further argue that, even if these injuries are within NEPA's purview, the alleged injuries are too attenuated to provide a basis for standing. These challenges to OSG's ability to sue under NEPA lack merit.
1. OSG has Standing to Sue on Behalf of its Employees
OSG, on behalf of its employees, has standing to sue under NEPA. As explained above, OSG challenges the rulemaking because, in its view, enacting the rule without performing a full Environmental Impact Statement ("EIS") creates a risk of air and water pollution in the areas in which the company and its employees do business. See Complaint para. 36. This allegation of harm to the environment will suffice to bring an action under NEPA because the statute was intended to address issues of air and water pollution.
In Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 97 S. Ct. 2434, 53 L. Ed. 2d 383 (1977), the Supreme Court established a three-part test for organizational standing. Under this test, an organization may sue on behalf of its members if: (1) its members would otherwise have standing; (2) the interests to be protected are germane to the organization's purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members. Id. 97 S. Ct. at 2441. In this case, OSG's employees certainly have standing to challenge a rule which would make their working environment more polluted, and courts have accepted the corporate entity's ability to sue on this basis. See, e.g., Duke City Lumber Co. v. Butz, 382 F. Supp. 362, 374 (D.D.C. 1974), aff'd, 176 U.S. App. D.C. 218, 539 F.2d 220 (D.C.Cir. 1976), cert. denied sub nom., Duke City Lumber Co. v. Knebel, 429 U.S. 1039, 97 S. Ct. 737, 50 L. Ed. 2d 751 (1977) (lumber company plaintiffs "have alleged an injury in fact, namely, damage to the environment in which they work and upon which they depend for their livelihood and continued maintenance of the quality of their lives"); County of Josephine v. Watt, 539 F. Supp. 696 (N.D.Cal. 1982) (lumber company had sufficient injury to challenge rule due to occupational interest in lumbering areas); Cartwright Van Lines, Inc. v. United States, 400 F. Supp. 795 (W.D.Mo. 1975), aff'd, 423 U.S. 1083, 96 S. Ct. 873, 47 L. Ed. 2d 94 (1976) (trucking company's allegations that more circuitous trucking routes would injure environment in which they work was sufficient to sue under NEPA).
Moreover, the claim asserted and the relief requested do not require the presence of any individual employees. OSG does not seek monetary damages, compare Warth v. Seldin, 422 U.S. 490, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975) (disallowing organizational standing for monetary damages), and desires only to force the agency to conduct the analysis required by NEPA in order to prevent the enumerated environmental risks. See International Union, UAW v. Brock, 477 U.S. 274, 106 S. Ct. 2523, 91 L. Ed. 2d 228 (1986) (granting standing where organization tests validity of agency interpretation of applicable law).
Finally, the interests which OSG seeks to protect are "germane" to the organization's purpose. In Humane Soc. of the United States v. Hodel, 268 U.S. App. D.C. 165, 840 F.2d 45, 58 (D.C.Cir. 1988), the Court of Appeals explained that the germaneness requirement is "undemanding" and requires only "mere pertinence between litigation subject and organizational purpose." See also American Insurance Association v. Selby, 624 F. Supp. 267, 271 (D.D.C. 1985) ("an association's litigation interests must be truly unrelated to its organizational interests before a court will declare that those interests are not germane"). Here, OSG seeks to maintain a safe and healthy working environment in which to sail its ships and crews. While environmental concerns are not the guiding purpose of the corporate organization, the goal of preserving a safe working environment in the waterways is certainly pertinent, if not necessary, to OSG's successful operation.
2. OSG has Standing to Sue in its Own Behalf
OSG may also sue under NEPA in its own right -- independently of the interests of its employees -- in order to redress the injuries which may be sustained as a result of the alleged increase in air and water pollution. OSG has alleged that it will suffer injury to its vessels. In particular, OSG alleged that the increased risk of water pollution which would result from a major oil spill as well as the increased risk of a collision due to the permanent presence of the VLCCs in the trade could result in injuries such as fouling the hull and contaminating the ballast tanks. See Complaint at para. 36; Memorandum of Points and Authorities of Overseas Shipholding Group's Motion for Summary Judgment at 1. Provided that these injuries are reasonably foreseeable results of the 1987 Rule, see discussion, infra, at Section A.3., they qualify as environmental "effects" under the governing statute and regulations. See 40 C.F.R. § 1505.8 ("'Effects' includes . . . ecological, . . . aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative"). See, e.g., Port of Astoria v. Hodel, 595 F.2d 467 (9th Cir. 1979) (permitting business entity to sue to protect against economic losses sustained due to proposed rule).
3. OSG's Claims are not so Attenuated as to Deny Standing Under NEPA
Next, the federal defendants claim that OSG's alleged injuries "are too general, speculative, and remote to satisfy the basic constitutional requirements for standing." See Memorandum of Points and Authorities in Support of Federal Defendants' Motion to Dismiss the NEPA Claim at 5 (hereinafter, "Fed. Def'ts Motion to Dismiss").
This argument does not convince the Court, however, because it assumes the accuracy of the agency's own conclusions and projections without giving the plaintiff the opportunity to demonstrate flaws in the agency's analysis. The argument also misconstrues the NEPA standing jurisprudence.
The agency acknowledges the risk of an oil spill, see AR at 1399 ("the potential for oil spill is of the greatest concern"), and the possible reconfiguration of tanker traffic in the future as a result of the 1987 Rule. See AR at 1417 (projecting that "more VLCCs and other large tankers [will] replace, where permitted by navigation channel depths, smaller tankers"). The parties disagree as to whether the agency has drawn the correct conclusions from the data collected in the EA process. According to the plaintiff's analysis, the reconfiguration of tanker traffic may result in an increased risk of a major spill due to the presence of the VLCCs in certain sea lanes and the need for increased lightering. The plaintiff may well be incorrect. However, the plaintiff certainly has the right to challenge the agency's decision-making process in the first instance. Whether OSG will ultimately prevail on the merits of the challenge is a question independent of its right to challenge the agency's failure to perform a full EIS.
Forcing a plaintiff to demonstrate "proof" of the alleged harm at the summary judgment stage of a NEPA case defies the statute's overriding informational and investigative purposes.
NEPA's purpose of ensuring well-informed government decisions and stimulating public comment on agency actions effectively lowers the threshold for establishing injury to informational interests. This approach appears to based on the premise that NEPA creates a right to information on the environmental effects of governmental actions; any infringement of that right constitutes a constitutionally cognizable injury, without further inquiry into causation or redressability.