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CITIZENS ALERT REG. THE ENVIRON. v. U.S.E.P.A.

March 15, 2003

CITIZENS ALERT REGARDING THE ENVIRONMENT, et al. Plaintiffs,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al. Defendants.



The opinion of the court was delivered by: HUVELLE, District Judge.

MEMORANDUM OPINION

This case is here on a request for preliminary injunction, which the Court has consolidated with a trial on the merits pursuant to FED. R. CIV. P. 65(a)(2). Plaintiffs, Citizens Alert Regarding the Environment ("CARE") and David Kurtz, brought this action to enjoin construction of a sewage pipeline currently being built in Lackawanna County, Pennsylvania. Plaintiffs contend that this project is a "major federal action" within the meaning of the National Environmental Protection Act ("NEPA"), 42 U.S.C. § 3332(C), and therefore cannot go forward until the Environmental Protection Agency ("EPA") prepares an environmental assessment ("EA") to determine whether a full-blown environmental impact statement ("EIS") is required. On March 21, 2003, the Court denied plaintiffs motion for a Temporary Restraining Order. The Court now denies the request for a preliminary injunction, and enters summary judgment for defendants on all counts.*fn1

[259 F. Supp.2d 13]

     

  BACKGROUND

  This case represents the latest act in a long-running drama. In 1989, the Pennsylvania Department of Environmental Protection ("PaDEP") issued an order requiring Jefferson Township in Lackawanna County, Pennsylvania to adopt a sewage collection plan to deal with its on-lot sewage problems. The Township has been attempting to satisfy this order ever since. The Township's first so-called Act 537 plan called for building small treatment plants within the Township, with the excess capacity to be treated at an existing local plant. This plan was significantly revised in 1995 when the Township first proposed the idea of building a sewage pipeline over the relatively undeveloped and ecologically sensitive ridgetop known as the Moosic Mountain Barrens. At the time, it seemed likely that an ambitious business park and federal prison complex would be built on Moosic Mountain. Thus, the Township proposed building a new treatment facility to handle its existing needs, as well as the expected growth from the business park. Also, to serve a small residential community situated near Moosic Mountain, a pipeline would be constructed to pump waste into the sewer system that was expected to be built for this new commercial development.

  This plan was eventually jettisoned, in large part because of a decision in December 1995 by the Honorable Gladys Kessler of this Court that the plan could not go forward until the federal entities involved complied with NEPA. See CARE Dep't of Justice, 1995 WL 748246 (D.D.C. Dec.8, 1995). Ultimately, the prison was built elsewhere, and there are no current plans to revive to the business park. The plan to build the Moosic Mountain sewer line, however, has gone forward undeterred. In 1999, a revised Act 537 plan was adopted, which abandoned the idea of building a treatment plant within the Township itself. Instead, the new proposal was to pump all of the Township's waste over Moosic Mountain through the pipeline, which would terminate on the other side of the Barrens, at an existing treatment facility operated by the Scranton Sewer Authority ("SSA").

  However, after possible environmental obstacles to this plan were highlighted in a legal challenge mounted by CARE before PaDEP, SSA pulled out of the project. As a result, the Township made another revision, keeping the basic plan in place, but altering the direction of the final 8,700 feet of the pipeline (the total length of which is over 7 miles) so that it would terminate not at SSA, but instead at a treatment plant owned by the Lackawanna River Basin Sewer Authority ("LRBSA"). (Aff. of Allan Mykalo, April 2, 2003 [4/2/03 Mykalo Aff.], ¶¶ 2-3.) This plan was announced by the Township on April 18, 2002, and officially adopted as the sixth revision to the Act 537 plan on August 12. PaDEP gave its final approval to the plan on September 27, and the next month granted the Township a permit authorizing construction on the Moosic Mountain pipeline to begin. (Id. at ¶ 6.) A State administrative appeal filed by CARE objecting to PaDEP's approval and seeking to block the project was rejected on February 19, 2003.

  Because it is crucial to this case, the funding for the pipeline project must be considered in some detail. The estimated total cost of the project is approximately $15 million. Of that, $11 million was provided by Pennsylvania Infrastructure Investment Authority ("PENNVEST"), through the State's Clean Water Act Revolving Fund program. (Penn. Opp., Ex.1 [Marchetti Aff.] ¶ 2.) Under this program, the EPA makes capitalization grants to the states to set up a fund for water pollution control. The states in turn disperse this

[259 F. Supp.2d 14]

      money for projects of their choosing, including for the construction of publically-owned treatment works. 33 U.S.C. § 1381. The Township made its initial request for a revolving fund loan in January 2000. (Id. at ¶ 5.) After conducting the required environmental review of the project,*fn2 PENNVEST granted final approval for and actually executed the loan on October 10, 2002. (Id. at ¶¶ 2, 6.) Of the funds provided by PENNVEST, 83% derive ultimately from EPA.

  EPA money is also connected with this project in another, more direct way. The agency's 1999 Appropriations Act allotted $1,305,000 for "wastewater, sewer overflow, and water system needs" of Jefferson Township. P.L. No. 105-276. An additional $470,500 was appropriated by the 2002 Appropriations Act. P.L. No. 107-73. EPA has discretion as to how it spends these appropriated funds so long as it stays within the general parameters set out by Congress. (Fed. Def.'s Mot. for Summ. J., Ex. 1 [Murphy Dec.] ¶ 13.) In addition, the money cannot be approved for a particular project until the agency determines that the project complies with all federal laws, including NEPA. (Id. at ¶ 8.) Jefferson Township submitted a grant application for the FY 1999 appropriation ($1,305,000) on November 12, 2001; the Township resubmitted that application on September 13, 2002, to include a request for the FY 2002 appropriation. Because this application was incomplete, EPA asked the Township to provide more information, which it did on November 19, 2002. (Id. at ¶¶ 5-7.) Having determined that Jefferson Township had submitted a complete application, EPA at last began its environmental review under the strictures laid down by NEPA.

  In connection with this review, EPA has requested additional data about the secondary impacts of the pipeline project. According to the agency, it will not finish its NEPA analysis until this information is provided, and will not award the grant until that analysis is successfully completed. (Id. at ¶¶ 8-9.) As such, EPA's position here is that an EA must be prepared before the appropriated funds may be awarded to the Township in connection with the Moosic Mountain pipeline. At present, therefore, the agency has not provided any money for the pipeline and has not committed itself to be involved in the project in any way. (Id. at ¶ 10.) Instead, EPA's role has thus far been limited to reviewing the grant application in order to determine whether to fund the pipeline with the appropriations. And while that money has been earmarked for the Township, it was not linked by Congress to this particular construction project. (Id. at ¶ 11.) Beginning in May 2002, the agency also sponsored a mediation effort between CARE and the Township in an attempt to help resolve some of the environmental concerns relating to the construction of a sewage pipeline through the Moosic Mountain Barrens. This ADR was terminated in February 2003, when plaintiffs filed the present suit. (Id. at ¶ 16.)

  In 2002, the Township turned to private sources in order to secure the remainder of the funding it needed to begin construction.*fn3

[259 F. Supp.2d 15]

      Indeed, under its October 2002 agreement with PENNVEST, the Township was obligated to come up with an equity contribution of $4,201,334. (Marchetti Aff. ¶ 3.) In that agreement, the Township had indicated that it would make this contribution by securing a loan from the PNC Bank. (Id. at ¶ 4.) And, on November 15, 2002, the Township closed on just such a loan (technically a Guaranteed Sewer Project Note) in the amount of $4,200,000. (Pl. Kurtz's Mot. for Summ. J., Ex. S.) The receipt of this money, along with that received from PENNVEST, allowed the Township to begin laying the pipeline immediately. The Township wasted little time doing so, commencing construction of the estimated two-year project on November 21, 2003.

  In response, plaintiffs filed this action on February 27, 2003. When it became apparent that construction would not be slowed absent judicial intervention, they sought a TRO and a preliminary injunction on March 17. After a hearing, the Court orally denied the request for a TRO on March 21, and ordered that the application for the preliminary injunction would be consolidated with a trial on the merits. See FED. R. CIV. P. 65(a)(2). The parties consented, and have now filed what are functionally cross-motions for summary judgment. A second hearing on this matter was held on April 8, 2003. Although the parties were given the opportunity to present live testimony, they each declined, electing instead to rely on the papers, as well as on the affidavits, declarations, and documentary evidence that have been submitted.

  ANALYSIS

 A. Whether Construction of the Pipeline Should be Enjoined Pending Federal NEPA Review

  NEPA requires that federal agencies take a "hard look" at the environmental consequences of all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C); Marsh v. Or. Natural Res. Council, 490 U.S. 360, 374, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989).*fn4 While the statute applies only to federal actions and imposes obligations only on federal entities, it is well-settled that "federal involvement in a non-federal project may be sufficient to federalize the project for purposes of NEPA." Macht v. Skinner, 916 F.2d 13, 18 (D.C. Cir. 1990); see also Envtl. Rights Coalition, Inc. v. Austin, 780 F. Supp. 584, 594 (S.D.Ind.1991) ("NEPA does not provide authority for constraining, restraining, or detaining non-federal entities pursuant to NEPA unless those entities are in a partnership or joint venture with or otherwise closely associated with a federal agency."); Don't Ruin Our Park v. Stone, 749 F. Supp. 1386, 1387-88 (M.D.Pa. 1990) (observing that a "non-federal entity may be enjoined along with the federal agency pending completion of an EIS" where the former "enters into a partnership or joint

[259 F. Supp.2d 16]

      venture with the federal government and becomes the recipient of federal funding"). As such, this case presents the Court with one central issue: whether the Moosic Mountain pipeline project has been sufficiently infused with federal involvement such that Jefferson Township Sewer Authority ("JTSA"), the obviously non-federal entity in charge of the project. should be enjoined from going forward with its construction "until all the federal approvals have been granted in accordance with NEPA." Macht, 916 F.2d at 18-19.*fn5

  For purposes of this analysis, it can be assumed that if EPA actually provides the $1.7 million appropriated by Congress for the Township, that funding decision would itself be a "major federal action." Cf. United States v. Southern Fla. Water Mgmt. Dist., 28 F.3d 1563, 1573 (11th Cir. 1994) (noting that a federal agency may undertake a major federal action in the form of funding a state or local project). Indeed, by taking the position that this money will not be committed for the pipeline in the absence of NEPA review, the agency has acted as if this were so. That said, the question of whether the actual granting of EPA money to the Township is subject to NEPA is analytically distinct from the question the Court faces here, which is whether, at present, the degree of federal involvement in the Moosic Mountain pipeline has been sufficient to convert that entire project into a major federal action that cannot go forward until a federal NEPA analysis is completed.*fn6 See Atlanta Coalition on the Transp. Crisis v. Atlanta Regional Comm'n, 599 F.2d 1333, 1347 & n. 18 (5th Cir. 1979) (observing that the determination of "whether a program is sufficiently `federal' to render it subject to NEPA" is a different questions than "whether a federal decision to make funds available is itself major federal action").

  Answering this question requires the Court to examine carefully the various means through which the Moosic Mountain pipeline may have become federalized. The first candidate is the grant that the Township has already received from Army Corps of Engineers ("the Corps"). See supra, note 3. This money, however, provides no basis for the Court to enjoin construction of the pipeline project, because, as plaintiffs have recognized, federal money provided for the preliminary stages of a project otherwise paid for with non-federal money is generally not subject to NEPA at all. Thus, the D.C. Circuit has held that a federal agency's decision to fund an aspect of a project — such as preliminary studies to determine whether the project should be undertaken — that, in and of itself, will have no impact on the environment, is not subject to NEPA. See Macht, 916 F.2d at 17. Other courts have concurred in ...


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