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Citizens Alert Regarding the Environment v. Leavitt

January 21, 2005

CITIZENS ALERT REGARDING THE ENVIRONMENT, ET AL. PLAINTIFFS,
v.
MIKE LEAVITT, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION

Presently before the Court is defendants' motion to dismiss plaintiffs' (collectively "CARE") complaint for lack of subject matter jurisdiction on the grounds that plaintiffs lack standing and their suit is moot. Because the defendant Agency has already disbursed all grant funds, and therefore no remedy is available to plaintiffs, defendants' motion is granted.

BACKGROUND

In this suit, plaintiffs seek injunctive and declaratory relief against defendants, who are the EPA Administrator, its regional Administrator (collectively "the Agency"), and the Chairman of the Jefferson Township Sewer Authority ("the Sewer Authority") in Lackawanna County, Pennsylvania. Plaintiffs identify purported flaws under the National Environmental Policy Act ("NEPA") in the Agency's Environmental Assessment and its Finding of No Significant Impact ("FONSI") concerning the sewer project recently built in Jefferson Township near the Moosic Mountain Barrens ("the project"). The chief problem they isolate is the Agency's purported "failure to consider the secondary and cumulative impacts that will be spurred by construction of a sewer pipeline, particularly in the undeveloped Moosic Mountain barrens." (Pls.' Opp'n at 7.) They contend such errors, if corrected, would necessitate inclusion of ameliorative conditions in a $1.7 million federal grant that supported the project. (Compl. ¶¶ 36-57; Pls.' Opp'n at 18.)

This sewer project has generated substantial litigation in this Court, as well as others. In 1995 the Honorable Gladys Kessler enjoined federal defendants from moving ahead with development plans related to it until they complied with NEPA. See CARE I, 1995 U.S. Dist. LEXIS 18619, at *16-36 (D.D.C. Dec. 8, 1995). Subsequently in 2003, plaintiffs' motions for a preliminary injunction and summary judgment to stop the project and its funding were denied, because, inter alia, no major federal action had yet occurred -- the Agency's EA review, which is a prerequisite to issuing a federal grant, see 42 U.S.C. 4332(2)(C), was ongoing -- and therefore there was nothing for this Court to enjoin pursuant to NEPA. See CARE II, 259 F. Supp. 2d 9, 20-22 (D.D.C. 2003). The Circuit Court affirmed this Court's reasoning, holding that "[u]ntil EPA completes its [NEPA] review and reaches a decision, there has been no final agency action within the meaning of 5 U.S.C. § 704 (2004) and the matter is not ripe for judicial review." CARE III, 102 Fed. Appx. 167, 168 (D.C. Cir. 2004).

Following the Circuit's decision, the Agency completed its EA of the sewer project and signed the final FONSI on August 6, 2004, a copy of which the Agency sent to plaintiffs, as well as others who had commented on the project. On August 25, the Agency executed a grant award offer to the Sewer Authority, which the latter accepted on September 7. The Agency, based on an intervening inspection showing that the project was between ninety-five and ninety-eight percent complete, disbursed ninety percent of the $1.7 million grant on September 27. Following notification that the project was entirely complete (absent a few minor punchlist items), the Agency authorized disbursal of the remaining ten percent on November 9. ( See Defs.' Mot. at 7 and sources cited therein.) At this juncture, the federal grant has been paid in full and the locallyadministered sewer project is complete and operational. ( See Defs.' Mot. Ex. 9.)

ANALYSIS

Defendants submit that this Court lacks subject matter jurisdiction over this suit for two reasons. First, they contend that the suit is moot because the project has been completed and the grant funds have been disbursed. Second, they argue that plaintiffs lack standing both because there is no causation between the federal grant and plaintiffs' purported injuries and because plaintiffs' injuries are not remediable through this suit.

Plaintiffs, however, object that the Court may not rule on defendants' Fed. R. Civ. P. 12(b)(1) motion because it relies on disputed issues of fact. (Pls.' Opp'n at 3-5.) A complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Although all reasonable inferences and all factual doubts must be resolved in favor of plaintiffs, Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1506 (D.C. Cir. 1984) (en banc), plaintiffs have not presented any disputed issues of fact relevant to the jurisdictional questions before the Court. The most they argue is that it is disputed whether the Agency "retains the ability, if directed by the Court, to redress the injury to plaintiffs notwithstanding disbursal of the grant and project completion." (Pls.' Opp'n at 5.) They object that, without discovery and production of the administrative record, the Court cannot resolve this purported issue of fact. ( Id. Plaintiffs' argument fails, for the issue they raise is a question of law. Production of the administrative record and discovery would not shed light on the question of whether the Agency, as a matter of law, may retroactively add conditions to or even rescind its grant to the Sewer Authority. Such authority either exists by virtue of statute, the existing terms of the grant, or some other legal source, or it is nonexistent. Neither production of a record detailing the agency's analysis of the project's environmental effects on the Moosic Mountains and other Scranton environs or any other type of discovery would clarify this legal question.

As defendants rightly note, this Court has an "an affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority." Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). (Defs.' Reply at 4.) In determining whether it has jurisdiction, the Court may, as it sees fit, look beyond the allegations of the complaint to extra-pleading material. See Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64 (1987); see also Scolaro v. D.C. Board of Elections and Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000) (citing Herbert v. Nat'l Academy of Sciences, 974 F.2d 192, 197 (D.C. Cir.1992)); Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir.1987). The Court therefore will exercise its discretion to examine the statutes governing the Agency and the terms of the grant itself in order to resolve the threshold jurisdictional questions raised by the defendants.

I. Mootness

For this Court to rule on plaintiffs' complaint, the suit must present a live case or controversy. "Even where litigation poses a live controversy when filed, the [mootness] doctrine requires a federal court to refrain from deciding it if 'events have so transpired that the decision will neither presently affect the parties' rights nor have a more-than-speculative chance of affecting them in the future." Clarke v. United States, 915 F.2d 699, 701 (D.C. Cir. 1990) (quoting Transwestern Pipeline Co. v. FERC, 897 F.2d 570, 575 (D.C. Cir. 1990)). Where intervening events preclude the Court from granting plaintiffs any effective relief, even if they were to prevail on their underlying claim, the Court must dismiss a suit as moot for want of subject matter jurisdiction. Church of Scientology v. United States, 506 U.S. 9, 11 (1992). See, e.g., Murphy v. Hunt, 455 U.S. 478, 481-82 (1982); Burlington N. R.R. Co. v. Surface Transp. Bd., 75 F.3d 685, 688 (D.C. Cir. 1996).

Plaintiffs' point is well taken that "any effective relief" encompasses acts that may not necessarily undo a fait accompli, but that may serve to mitigate it. See Neighbors of Cuddy Mountain v. Alexander, 303 F.3d 1059, 1065 (9th Cir. 2002). (Pls.' Opp'n at 6.) However, unlike the cases relied on by plaintiffs, this case is not amenable to pragmatic relief such as allowing more salmon to spawn in a subsequent year, Northwest Envtl. Def. Ctr. v. Gordon, 849 F.2d 1241, 1244-45 (9th Cir. 1988), creating replacement nesting areas for birds, Cantrell v. City of Long Beach, 241 F.3d 674, 678-79 (9th Cir. 2001), or undertaking a "direct species population intervention." Alexander, 303 F.3d at 1066. Unlike endangered species or major projects on federal lands, this local Pennsylvania sewer project is not automatically subject to NEPA. See CARE II, 259 F. Supp. 2d at 15-16. The only manner in which the Agency or this Court could have dictated the relief plaintiffs now seek under NEPA would have been for the Sewer Authority to decide to accept a grant subject to such conditions. See id. at 16; see also CARE III, 102 Fed. Appx. at 169. Thus, unlike the controversies confronting the Ninth Circuit in the above cases, the instant matter does not give a regulatory authority a later opportunity to correct a supposed previous error, for example, by issuing fishery regulations for a subsequent season that account for an earlier inadequacy. See Gordon, 849 F.2d at 1245.

Rather, this controversy is governed by principles of contract law, and the Sewer Authority was offered and accepted the grant on the basis of certain conditions, which this Court may not retroactively revisit. As a general matter, legislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions. The legitimacy of Congress' power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the "contract." There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it. Accordingly, if Congress intends to impose a condition on the grant of federal ...


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