ON MOTION TO NARROW ISSUES
Defendants have moved to narrow the issues in this case on the eve of trial. Specifically, they have requested the Court to decline review of all aspects of the "cost/benefit" analysis performed by the defendant United States Army Corps of Engineers pursuant to the Water Resources Policy Act of 1965, 42 U.S.C. § 1962 Et seq. and the Corps' planning regulations, 33 C.F.R. pts. 290-295 (1978). Because the Court is persuaded that defendants' motion has a limited veracity, it grants the motion in part and dismisses counts I, II, IV, V, VI, VII and IX of plaintiffs' Amended Complaint (filed December 11, 1978). The Court's ruling, however, does not eliminate the issue of the propriety of defendants' cost/benefit analysis. By declining to dismiss count VIII, the Court holds that this analysis is subject to judicial review to determine its adequacy under the National Environmental Policy Act, § 101(b), 42 U.S.C. § 4331(b).
Generally, this Court's prior decisions have been limited to an examination of the adequacy of plaintiffs' claims under the National Environmental Policy Act. The Court has never discussed either the prima facie viability of the claims made under other statutes and regulations or the impact upon those claims of congressional authorization of Lock and Dam 26. A treatment of these issues is, of course, imperative before trial and the Court now turns its attention to that matter. The background of this litigation is fully set forth in the Court's three prior published opinions, 382 F. Supp. 610 (D.D.C. 1974) (granting a preliminary injunction and requiring congressional approval), 431 F. Supp. 755 (D.D.C. 1977) (dissolving the preliminary injunction without prejudice and upholding plaintiffs' right to seek review of the environmental impact statement), 459 F. Supp. 188 (D.D.C. 1978) (denying motions for summary judgment), and thus, need not be repeated here. One new fact, however, should be noted: on October 21, 1978, Congress accepted defendants' proposal and authorized the Secretary of the Army "to replace locks and dam 26, Mississippi River, Alton, Illinois, and Missouri, by constructing a new dam and a single, one-hundred-and-ten-foot by one-thousand-two-hundred-foot lock at a location approximately two miles downstream from the existing dam . . . ." Act of October 21, 1978, Pub.L.No. 95-502, § 102(a), 92 Stat. 1695.
In narrowing the scope of this case prior to trial, the Court relies upon fundamental differences between the National Environmental Policy Act ("NEPA") and the other statutes and regulations upon which plaintiffs' base their claims. In prior decisions, this Court has ruled that congressional approval of Lock and Dam 26 at Alton, Illinois, See Pub.L.No. 95-502, 92 Stat. 1693 (1978), did not preclude judicial review of the Environmental Impact Statement (EIS) submitted to Congress as part of the legislative proposal. Order of March 16, 1975. Indeed, after a careful review of the legislative record, the Court was drawn to the conclusion that Congress foresaw and intended the judicial scrutiny normally afforded EISs. Id., at 975. The Court's holding in its Order of March 16, 1979, was fully consistent with its prior conclusion that plaintiffs' possessed standing to enforce NEPA's requirement that an EIS accompany "proposals for legislation," 42 U.S.C. § 4332(2)(c). Atchison, Topeka and Santa Fe Railway v. Callaway, 431 F. Supp. 722, 727 (D.D.C. 1977). (This type of EIS is commonly called a "legislative EIS.") Both holdings reflect the Court's belief that judicial review of legislative EISs does not involve undue interference with the legislative process. The EIS requirement was intended by Congress not merely as a legislative aid, but also "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." Id. at 727 (emphasis added). Thus, plaintiffs' interest in ensuring defendants' compliance with NEPA supports judicial review of all aspects of defendants' EIS.
Defendants' assertion that their cost/benefit analysis is so complex as to preclude judicial review is simply without merit. In Calvert Cliffs' Coordinating Committee, Inc. v. United States Atomic Energy Commission, 146 U.S.App.D.C. 33, 39, 449 F.2d 1109 (1971), the court of appeals for this circuit indicated that EIS review may involve the "actual balance of costs and benefits" and that "(in) some instances environmental costs may outweigh economic and technical benefits and in other instances they may not." Id. 146 U.S.App.D.C. at 37, 449 F.2d at 1113 & 1115. Moreover, in County of Suffolk v. Secretary of Interior, 562 F.2d 1368, 1384 (2d Cir. 1977), Cert. denied, 434 U.S. 1064, 98 S. Ct. 1238, 55 L. Ed. 2d 764 (1978), the Second Circuit held that a cost-benefit analysis attached to an EIS pursuant to 40 C.F.R. § 1500.8(a)(8) (1978) was not immune from NEPA review. This Court has previously indicated its approval of the Second Circuit's approach in County of Suffolk, see Atchison, Topeka and Santa Fe Railway, v. Callaway, 459 F. Supp. 188, 192 (D.D.C. 1978) and in permitting cost/benefit review under NEPA the Court re-affirms that approval.
The Court's post-authorization review of cost/benefit analysis under NEPA, however, does not support the review of procedural or substantive errors under other statutes or regulations, when Congress intended those laws to serve a more limited purpose than NEPA. For example, the Eighth Circuit has held that a cost/benefit analysis prepared pursuant to 33 U.S.C. § 701a, the preamble to the Flood Control Act of 1936, was not reviewable to determine whether costs exceeded benefits, once Congress had approved the project proposed in the analysis. Environmental Defense Fund v. Froehlke, 473 F.2d 346, 356 (8th Cir. 1972). Evidently, the court construed section 701a as intended solely for the benefit of Congress and thus, once that body had exercised its judgment by accepting the proposal, judicial rejection of the underlying analysis would involve an unwarranted interference with the legislative process. Yet, although the court declined to review the cost/benefit analysis under the Flood Control Act of 1936, it pointed out that the "relief requested by the plaintiffs under § 701a is partially available under NEPA." 473 F.2d at 356. Because the district court would have to "determine whether the actual balance of costs and benefits struck by the agency" comported with the standards of NEPA, some examination of the analysis was appropriate. Id.; accord, Environmental Defense Fund v. Corps of Engineers, 492 F.2d 1123, 1134 (5th Cir. 1974). See also W. Rodgers, Handbook on Environmental Law § 7.5, at 746-747 (1977 ed.). In limiting the plaintiffs' cost/benefit claims to those under NEPA, this Court adopts a similar rationale. The judiciary should defer to congressional expertise in the weighing of costs and benefits, except where Congress has indicated that judicial scrutiny is appropriate. Plaintiffs rely upon only one statute which calls for the type of scrutiny which they seek NEPA. And under NEPA, the Court must examine the EIS in its entirety to determine its conformity with the legislative intent expressed in the statute. Plaintiffs' have not presented this Court with any evidence to support the conclusion that Congress intended the courts to engage in a similarly comprehensive examination to determine agency compliance with other laws and regulations after the legislature has studied and approved the proposals submitted in alleged conformance with those rules. In the face of this silence, the Court declines to intervene in this aspect of the legislative process. A review of the specific laws upon which plaintiffs rely fully supports this conclusion.
The Water Resources Planning Act of 1965, 79 Stat. 244, (the Act) creates an inter-agency Water Resources Council and directs the Council to establish "principles, standards, and procedures for . . . the formulation and evaluation of Federal water and related land resource projects." 42 U.S.C. § 1962a-2 (1976). In 1973, the Council issued its Principles and Standards for Planning Water and Related Land Resources at 38 Fed.Reg. 24778-24868; two years later, the Corps adopted regulations set forth at 33 C.F.R. pts. 290-295 (1978), which were designed to implement these principles. The Water Resources Planning Act, however, is clearly designed with a less sweeping purpose than NEPA. By calling for the evaluation of certain projects, its primary goal is to provide the President and Congress with guidance in their planning efforts in the water resources field. See H.R.Rep.No. 169, 89th Cong., 1st Sess. 3 & 5 (1965), U.S. Code Cong. & Admin. News 1965, p. 1921. Because these guidelines are intended for the primary benefit of Congress and the President, approval of a recommended project by these lawmakers vitiates whatever claims a party may possess regarding the Corps of Engineers compliance with the Act and regulations thereunder. In this case, Congress has itself weighed the costs and benefits
and, by authorizing construction, indicated its finding that the benefits exceeded costs, within the meaning of the Water Resources Planning Act. Once Congress has reached a decision on this matter, courts should decline to interfere with the legislative judgment. Cf. Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 527-528, 61 S. Ct. 1050, 85 L. Ed. 1487 (1941).
In contrast to NEPA, Congress did not envision continuing judicial review to determine compliance with the Act. See Order, at 975 (1979). Accordingly, the Court must dismiss Count V of plaintiffs' Amended Complaint because it calls for a substantive re-evaluation of the economic costs and benefits of the construction proposal to determine their adequacy under the Water Resources Planning Act. Count VII requires a similar substantive re-evaluation under 33 C.F.R. § 290.11(c), a regulation issued in accordance with the Water Resource Council's principles and standards; the Court must also dismiss that count. Counts I, IV and IX relate to the defendants' alleged failure to comply with various procedural requirements of the Act. All of the defects could have been or were in fact brought to the attention of Congress during the legislative process;
yet, Congress decided to accept the proposal despite the alleged non-compliance with the Water Resources Planning Act. The Court believes that congressional approval of the Lock and Dam 26 project is tantamount to a finding that these oversights either never occurred or were, for the purposes of the Act and its regulations, insignificant. It would certainly constitute an invasion of the legislative process for this Court to breathe new life into these allegations and then seek to determine their accuracy. Accordingly, counts I, IV and IX of the Amended Complaint shall be dismissed.
Plaintiffs' Amended Complaint contains two other counts which merit discussion. In count VI, plaintiffs complain that the Corps' inclusion of future delay charges as part of the transportation charges to traffic on the existing system violates section 7(a) of the Department of Transportation Act, 49 U.S.C. § 1656(a). This statute provides the Water Resources Council with authority to set up standards for the economic evaluation of water resource projects and also requires the Council to adhere to a statutory definition of the "primary direct navigation benefits" of such a project. Here again, the statutory and regulatory criteria are intended primarily for the benefit of the nation's lawmakers and they have already indicated their approval, under this statute, of the method used to evaluate the economic costs which plaintiffs seek to contest. It would be no less improper for the Court to re-scrutinize that decision than to re-examine the decisions previously discussed. Finally, count II of the Amended Complaint alleges non-compliance with both section 122 of the River and Harbors Act of 1970, Pub.L.No. 91-611, 84 Stat. 1823, and the regulations issued pursuant to that statute. The Court, however, is persuaded that this statute was also intended to aid Congress alone in the evaluation of a particular construction project.
Congress having made the decision to build, the Court will not interfere with that decision to assess defendants' compliance with laws designed solely to assist the legislature.
In sum, the Court holds that Congress intended NEPA to stand on a different footing from the other statutes upon which plaintiffs' rely. In contrast to other pre-authorization studies, legislative EISs are not designed solely for the benefit of lawmakers. Because Congress has declared that significant public interests are implicated in any decision affecting the environment, the Court must provide plaintiffs with an opportunity to challenge the adequacy under NEPA of the legislative EIS for Lock and Dam 26 notwithstanding congressional approval of the project.
In order to fully accomplish the objectives of NEPA, this review must include an examination of the defendants' cost/benefit analysis as sought by count VIII. Yet, even, though the Court must review this analysis to determine its adequacy under NEPA, it need not scrutinize the same studies to determine their compliance with the Water Resources Planning Act or other statutes and regulations designed to assist Congress in evaluating the merits of a proposed construction project. Plaintiffs have not introduced and the Court has not found a shred of evidence to support the assertion that, with respect to these statutes other than NEPA, Congress intended the extraordinary remedy of injunctive relief from a district court. Compliance with, and enforcement of, these statutes is thus best left to the legislature.
Because defendants' pre-trial motion has been limited to counts I through X of the Amended Complaint, nothing in this opinion affects plaintiffs' right to proceed under count XI, involving the need for, or lack of, post-authorization studies by the defendants.
An order in accordance with the foregoing shall be issued of even date herewith.