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PRINCE GEORGE'S CTY. v. HOLLOWAY

December 5, 1975

PRINCE GEORGE'S COUNTY, MARYLAND, Plaintiff,
v.
Admiral James L. HOLLOWAY, III, Chief of Naval Operations, et al., Defendants. Paul FOX et al., Plaintiffs, v. Donald H. RUMSFELD, Secretary of Defense, et al., Defendants



The opinion of the court was delivered by: GESELL

 GESELL, District Judge.

 Plaintiffs in these separate actions seek to prevent the Navy from proceeding with a proposed consolidation of the Naval Oceanographic Program and the transfer of its civilian personnel to a site in Mississippi owned by NASA. They rely primarily on the National Environmental Policy Act (42 U.S.C. ยง 4331 et seq.), and their motions for preliminary injunction have now been heard. Prince George's County, Maryland, presently accommodates the bulk of the facilities to be consolidated, and a majority of the personnel affected live in the County. Plaintiffs in Fox purport to represent affected employees, particularly those employees who have not yet determined whether to move or resign, a group which includes a substantial number of blacks. Since the motions were heard on the same record and a motion to consolidate is unopposed, the Court has determined that Fed.R.Civ.P. 42(a) is properly invoked and the actions are consolidated for purposes of the present motions.

 The Naval Oceanographic Program is presently scattered among 19 separate facilities, mostly in the Suitland, Maryland, area, and employs some 1300 civilians. The Navy has been considering the desirability of consolidating the program for reasons of management efficiency since 1963 and consolidation has been deemed more urgent as the program has developed. After checking possibilities suggested in some 15 states, the choice was narrowed to ten sites, including Maryland. It then appeared that one site, that at Bay St. Louis, Mississippi, where NASA could offer unutilized facilities released with the termination of the Apollo Moon Program, was the most desirable for reasons of efficiency and cost. A decision was then made within the Navy to transfer to Bay St. Louis early in 1975 and NASA agreed to grant the Navy a 25-year permit in April, 1975. The consolidation and transfer involve expenditures by the Navy and NASA of about $19,000,000, and is admittedly a major federal action covered by the National Environmental Policy Act.

 The Navy was, of course, well aware of the Act and purported to comply with its requirements. After preliminary assessment, a draft environmental impact statement was published in April, 1975; public hearings were held at Suitland and Bay St. Louis; and a Final Environmental Impact Statement was issued in July, 1975. The primary thrust of the impact statement was to determine the environmental effect of the move at Bay St. Louis. A discussion of the Bay St. Louis area was presented outlining the favorable and unfavorable aspects of the area as they might impinge on the quality of life of Oceanographic families moving in from Maryland and the Greater Washington Metropolitan Area.

 The Navy considered five sites as "most competitive" for the proposed relocation (Environmental Impact Statement, Vol. I at 90). Among these were Suitland and Hyattsville, Maryland, as well as Bay St. Louis. Plaintiffs do not question the selection of these alternatives. The preliminary analysis demonstrated that environmental considerations were generally more favorable at the other four sites than at Bay St. Louis. These four sites were nevertheless rejected for reasons of economics and managerial efficiency in favor of Bay St. Louis, which admittedly created environmental problems involving schools, housing and race relations in the area.

 A limited analysis was made of the impact on Prince George's County. While noting that there would be no environmental effect resulting from abandonment of the move in its entirety, the effect of the loss of the program was only mentioned in cursory fashion and new construction to permit consolidation at Suitland was considered too expensive and politically impractical. The Department of Defense over a period of time was aware that Congress looked with disfavor upon capital expenditures for military installations in the National Capital Area, which was deemed already too concentrated.

 The complaints herein were filed on September 3, 1975, and November 3, 1975, after those opposed to the move had unsuccessfully sought aid of the Congress by attempting to block appropriations. When congressional committees approved appropriations to finance the move in spite of vigorous and persistent opposition, plaintiffs turned to the courts. The transfer of the Naval Oceanographic Program is now in progress. Buildings at the site are being refurbished, records are being shipped down, employees have been notified and some have sold homes and have moved. Other personnel are scheduled for transfer, if they agree, on a staggered basis over the next 18 months. The prayers for preliminary injunction were promptly heard after a temporary restraining order sought by Prince George's County was denied. Testimony was taken and numerous depositions filed. The issues were fully briefed and argued.

 Before turning to the specific issues in controversy, it should be noted that the National Environmental Policy Act is typified by generalities and indefiniteness. It is a ringing statement of public policy and concern for the environment and in this respect it has been reinforced and emphasized by many regulations and policy pronouncements from sectors of the Executive Department. The Act is essentially a procedural and disclosure statute. Governmental decisions must be made with full awareness of their environmental impact, but the Act, at least in a situation like the present, contains no provision which prevents the Government agencies involved from moving to a site which, among available alternatives, is clearly the least desirable environmentally. Thus the role of a federal court called on to review a federal action with environmental consequences is limited. Assuming the available alternatives have been generally identified, its sole function is to determine whether or not the requisite procedures were followed and appropriate disclosures made before the final administrative decision was reached. While this is a limited function, it is an essential one. If the National Environmental Policy Act is allowed to be a mere formality which busy bureaucrats can treat as an annoyance rather than as a vital aid in true decision making, the clear intent of Congress will be frustrated. It is not a matter of doing paper work to satisfy form; it is, rather, a matter of placing before the decision maker, ever conscious of efficiency and cost, the equal if not greater need to weigh factors affecting the quality of life on this overcrowded and rapidly deteriorating continent. This is the repeated and insistent holding of many courts that have confronted comparable problems under the Act. As the United States Court of Appeals for this Circuit stated in its seminal decision in Calvert Cliffs Coordinating Committee, Inc. v. United States Atomic Energy Commission, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1128 (1971):

 
NEPA requires that an agency must -- to the fullest extent possible under its other statutory obligations -- consider alternatives to its actions which would reduce environmental damage. That principle establishes that consideration of environmental matters must be more than a pro forma ritual. Clearly, it is pointless to "consider" environmental costs without also seriously considering action to avoid them. Such a full exercise of substantive discretion is required at every important, appropriate and non-duplicative stage of an agency's proceedings. (Emphasis in original.)

 Plaintiffs advance several sharp challenges to what has occurred in this instance. They claim that necessary procedures and disclosures contemplated by the National Environmental Policy Act have not been followed or made. Without attempting at this stage to detail each of the many criticisms suggested by the papers, the Court, as will appear, considers the Environmental Impact Statement inadequate in two respects, which are decisive.

 It is necessary, however, first to determine whether or not plaintiffs have the requisite standing to challenge the move to Mississippi. The Court has concluded that both plaintiffs have standing for the following reasons.

 Much has been written on standing, including many cases arising under the National Environmental Policy Act. See e.g., United States v. SCRAP, 412 U.S. 669, 93 S. Ct. 2405, 37 L. Ed. 2d 254 (1973); Sierra Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972); Barlow v. Collins, 397 U.S. 159, 90 S. Ct. 832, 25 L. Ed. 2d 192 (1970); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970); Gifford-Hill & Co. v. Federal Trade Commission, 173 U.S. App. D.C. 135, 523 F.2d 730 (D.C.Cir.1975); Commonwealth of Pennsylvania v. Morton, 381 F. Supp. 293 (D.D.C.1974). The Court of Appeals for this Circuit has recently summarized the applicable test:

 
A plaintiff has standing to challenge an administrative action in federal court if the challenged action caused it "injury in fact" and if "the alleged injury was to an interest 'arguably within the zone of interests to be protected or regulated' by the statutes that the agencies were ...

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