The opinion of the court was delivered by: RICHEY
On August 6, 1974, a temporary restraining order was issued enjoining the defendants from letting bids for the construction of the proposed Lock and Dam 26. On September 6, 1974, the Court issued a preliminary injunction prohibiting the defendants from proceeding with the project until the defendants obtained the consent of Congress and cured the defects in the EIS. 382 F. Supp. 610 (D.D.C. 1974). In 1976, the Corps withdrew its original two-lock proposal, and instead sought Congressional authorization for a single-lock replacement facility with an estimated annual capacity significantly less than that recommended in the original proposal. On May 2, 1977, the Court dissolved the preliminary injunction without prejudice because no construction was eminent. 431 F. Supp. 722 (D.D.C. 1977). At the same time, the Court denied the motion to dismiss of the defendants and the defendant-intervenors, and held that NEPA requires the Corps of Engineers to submit an EIS to Congress with its proposal for authorizing legislation for the construction of a replacement Lock and Dam 26. Furthermore, the Court held that plaintiffs in these actions have a right of action and standing to challenge the adequacy of the EIS prepared by the defendants. Finally, the Court held that plaintiffs' claims for declaratory relief as to the adequacy of the EIS is justiciable. On October 4, 1978, the Court denied the parties' cross-motions for summary judgment, in part, and ordered that an evidentiary hearing be held to resolve disputed issues of material fact with respect to the issue of the adequacy of the Final EIS prepared by the Corps of Engineers to accompany its proposal of legislation authorizing the construction of Lock and Dam 26. 459 F. Supp. 188 (D.D.C. 1978). On October 21, 1978, President Carter approved Public Law 95-502, which authorized a single lock replacement for Lock and Dam 26. On December 11, 1978, the plaintiffs filed an amended complaint. Currently before the Court are the renewed motions of the federal defendants and the intervenor-defendants for summary judgment. The basis for the instant skirmish in the episodic saga of Lock and Dam 26 is disagreement over the effect of the enactment of Public Law 95-502. For the reasons that follow, the Court will deny the renewed motions for summary judgment.
The federal defendants accurately portray the essential effects of Public Law 95-502:
(1) It authorizes the construction of a replacement Lock and Dam 26 at Alton;
(2) It requires the development of a master plan for the Upper Mississippi River System following a comprehensive study of the effects of expansion of the navigational capacity beyond that to be afforded by the new lock;
(3) It prohibits further expansion of the navigational capacity of the Upper Mississippi System until the Congress approves a master plan for its management; and
(4) It establishes a user charge on the inland waterways in order to recover some of the public investment in those waterways.
The defendants and the defendant-intervenor, Association for the Improvement of the Mississippi River (hereinafter, "AIMR"), contend that summary judgment should now be granted because the issues in this case have been decisively dealt with by Congress. Since the plaintiffs are challenging the adequacy of a legislative EIS, which is primarily prepared for the benefit of Congress, once Congress has acted, it is contended that judicial enforcement of NEPA is improper. According to the defendant intervenor:
Defendant-intervenor AIMR's Memorandum on the Effect of Congressional Action on this Case, at 11 (November 13, 1978).
This approach illustrates AIMR's misperception of the Court's role in this controversy. The issue presented to this Court by the defendant's actions and the plaintiffs' suit is simply not as facile as the defendants apparently contend. Congress has enacted both Public Law 95-502 and NEPA. The former requires the Corps of Engineers to submit legislative EIS's to Congress. The plaintiffs have challenged the adequacy of the EIS submitted to Congress with respect to Public Law 95-502. Nowhere in Public Law 95-502 has Congress indicated that it wants Public Law 95-502 to be exempt from NEPA's exacting requirements. Congress has shown that it is fully capable of expressing its desire to exempt projects from the environmental laws. For example, the Trans-Alaska Pipeline Act, Public Law 93-153, provides that "actions . . . shall be taken without further action under the National Environmental Policy Act." Furthermore, in this case, rather than expressing any intention to exempt the project from NEPA, members of Congress made several statements indicating that they fully expected this Court to proceed with the determination of the adequacy of the EIS:
MR. SCHMITT. One, with respect to the court case of Judge Richey, that case has basically two components or two hurdles that need to be surmounted. One was the lack of authorization of locks and dam 26 and two was the adequacy of the environmental impact statement on locks and dam 26.
The bill at least clears the initial hurdle, that is, a lack of authorization of the facility. The Department of Transportation has in addition said that it will do all it can to expedite the decision on the second hurdle. So I ...