William J. Scott, Attorney General, State of Illinois, 160 North LaSalle Street, Chicago, Illinois, 60601; David C. Landgraf, Esquire, Chief, Northern Region, Environmental Control Division, 188 West Randolph Street, Suite 2315, Chicago, Illinois, 60601; Wallace L. Duncan, Esquire, Jon T. Brown, Esquire, 1700 Pennsylvania Avenue, N.W., Washington, D.C., 20006. Attorneys for Plaintiffs. Irwin L. Schroeder, Esquire, Department of Justice, Washington, D.C.; Marcus Rowden, Esquire, Solicitor, Atomic Energy Commission, Germantown, Maryland; Charles Bechhoefer, Esquire, Atomic Energy Commission, Germantown, Maryland. Attorneys for Defendants. Lester S. Hyman, Esquire, Richard P. Shlakman, Esquire, Attorney Lois J. Shiffer, 815 Connecticut Avenue, N.W., Washington, D.Č. 20006; Michael I. Miller, Esquire, Mark H. Virshbo, Esquire, One First National Plaza, Suite 4200, Chicago, Illinois, 60670. Attorneys for Defendant-Intervenors. UNITED STATES ATOMIC ENERGY COMMISSION, AЕС ASKS APPEAL OF COURT ORDER IN ILLINOIS The Atomic Energy Commission today announced it has requested the Department of Justice to appeal a preliminary injunction which restrains the Commission from issuing a partial operating license for a nuclear power plant in Illinois before completion of a full environmental review. The order was issued by a U. S. District Judge in Washington December 13 on a petition filed by the Izaak Walton League and others against the AEC and two utility companies. The order involves the Quad Cities Nuclear Power Station near Cordova, Illinois, owned by Commonwealth Edison Company and Iowa-Illinois Gas and Electric Company. The AEC had taken no action on the proposed limited license at the time the District Court acted. AEC regulations-adopted September 9-provide for issuance of interim licenses for test operation at levels up to 20 percent of design power, and permit the Commission itself to authorize operation at higher levels upon a finding that an emergency or other situation involving the public interest exists. Under the procedures, however, any such limited license is subject to an environmental review based upon the limited operation proposed. The limited operation of a nuclear power station permits the utility to begin testing the plant to assure the resolution of technical difficulties prior to full operation. The Commission said in a statement: "On September 9, the Commission adopted a set of regulations which were recognized as stringent by environmental organizations and industry. The regulations were endorsed by the Council on Environmental Quality and the Department of Justice, and they were designed to be as rigorous as possible consistent with the need to make the National Environmental Policy Act work. "The intent of these regulations is to reconcile the public interest in the need for increased generating capacity and full consideration of environmental factors. "A Court decision suggesting that the interim licensing provisions of these regulations are not acceptable raises grave questions as to the practical application of the National Environmental Policy Act to the nuclear power industry during this transitional period. "Because the Federal Power Commission has expressed concern over the supply of power in several areas of the nation next year, the AEC should have the opportunity to act on applications for nuclear power plants, where environmental implications of individual cases so allow." 50 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JEROME S. KALUR AND DONALD W. LARGE, PLAINTIFFS V. STANLEY R. RESOR, INDIVIDUALLY AND AS SECRETARY OF THE ARMY; WILLIAM D. RUCKELSHAUS, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY; AND LT. GENERAL FREDERICK J. CLARKE, INDIVIDUALLY AND AS CHIEF OF ENGINEERS, DEFENDANTS OPINION This is an action brought by plaintiffs for declaratory judgment and injunctive relief under the provisions of 28 U.S.C. Sections 2201, 2202. This jurisdiction of this Court is invoked under 28 U.S.C. Section 1331, and 5 U.S.C. Sections 702, 706. Plaintiffs Jerome S. Kalur and Donald Large are consistent users of the Grand River in Northeastern Ohio. They use the river for numerous conservational and recreational activities. This suit is brought by them on behalf of all persons and conservation groups that are similarly situated. Defendants Resor, Ruckelshaus, and Clark are duly appointed United States Government employees and are respectively, Secretary of the Army, Administrator of the Environmental Protective Agency, and Chief of Engineers for the Army Corps of Engineers. The suit requires the interpretation of The Rivers and Harbors Act of 1899, Section 13 (Refuse Act).1* This section prohibits the discharge of refuse into any navigable water, or tributary of any navigable water. The same section provides that the Secretary of the Army may permit the deposit of "refuse" in navigable waters.2 In 1971, pursuant to Executive Order Number 11574,3 the Corps of Engineers, Department of the Army, promulgated regulations covering the issuance of these permits. These regulations included the power to issue permits to dump "refuse" into navigable waters of the United States and into any tributary where its flow would reach a navigable water.* 4 Plaintiffs aver that the defendants have exceeded their statutory authority, and continue to do so, in issuing permits under the terms of these regulations. Plaintiffs claim that the defendants have absolutely no authority or right to order the issuance of permits to deposit "refuse" matter into non-navigable waterways of the United States and the Grand River of Ohio in particular. *Note. Footnotes not printed. In addition to the above, plaintiffs complaint alleges a further violation of environmental laws on the part of defendants. The National Environmental Policy Act states that all agencies of the federal government shall . . . "include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official" on the environmental impact of the proposed action, any adverse environmental effects which cannot be avoided should the proposal be implemeted, alternatives to the proposed action, the relationship between local short-term use of man's environment and the maintenance and enhancement of long-term productivity, and any irreversible and irretrievable commitments of resources that would be involved in the proposed action should it be implemented. This Act, the plaintiffs state, is subverted and violated by the regulations issued by the Corps of Army Engineers wherein they exempt the Corps from making such a detailed statement in all cases where the question is solely one of water quality. 7 The defendants deny that they have acted in excess of their statutory authority or in violation of the National Environmental Policy Act. There being no questions of fact in dispute the parties have briefed the issues of law. These issues are now before this Court for determination on cross motions for Summary Judgment. It is the finding of this Court that the defendants have acted in excess of their statutory authority and also, in violation of the National Environmental Policy Act. I Defendants initially challenge this Court's jurisdiction over the subject matter. Their claim is that plaintiffs lack standing to sue as required by Article III of the United States Constitution. Defendants enunciate a two step test to determine whether standing exists." First, plaintiff must allege that the actions of the defendants have caused him injury in fact. Second, that the interests plaintiffs seek to protect are arguably within the zone of interests to be protected by the statute or constitutional guarantee in question. An application of these tests supports the view that plaintiffs have standing to sue. This dispute is presented in an adversary proceeding. The plaintiffs are aggrieved parties. Their injuries stem from their aesthetic and environmental concerns for the Grand River, and other nonnavigable streams in the States of Ohio and Wisconsin.10 The gist of the question of standing is whether the party seeking relief has alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness will occur. This adversity sharpens the presentation of issues, and Courts rely upon this for the illumination of difficult questions. Standing exists when the plaintiff alleges that the challenged action has caused him injury in fact, economic or otherwise." Defendants, in their brief, recognized that federal courts have granted standing to persons or groups that have asserted the threat of destruction of public resources and amenities.12 Defendants aver that several decisions establish that in order to have standing in environmental suits the party must be directly affected by the governmental activity *Note. Footnotes not printed. involved. and that without a showing of a more direct interest, standing in the legal sense is not established.13 * These cases are distinguishable. There, the plaintiffs were suing based solely upon their desire to protect the public interest. The courts were unable to find any other interest or contact that those plaintiffs had with the subject matter of the suit.14 Here, taking the material allegations of the plaintiffs' complaint as true,is the plaintiffs have direct contacts with non-navigable waters; they are conservationists who regularly engage in canoeing and other forms of outdoor water recreational activities, and they are constant users of the Grand River and other non-navigable waters in Ohio and Wisconsin. The second test, that the interests plaintiffs seek to protect are arguably within the zone of interests to be protected, was directly approached by the Supreme Court in Association of Data Processing Service Organization v. Camp.16 The Court stated:" The "legal interest" test goes to the merits. The question of standing is different. It concerns, apart from the "case" or "controversy" test, the question whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question. Thus the Administrative Procedure Act grants standing to a person "aggrieved by agency acting within the meaning of a relevant statute. (5 U.S.C. Section 702 (1964) ed., Supp. IV) That interest, at times, may reflect "aesthetic, conser vational, and recreational" as well as economic values. Scenic Hudson Preservation Conf. 1. FPC, 354 F. 2d 608, 616; Office of Communication of United Church of Christ v. FPC, 123 U.S. App. D.C. 328, 334–340, 359 F. 2d 994, 1000–1006. (emphasis added) 17 Thus, defendants' two-pronged test is met. First, the injury alleged is to plaintiffs' environmental interest in the Grand River. Such interests were recognized as sufficient in Data Processing. Second, these interests are arguably within the zone of interests to be protected or regulated by the Refuse Act and the National Environmental Policy Act. Both of these statutes encompass the environmental interests in the waters of the United States that the plaintiffs possess. These plaintiffs, therefore, have standing to sue under the edicts of the Supreme Court and through the Administrative Procedure Act. Their environmental interests, and their personal contact with and use of the waters in question, are protected. II Defendants next allege the lack of a case or controversy. In deciding whether a case or controversy exists, one must look to the rigorous set of rules as to what constitutes a justifiable case or controversy as laid down by the Supreme Court. The judicial power of this Court extends to all cases and controversies as designated under our Constitution. Cases, however, are not to be decided in a vacuum. The judicial power may be applied only in those instances where questions arise in a case or controversy. A "controversy" in the constitutional sense must be one that is appropriate for judicial determination.18 *Note. Footnotes not printed. |