River, and of further expansion on the Upper Mississippi River, does not violate section 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C).
7. The defendants adequately studied barge traffic on the Illinois River as well as revenue loss to rail carriers; its treatment of this information is neither arbitrary, nor capricious, nor in violation of section 102(2)(C) or 101(b) of NEPA.
8. The defendants' failure to weigh system-wide maintenance costs in balancing costs against benefits was neither arbitrary, nor capricious, nor in violation of section 101(b) of NEPA.
9. The defendants' conclusion that benefits exceed costs for Lock and Dam 26 is neither arbitrary, nor capricious, nor in violation of section 101(b) of NEPA.
Having found that plaintiffs have prevailed on Count XI of their Amended Complaint, the Court must now determine the appropriate remedy. Plaintiffs seek an injunction as well as a declaratory judgment. In the interest of comity, the Court will enter a declaratory judgment in favor of plaintiffs, but will not provide injunctive relief.
This Court has previously examined the role of declaratory relief of the NEPA context. 431 F. Supp. 722, 730 (D.D.C.1977). In that decision, the Court explained that "declaratory relief alone is sufficient to enforce NEPA's EIS requirement" because "the Court can assume that if it determines that the final EIS is inadequate, then the defendants would correct the deficiencies in the EIS "without the coercion of a Court order.' " Id. (quoting Dunlop v. Bachowski, 421 U.S. 560, 575, 95 S. Ct. 1851, 44 L. Ed. 2d 377 (1975)). By the same analysis, the Court also concludes that defendants will comply with their own regulations once a violation has been found. In the past, defendants have accepted this Court's decrees and the results have certainly been ameliorative: the American public, through their representatives in Congress, have benefited from the opportunity to evaluate, modify, and approve construction of a new lock and dam at Alton, Illinois. This involvement certainly constitutes a victory for the environment. The Court presumes that defendants will continue to abide by a course of behavior which will further the ends of justice. The Court finds, nonetheless, that injunctive relief would not be appropriate in this instance.
The court of appeals for this circuit has recently explained, "The decision in each case whether the preservation of an agency's options upon reappraisal justifies the costs of delay rests, of course, in the sound discretion of the court." Realty Income Trust v. Eckerd, 183 U.S.App.D.C. 426, 436, 564 F.2d 447, 457 (D.C.Cir.1977). In making that decision, the Court must balance the parties' interests as well as the public interests; here, this balancing indicates that injunctive relief would be inappropriate. First, and more importantly, the public interest lies in the continued pre-construction planning of Lock and Dam 26. The Court accepts Public Law No. 95-502, enacted after more than a year of congressional debate, as the definitive statement on the public interest. Although the Corps' regulations may also serve an important public purpose, they should not be permitted to delay an Act of Congress when the legislative decision reflects a close consideration of the project at issue. Second, plaintiffs would certainly receive no benefit from further public meetings. They have already participated vigorously at the administrative and legislative levels and they have proffered no new ideas which they wish to tender at a public meeting. In light of the major significance of this project, the public too has already received an extensive opportunity to comment through and to their representatives in Congress.
Moreover, Congress devoted twelve days of hearings to the merits of the Lock and Dam 26 proposal and the Act, which was ultimately approved, eliminates the Corps' discretion in the project planning. As a result, a public meeting would hardly assist defendants in their planning options. It is well established that "equity should not require the doing of a "vain or useless thing' " Id. 183 U.S.App.D.C.at 438, 564 F.2d at 458. Finally, the delay involved in scheduling a meeting would certainly hinder the Corps' work and thereby, harm defendants. Thus, in light of Congress' clear expression of public interest and the lack of injury to plaintiffs, the Court declines to issue an injunction.
The Court's decision, however, does not preclude defendants from re-evaluating their own conduct. The Court's failure to provide the extraordinary relief of an injunctive writ does not mean that defendants might not, on their own, decide to comply with their regulations. Indeed, although the Court will not require a public meeting, it urges defendants to conduct their own evaluation of the situation and to hold a meeting if they find that one may be reasonably scheduled.
The Court today finds that the defendants have failed to comply with their own regulations. Compliance would involve, at the very least, an opportunity for the public to comment, after due notice, on GDM Supp. No. 2 as well as other aspects of the proposed project. The Court has also ruled on plaintiffs' claims regarding deficiencies in the FEIS, and found that none of their allegations has merit. Court approval of the FEIS, however, should not be construed as approval of the project proposal contained in the FEIS. In preparing the document and in selecting a recommended plan, the Corps has been required constantly to choose between alternatives; plaintiffs have contended those choices were arbitrary or capricious or in violation of NEPA. As a part of its review of plaintiffs' allegations, the Court has found that the Corps did not act arbitrarily or illegally. That finding is certainly not a judicial seal of approval for the choices which the Corps has made. Similarly, the Court's decision may not be construed as a finding that the alternatives which defendants have rejected are improper or unsound.
If defendants elect to hold a public meeting and to reconsider their final decision on Lock and Dam 26, they must receive public comments with an open mind. A public meeting after an agency has already made its decision would be an empty gesture. National Tour Brokers Association v. ICC, 192 U.S.App.D.C. 287, 591 F.2d 896 (D.C.Cir.1978). Because the Court's decision today does not involve an assessment of the wisdom of the Corps' conduct, its approval of the FEIS would not interfere with either defendant's objectivity or the public's right to comment.
An order in accordance with the foregoing will be issued of even date herewith.