III. In Light of Secretary Hoffman's Withdrawal Of Authorization For The Original Locks and Dam 26 Project And His Submission Of Authorizing Legislation To Congress For The Revised Lock And Dam 26 Project, The Court Will Dissolve Its Preliminary Injunction.
The preliminary injunction issued by this Court in September 1974 restrained the defendants from commencing construction on the proposed Locks and Dam 26 project until they had complied with the applicable federal laws. The proposed project then in issue had been authorized by the Secretary of the Army; however, Secretary Hoffman expressly terminated that construction authority in April 1976. Thus, the original proposal is no longer viable. The new Lock and Dam 26 proposal has been submitted to Congress for approval,
and there appears to the Court to be no likelihood of any construction on the proposal until Congress enacts legislation authorizing such construction. Therefore, the preliminary injunction restraining construction is entirely unnecessary to ensure that plaintiffs do not suffer irreparable injury.
Under these circumstances, since there is no imminence, or even a reasonably foreseeable likelihood, of construction, cf. Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 589, 6 L. Ed. 2d 551, 81 S. Ct. 1135 (1961), the Court concludes that it would be an appropriate exercise of its equity jurisdiction to dissolve the existing preliminary injunction restraining construction. "There is . . . no dispute but that a sound judicial discretion may call for the modification of the terms of an injunctive decree if the circumstances, whether of law or fact, obtaining at the time of its issuance have changed, or new ones have arisen." System Federation No. 91, Ry. Employees' Dept. v. Wright, 364 U.S. 642, 647, 5 L. Ed. 2d 349, 81 S. Ct. 368 (1961). See Consolidated Edison Co. v. FPC, 167 U.S. App. D.C. 134, 511 F.2d 372, 378 (1974).
Of course, the dissolution of this preliminary injunction will be without prejudice to plaintiffs should they seek the same or similar relief in the future when and if such relief becomes appropriate.
IV. The Court Will Deny Defendants' Motions To Dismiss: Section 102(2)(C) Requires The Corps Of Engineers To Submit An Environmental Impact Statement To Congress With Its Proposal For Authorizing Legislation For The Construction Of Lock And Dam 26, And Plaintiffs Have A Right Of Action And Standing To Enforce That Requirement, And Their Claim Is Justiciable.
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" an environmental impact statement. To comply with this mandate and with the Corp of Engineers' own implementing regulation, which specifically requires the preparation of an EIS for "[recommendations] or reports to the Congress for legislation affecting Corps of Engineers programs including proposals to authorize projects (survey, review, and authorization reports) and other legislation, exclusive of appropriations," 33 C.F.R. § 209.410(e)(1) (1976);
see also 40 C.F.R. §§ 1500.5(a)(1), 1500.12 (1976), defendants prepared a final EIS which they submitted to Congress along with the proposed legislation. Plaintiffs now seek a declaratory judgment that this final EIS is inadequate and does not satisfy the requirements of section 102(2)(C).
Defendants argue that "[since] the Secretary of the Army has committed that Department to take no action toward [the reconstruction of Locks and Dam 26] unless expressly authorized by Congress," and since Congress has not yet authorized any such construction, "there is, at this time, no case or controversy which is subject to judicial review, nor is there any effective relief which this Court could conceivably grant."
Similarly, defendants argue that plaintiffs have no standing to challenge the adequacy of the final EIS since they suffer no "injury in fact" as a result of the Secretary's action in proposing legislation. The essence of defendants' argument is that a court can never review the adequacy of an EIS for a legislative proposal unless and until Congress takes action on the proposal.
This issue is apparently one of first impression; no case of which the Court is aware has addressed the question of whether the adequacy of an EIS for a legislative proposal can be reviewed by a court before Congress has acted on the proposal. In fact, surprisingly few cases have even considered whether the total failure of an agency to prepare an EIS for a legislative proposal can be challenged. The majority of the cases that have considered the question have held, though without substantial analysis, that an agency's failure to prepare an EIS for a legislative proposal can be reviewed by a court at the behest of a private plaintiff. See, e.g., Sierra Club v. Morton, 395 F. Supp. 1187 (D.D.C. 1975), appeal docketed, No. 75-1781 (D.C. Cir. Sept. 9, 1975); Environmental Defense Fund v. TVA, 339 F. Supp. 806 (E.D. Tenn.), aff'd, 468 F.2d 1164, 1181-82 (6th Cir. 1972). See also F. Anderson, The National Environmental Policy Act, in Federal Environmental Law, at 331-35 (E. Dolgin & T. Guilbert ed. 1974). However, one case in this district recently held that section 102(2)(C) "was designed solely to aid the Congress and was not intended to create a right of action in a private party to claim injury in some fashion from the ongoing legislative process." Wingfield v. Office of Management and Budget, Civil Action No. 77-489, Transcript at 6 (D.D.C. April 4, 1977), appeal docketed, (D.C. Cir. April 4, 1977).
Upon careful consideration of section 102(2)(C), the policies underlying its enactment, and the numerous cases that have analyzed the purposes of the EIS requirement for ["recommendations] and [reports] for . . . other major Federal actions significantly affecting the quality of the human environment," 42 U.S.C. § 4332(2)(C), the Court concludes that (1) the section 102(2)(C) EIS requirement for legislative proposals is enforceable by a private right of action, and that private right of action includes challenges to the adequacy of, as well as to the absence of, an EIS; (2) plaintiffs in the present case have standing to maintain such a challenge to the adequacy of the EIS for the proposed legislation authorizing the construction of Lock and Dam 26; and (3) this case is justiciable in that the Court has the power to enter a declaratory judgment as to the adequacy of the EIS and such a judgment would provide effective relief to the plaintiffs.
In ruling that the section 102(2)(C) EIS requirement for legislative proposals was not enforceable by a private right of action, the Wingfield court emphasized that
Congress has within its own investigatory and other resources ample means to obtain from the Executive whatever information it desires relating to environmental impact prior to taking action. It is clear, of course, that Congress did not intend to stultify itself by this legislation [NEPA] if at any point it was satisfied it had enough information to proceed in a given situation.
Wingfield, supra, Transcript at 4.
The Court does not doubt that Congress imposed the EIS requirement for proposed legislation to ensure that all agencies would provide Congress with detailed environmental information that could be considered by the legislators along with the agencies' proposals for legislation. The Court concludes, however, that the EIS requirement, both on "proposals for legislation" and on "other major Federal actions," was also intended by Congress to provide detailed environmental information to the public to permit them to participate in a meaningful way in further decisionmaking both at the administrative and legislative levels. In this way, NEPA was intended to ensure that both Congress and the public will be advised of the predicted consequences of the proposed legislation and the alternatives thereto, and they will therefore be able to act responsibly thereon.
This interpretation of section 102(2)(C) is supported by substantial precedent. See, e.g., Sierra Club v. Morton, 510 F.2d 813, 819 (5th Cir. 1975); Trout Unlimited v. Morton, 509 F.2d 1276, 1282 (9th Cir. 1974); Silva v. Lynn, 482 F.2d 1282, 1285 (1st Cir. 1973). Thus, the district court in Environmental Defense Fund v. TVA, 339 F. Supp. at 810, said with regard to the EIS requirement for proposed legislation:
The purpose of a section 102(2)(C) detailed environmental impact statement is (1) to aid the agency's decision-making process and (2) to advise the public of the environmental consequences of the proposed action. The requirement seeks to insure that each agency decision-maker has before him, and takes into proper account, all environmental impacts of a particular project. Only if this is done will the most intelligent, optionally beneficial decision be likely to result. Moreover, the detailed statement provides evidence that these factors have been taken into account. More importantly, it allows those removed from the decision-making process to evaluate and balance the factors on their own.