The linchpin of the defendants' argument in support of dismissal on the ground of mootness is the effect of Congress' adoption of the Jackson Amendment. Given the general presumption against repeal by implication, the plaintiffs contend that, insofar as the defendants' NEPA obligations are concerned, the amendment provides a narrow exemption which addresses only the President's report to Congress. Reading the amendment in that fashion and noting the widely accepted policy favoring broad enforcement of NEPA's provisions, the plaintiffs argue that the amendment should not be interpreted as an immunization or erasure of prior NEPA violations. That is, the fact that Congress has suspended NEPA as to the President's impending report is not indicative of an intent to allow past infractions to go unremedied.
The defendants assert, and the Court agrees, that the amendment moots any claim as to prior NEPA violations if they indeed occurred and renders this case nonjusticiable.
To read the amendment in any other manner would thwart Congress' intent in rejecting the November 1982 CSB proposal as presented and imposing a particular decision-making scheme upon the Executive Branch in its selection of a new basing proposal for the MX.
Through the passage of legislation which governs the lawsuit, Congress can effectively moot a controversy notwithstanding its pendency before the courts. The Supreme Court concluded in Kremens v. Bartley, 431 U.S. 119, 126-27, 52 L. Ed. 2d 184, 97 S. Ct. 1709 (1977), for example, that the interim enactment of a Pennsylvania statute establishing due process safeguards precluding the involuntary commitment of teenagers to mental institutions, mooted claims of teenagers challenging the propriety of an involuntary commitment procedure for teenagers in that state. See also, Diffenderfer v. Central Baptist Church of Miami, Florida, Inc., 404 U.S. 412, 414-15, 30 L. Ed. 2d 567, 92 S. Ct. 574 (1972) (repeal of a Florida statute granting a church parking lot tax exemption which had been challenged under the Religion Clauses of the First Amendment).
In a group of cases challenging the President's impoundment of federal highway funds and the Transportation Secretary's proposed allocation of the funds in 1980, several circuit courts held that intervening congressional action rendered moot the states' challenges to the President's actions. State of Vermont v. Goldschmidt, 638 F.2d 482 (2d Cir. 1980); State of New Mexico v. Goldschmidt, 629 F.2d 665 (10th Cir. 1980); State of Arkansas v. Goldschmidt, 627 F.2d 839 (8th Cir. 1980). Although the litigants in those cases had obtained preliminary injunctive relief ordering release of the impounded highway funds, the injunctions were stayed pending appeal. When Congress then took action which specifically provided for the distribution of the disputed funds, the appeal courts accordingly directed that each case be dismissed as moot.
Plaintiffs seek to distinguish the Goldschmidt trilogy and limit the impact of the holdings to the particular set of facts presented. The funds in the Goldschmidt cases, as Congress noted, were not obligated at the time the new legislation was enacted since the injunctive relief had been stayed. In addressing the funds, Congress spoke directly to the Goldschmidt litigation. The plaintiffs argue that the legislation in the Goldschmidt cases was not applied retroactively to previously obligated funds and that the legislation here should be read similarly. The NEPA exemption provided by Congress, they assert, only addresses the President's report and therefore does not embrace the earlier NEPA violations.
Plaintiffs' claims to the contrary notwithstanding, the Goldschmidt cases provide considerable guidance. The Jackson Amendment's three critical provisions operate to (1) reject the President's November 1982 CSB proposal,
(2) establish the process and deadlines governing formulation of a new proposal, and (3) establish guidelines for assessing the environmental aspects of that decision. With regard to the Goldschmidt litigation, the Eighth Circuit noted:
Congress has left little room for interpretation. The new Act plainly does at least three things. (1) It disapproves the President's deferral message . . . . The issue of the propriety of the deferral under the Impoundment Control Act, though still of legal interest has therefore disappeared from this case for all practical purposes. (2) The Act sets a new obligational ceiling for FY 1980 . . . for federal aid highways and highway safety construction programs, almost as low as the . . . ceiling that would have been imposed by the deferral. And (3) the Act specifies a formula for allocation of remaining FY 1980 funds.
627 F.2d at 841. The subsequent congressional action eliminated any dispute as to the President's prior actions thus, relying upon Kremens v. Bartley, 431 U.S. at 128-29, the court concluded that the "new Act cuts the basis from under the controversy . . . making it purely academic and therefore moot." 627 F.2d at 842; accord State of Vermont v. Goldschmidt, 638 F.2d at 485; State of New Mexico v. Goldschmidt, 629 F.2d at 668-69. The same is true here.
Although courts are reluctant to find repeal by implication based upon congressional appropriations action, Tennessee Valley Authority v. Hill, 437 U.S. 153, 189-90, 57 L. Ed. 2d 117, 98 S. Ct. 2279 (1978), "when Congress desires to suspend or repeal a statute in force, 'there can be no doubt that . . . it could accomplish its purpose by an amendment to an appropriation bill, or otherwise.'" United States v. Will, 449 U.S. 200, 222, 66 L. Ed. 2d 392, 101 S. Ct. 471 (1980), quoting United States v. Dickerson, 310 U.S. 554, 555, 84 L. Ed. 1356, 60 S. Ct. 1034 (1940). Balancing these competing concerns requires inquiry into congressional intent to determine whether the two statutory provisions at issue are contradictory. United States v. Will, 449 U.S. at 222; Demby v. Schweiker, 217 U.S. App. D.C. 1, 671 F.2d 507, 509 (D.C.Cir. 1981).
To be sure, Congress can and does exempt projects from NEPA. Flint Ridge Development Co. v. Scenic Rivers Association of Oklahoma, 426 U.S. 776, 788, 49 L. Ed. 2d 205, 96 S. Ct. 2430 (1976); Izaak Walton League of American v. Marsh, 210 U.S. App. D.C. 233, 655 F.2d 346, 367-68 (D.C.Cir.), cert. denied sub nom. Atchison, Topeka and Santa Fe R.R., 454 U.S. 1092, 70 L. Ed. 2d 630, 102 S. Ct. 657 (1981).
Yet NEPA's "deliberate command" that federal agencies comply with the Act's requirements, Flint Ridge, 426 U.S. at 787, assures that courts will not regard congressional action as exemptive without strong supporting evidence. As the Court of Appeals for this Circuit has stated:
Given Congress' clearly expressed desire to ensure that all government actions are taken in accordance with NEPA, and its ability to expressly override the requirements of the Act . . . even when substantive legislation is involved, repeal by implication should be found only in the rarest of circumstances. Absent very strong evidence in the legislative history demonstrating a congressional desire to repeal NEPA, or a direct contradiction between that Act and the new legislation, claims under NEPA should be reviewed.
Izaak Walton League of America, 655 F.2d at 367 (citations omitted).
By rejecting the President's November 1982 CSB proposal but earmarking funds for the MX whose availability turns on congressional approval of a basing mode, Congress has set the stage for consideration anew. Tying access to the funds to approval of a basing mode, the Jackson Amendment clearly delineates the decision-making process to be incorporated in selecting an appropriate basing mode. Any basing selection which the Reagan Administration advances will necessarily be developed and then presented to Congress according to the amendment. Even if the Administration elects to resurrect CSB
the amendment specifically requires that the report reaffirm that position. Moreover, the sparse legislative history
does not support the plaintiffs, although it is fully consistent with the government's position that the Jackson Amendment completely proscribed the process by which the basing proposal would be constructed, presented, and reviewed. The clear import of that comprehensive legislative package is that Congress has refused all prior basing proposals and determined that it will not consider the matter until the President submits his report and indicates his preference therein. In any event, Congress has dictated the manner in which it is to receive and consider the new proposal as well as the composition of the proposal.
The plaintiffs ascribe a much narrower intent to Congress' adoption of the Jackson Amendment, arguing that it is forward-looking and emphasizing that it provides a narrow NEPA exemption which embraces only the President's impending report. They point out that CSB is a viable proposal since it may be resubmitted and they assert that Congress acted under the assumption that the defendants had already complied with NEPA. They further note that although Congress explicitly suspended NEPA as to the compilation of the President's report, it could have exempted prior proposals in equally explicit language yet it did not elect to do so. In support of their interpretation, plaintiffs quote Senator Stevens, Chairman of the Senate Appropriations Defense Subcommittee, who responded to an inquiry of Senator Gary Hart one day after the Senate adopted the Jackson Amendment. Senator Hart, a member of the Armed Services Committee, questioned whether the amendment would limit the application of NEPA to "actual deployment" and Senator Stevens responded:
I would say that the intent, as I understand it, was to make certain that the President's recommendation to Congress is not under the NEPA requirement, but we did not attempt to remove anything else but for that language.
128 Cong. Rec. S15166 (daily ed. December 16, 1982) (emphasis added).
Although the plaintiffs place considerable reliance upon the Stevens quote, the context of the colloquy and the clear effect of the Jackson Amendment are fatal to the plaintiffs' interpretation. Senator Stevens' comment addressed an inquiry into whether the Jackson Amendment's NEPA exemption was indeed limited to the President's report or whether it might extend to the subsequent decision-making process for selection of an actual basing site once a mode is approved for deployment. As the remarks clearly indicate, the Senators who spoke to the issue were concerned with limiting the NEPA exemption to the President's report on basing modes rather than subsequent consideration of actual siting. Moreover, the Senators' remarks demonstrate an understanding that the process whereby the President's report would be compiled and submitted would encompass and subsume all further consideration as to a basing mode:
Mr. HART . . . may I ask the . . . chairman of the Armed Services Committee whether . . . [the Jackson Amendment] in any way restricts or limits the effects of the so-called NEPA process . . . on actual deployment?