 'economic and technical considerations.' To 'consider' the former 'along with' the latter must involve a balancing process. In some instances environmental costs may outweigh economic and technical benefits and in other instances they may not. But NEPA mandates a rather finely tuned and 'systematic' balancing analysis in each instance.

"To ensure that the balancing analysis is carried out and given full effect, Section 102(2)(C) requires that responsible officials of all agencies prepare a 'detailed statement' covering the impact of particular actions on the environment, the environmental costs which might be avoided, and alternative measures which might alter the cost-benefit equation. The apparent purpose of the 'detailed statement' is to aid in the agencies' own decision making process and to advise other interested agencies and the public of the environmental consequences of planned federal action. Beyond the 'detailed statement,' Section 102(2)(D) requires all agencies specifically to 'study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.' This requirement, like the 'detailed statement' requirement, seeks to ensure that each agency decision maker has before him and takes into proper account all possible approaches to a particular project (including total abandonment of the project) which would alter the environmental impact and the cost-benefit balance. . . .

". . . Indeed, the requirement of environmental consideration 'to the fullest extent possible' sets a high standard for the agencies, a standard which must be rigorously enforced by the reviewing courts." (Footnotes omitted.)

In view of the foregoing statutory terms and judicial decisions, it is clear that there was no abuse of discretion10 by the district court in granting several additional months to the EPA to reconsider its approval of this project and to prepare an EIS, since it had a rational basis for determining that the government official defendants were justified in requesting more time to reevaluate their positions.11 The district court had the duty to consider the fact that there had been no irretrievable commitment of resources when it acted in this case.

The Authority states in its reply brief, at page 13:

"In the present case, to the contrary, the Authority is not seeking any payments at all as a result of its cross-claims. Rather it seeks only to enforce the nondiscretionary and statutory duty imposed upon EPA to comply with NEPA and the FWPCA."

However, NEPA requires that the EPA defendants continue to consider the project until there has been an irretrievable commitment of resources. The record12 does not establish a duty on such defendants to give final approval to the Interceptor-Collector System prior to an evidentiary hearing on the request for an injunction, particularly where the Authority will have a remedy at law in the Court of Claims under 28 U.S.C. § 1491 for any damages it is able to prove it has sustained. Also, no precedent has been cited by the Authority to support the position that the EPA defendants must represent its position in this law suit in which it has intervened.13

IV. REFUSAL OF THE DISTRICT COURT TO TERMINATE THE

As stated above (note 5), the court granted the EPA defendants a continuance of the January 3, 1978, trial date on December 23, 1977, subject to reconsideration of the trial date at a February 3, 1978, conference. At that conference, Authority presented its lengthy motion seeking, Inter alia, a prompt trial or hearing on its request for an injunction. After argument on February 28, this motion was denied by a March 1, 1978 order, which left in full force and effect the stipulation maintaining the project in status quo "pending further order of this court." The district court has not refused to issue an injunction but has continued the hearing date at the request of the EPA defendants, with the approval of plaintiffs but contrary to the wishes of Authority.

In Sutherland Paper Co. v. Grant Paper Box Co., 183 F.2d 926, 931 (3d Cir. 1950), this court said:

"There is no question that as a general proposition, the grant or denial of continuances is a matter within the discretion of the trial court. There is also no question that an abuse of that discretion is subject to correction by an appellate court."

In Landis v. North American Co.,14 299 U.S. 248, 254-56, 57 S.Ct. 163, 166, 81 L.Ed. 153 (1936), the Court said:

"(T)he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance. (Citing cases.) True, the suppliant for a stay must make out a clear case of hardship or inequity in being required to go forward, if there is even a fair possibility that the stay for which he prays will work damage to some one else. . . . Occasions may arise when it would be 'a scandal to the administration of justice' in the phrase of Jessel, M. R. (Amos v. Chadwick, L.R. 9 Ch.Div. 459, 462), if power to coordinate the business of the court efficiently and sensibly were lacking altogether.

"We must be on our guard against depriving the processes of justice of their suppleness of adaptation to varying conditions. Especially in cases of extraordinary public moment, the individual may be required to submit to delay not immoderate in extent and not oppressive in its consequences if the public welfare or convenience will thereby be promoted. . . . (D)iscretion was abused if the stay was not kept within the bounds of moderation."

In this case, also, the district court had a basis for concluding that the public welfare, as defined by Congress and the Executive in the statutes and Executive Order referred to above, would be promoted by the continuance in order to permit the EPA defendants to redefine their position. Whether the district court would have extended the continuance for an immoderate period will never be known with certainty because the Authority deprived it of jurisdiction by filing the notice of appeal on April 27, 1978. Since the district court reviewed the date for an evidentiary hearing on October 28, November 21, December 23, February 3 and February 28, there is no reason to believe that it would not have continued to review the matter and insist that the EIS be filed within a reasonable time or, in the alternative, that an evidentiary hearing be held.

The record does not establish that the EPA defendants have been responsible for procrastination, dilatory tactics, neglect or bad faith. See Gaspar v. Kassm, 493 F.2d 964, 969 (3d Cir. 1974); Davis v. United Fruit Co., 402 F.2d 328, 330-31 (2d Cir.), Cert. denied, 393 U.S. 1085, 89 S.Ct. 869, 21 L.Ed.2d 777 (1969); Chung Wing Ping v. Kennedy, 111 U.S.App.D.C. 106, 294 F.2d 735, 737, Cert. denied, 368 U.S. 938, 82 S.Ct. 380, 7 L.Ed.2d 337 (1961).

We can well understand the frustration of the Authority, and we too find it unfortunate that, interested persons in the locality having tentatively decided several years ago that such a project was necessary and the Authority having been permitted to expend its valuable time, effort and money, EPA has now tentatively determined to change its 1977 position, undertake further studies, and prepare a limited EIS. However, we note that the federal courts have been reluctant to grant exceptions to the impact statement requirement. See Note, The Environmental Impact Statement Requirement in Agency Enforcement Adjudication, Parts I-B, II and IV, 91 Harv.L.Rev. 815, 825 ff. (including cases there cited), 831 ff. and 839 ff. (1978).

On the facts of this case, we can find no abuse of discretion in the district court's continuance of the evidentiary hearing on the request for an injunction.

We affirm that portion of the March 1, 1978, district court order which denied the application for an injunction and was appealable under 28 U.S.C. § 1292(a) (1), in accordance with the foregoing opinion. In order that the district court may reconsider the present status of this litigation, particularly in light of the EIS which should now be available, we direct that the record be remanded to the district court forthwith.

Executive Order No. 11,752, dated 12/17/73 (38 F.R. 34793), contains, Inter alia, this wording:

"Section 1. Policy. It is the purpose of this order to assure that the Federal Government, in the design, construction, management, operation, and maintenance of its facilities, shall provide leadership in the nationwide effort to protect and enhance the quality of our air, water and land resources through compliance with applicable standards for the prevention, control, and abatement of environmental pollution in full cooperation with State and local governments. Compliance by Federal facilities with Federal, State, interstate, and local substantive standards and substantive limitations, to the same extent that any person is subject to such standards and limitations, will accomplish the objective of providing Federal leadership and cooperation in the prevention of environmental pollution. In light of the principle of Federal supremacy embodied in the Constitution, this order is not intended, nor should it be interpreted, to require Federal facilities to comply with State or local administrative procedures with respect to pollution abatement and control.

"Sec. 3. Responsibilities. (a) Heads of Federal agencies shall, with regard to all facilities under their jurisdiction in the United States:

"(1) Ensure that applicable standards specified in section 4 of this order are met on a Continuing basis.

"(2) Cooperate with the Administrator and State, interstate, and local agencies in the prevention, control, and abatement of environmental pollution . . . .

"(4) Consider the environmental impact in the initial stages of planning for each new facility or modification to an existing facility in accordance with the National Environmental Policy Act (this chapter).

"(5) Include with all budget requests for the design and construction of new facilities or for modification of existing facilities funds for such measures as may be necessary to meet applicable standards specified in section 4. Budget requests shall reflect the most efficient alternative for meeting applicable standards.

"(7) Ensure that any funds appropriated and apportioned for the prevention, control, and abatement of environmental pollution are not used for any other purpose unless permitted by law and unless specifically approved by the Office of Management and Budget.

"(d) The Administrator shall:

"(4) Mediate conflicts between Federal agencies and State, interstate, or local agencies in matters affecting the application of, or compliance with, applicable standards specified in section 4.

"Sec. 4. Standards. (a) Heads of Federal agencies shall ensure that all facilities under their jurisdiction are designed, constructed, managed, operated, and maintained so as to conform to the following requirements:

"(2) Federal, State, interstate, and local water quality standards and effluent limitations respecting the discharge or runoff of pollutants adopted in accordance with or effective under the provisions of the Federal Water Pollution Control Act, as amended (section 1251 et seq. of Title 33, Navigation and Navigable Waters).

"(4) Guidelines for solid waste recovery, collection, storage, separation, and disposal systems issued by the Administrator pursuant to the Solid Waste Disposal Act, as amended (section 6901 et seq. of this title).

"(b) In those cases in which there are no environmental pollution standards as specified in subsection (a) for a particular geographic area or class of Federal facilities, the Administrator, in consultation with appropriate Federal, State, interstate, and local agencies, may issue regulations, which shall be published in the Federal Register, establishing environmental pollution standards for the purpose of this order." (Emphasis supplied.)