Beruflich Dokumente
Kultur Dokumente
2d 96
9 ERC 1839, 7 Envtl. L. Rep. 20,127
I. FACTS
At the time the realignment decision was reached, a negative EIS decision was
made based upon the assumption that an anticipated shift of Electronics
Command (ECOM) positions from Philadelphia together with an expected
influx of employees resulting from consolidation of the Defense Language
Institute (DLI) would offset the effect of the Signal School move and any
adverse environmental effects that might otherwise have been anticipated. The
DLI was not consolidated, however, and a significant number of the ECOM
positions were never filled. Moreover, three successive reductions in force
further reduced the number of jobs at the Fort. It was estimated that in June
1976, subsequent to the Signal School realignment, 10,165 positions would
remain with a monthly payroll of about $12.5 million.
II. REVIEWABILITY
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of the Congress along with the traditional factors of public interest particular to
each agency's mandate. Thus, before undertaking any MASAQHE, the agency
must determine whether its benefit is outweighed by negative environmental
implications requiring modifications to, or abandonment of the proposed action.
See, e. g., Calvert Cliffs' Coordinating Committee, Inc. v. A. E. C., 146
U.S.App.D.C. 33, 449 F.2d 1109, 1112-13 & n.5 (1971).
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Relying upon United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37
L.Ed.2d 254 (1973) (SCRAP I), DOD argues that NEPA was not intended to
repeal by implication the positive grant of discretion to the Secretary of
Defense over military command matters made by 10 U.S.C. 125. In SCRAP I,
the Court held that courts lack power to issue an injunction suspending railroad
rate increases on the basis of the ICC's failure to comply with the procedural
requirements of 102. The Court found that 49 U.S.C. 15(7) of the Interstate
Commerce Act, which deliberately eliminated judicial power to suspend
nonfinal rate increases, was not amended sub silentio by NEPA to permit
suspension of rate increases by injunction for noncompliance with NEPA.
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In exercising its power under 15(7), the ICC necessarily considers whether
suspending a rate increase could spell the financial death of the carrier. In this
context, issuance of an injunction would critically impair that exercise. The
statutory suspension period is an interim procedure which carefully
accommodates the various conflicting interests involved. 412 U.S. at 697, 93
S.Ct. 2405. A similar claim can hardly be made by the Secretary here when the
planning of the realignment has extended over a decade.
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III. STANDING
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In order to obtain judicial review of agency action, plaintiffs must satisfy two
requirements: (1) they must demonstrate the existence of a case or controversy
within article III, that is, that they have suffered injury in fact, economic or
otherwise as a result of agency action; and (2) they must be persons " . . .
adversely affected or aggrieved by agency action within the meaning of a
relevant statute," 5 U.S.C. 702 (1970), that is, the interests they seek to
protect must be arguably within the zone of interests to be protected by the act.
Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S.
150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); Barlow v. Collins, 397 U.S.
159, 164, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970).
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The gravamen of Shiffler's complaint is that the realignment will result in large
scale unemployment and population loss in the area surrounding Fort
Monmouth which will produce "severe environmental and socioeconomic
effects on plaintiffs' community and quality of life." (app. at 2). Plaintiff
Shiffler, as a resident of the area, satisfies the injury in fact requirement
because personally felt esthetic or conservational harm is sufficient to confer
article III standing. United States v. SCRAP, 412 U.S. 669, 687, 93 S.Ct. 2405,
37 L.Ed.2d 254 (1973) (SCRAP I ); Sierra Club v. Morton, 405 U.S. 727, 73435, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972).
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Since the original plaintiffs 2 satisfy the article III requirement of injury in fact,
we are presented with a case or controversy which is appropriate for judicial
resolution. DOD vigorously argues that plaintiffs are not arguably within the
zone of interests sought to be protected by NEPA and, therefore, lack standing
within 5 U.S.C. 702. Because we dispose of this case on the ground of laches,
see Part IV, infra, our judgment does not involve review of the agency action.
We therefore find it unnecessary to determine whether plaintiffs satisfy the
second element of standing. 3
IV. LACHES
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Seeking to have us reverse the district court's decision to deny injunctive relief
on the basis of laches, plaintiffs broadly assert that the doctrine of laches has no
place in public interest litigation of this kind. We think the public interest
claims which plaintiffs seek to vindicate, even if meritorious, may not
necessarily outweigh the competing public interest in permitting the timely
fruition of public programs irreversibly set in motion. As a general statement,
we hold that the decision of whether or not to enjoin a MASAQHE pending
compliance with NEPA is entrusted to the informed discretion of the district
court. It must consider whether there has been inexcusable delay in instituting
suit and prejudice to the public interest resulting therefrom while giving full
weight to the important congressional policies embodied in NEPA. Although
these criteria are similar to those which govern when litigants assert personal
rights, see Churma v. United States Steel Corp., 514 F.2d 589, 592 (3d Cir.
1975), they take on different meaning in this context.4
A. Inexcusable Delay.
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The equitable concept of estoppel inherent in the doctrine of laches, that one
who has sat on his rights to the prejudice of defendant should not be afforded
equitable relief, has little applicability in this context for two reasons. Because
plaintiffs seek vindication of congressional policies aimed at benefitting the
public generally rather than any particular individual, the public at large will
suffer when meritorious environmental challenges are foreclosed. Moreover,
the primary obligation for full compliance with NEPA rests with the agency,
and the agency which has failed to heed the congressional mandate is in an
awkward position to argue that tardiness should bar relief which in any event
should have been unnecessary. See generally Minnesota Public Interest
Research Group v. Butz, 498 F.2d 1314, 1324 (8th Cir. 1974) (in banc);
Environmental Defense Fund v. Tennessee Valley Authority, 468 F.2d 1164,
1182-83 (6th Cir. 1972). Similarly, it is appropriate to consider the extent to
which the delay in filing suit may have been attributable to the agency's failure
to make available information which it is required to publicize.
B. Prejudice.
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Unlike private interest litigation, when NEPA has been violated, considerations
of administrative inconvenience, cost or delay which may be presented in
answering a tardy suit are not appropriate considerations upon which to justify
withholding equitable relief. The central consideration is whether interruption
of the MASAQHE which is in progress would severely prejudice the public
interest which the agency action is serving; however, "(d)elay and concomitant
cost increases (in completing the project) would not alone justify
noncompliance with the Act." Conservation Society of Southern Vermont, Inc.
v. Brinegar, 508 F.2d 927, 937 (2d Cir. 1974) (Adams, J., sitting by
designation), vacated and remanded on other grounds sub nom. Coleman v.
Conservation Society of Southern Vermont, Inc., 423 U.S. 809, 96 S.Ct. 19, 46
L.Ed.2d 29 (1975) (mem.).
In the case sub judice, the district court found that suit was filed 21/2 years after
the public announcement of the realignment "at a time when the relocation was
between 85 to 90% completed." At that time, plaintiffs sought to enjoin
relocation of the remaining 10 to 15% pending preparation of an EIS. The court
calculated the cost to DOD of granting the injunction to be $6.5 million.
Moreover, the court found the injunction would disrupt the training of military
technicians for the Defense Satellite Communications System which, if
uncompensated, would leave the program "seriously undermanned, affecting
national defense." The court apparently considered whether an injunction
would likely produce environmental benefits, for it found that DOD, in the
course of its studies, "considered in great detail the impact of the realignment
and has attempted to compensate for the economic and social effect of the
Signal School movement."
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We are satisfied that the court made the findings necessary to a correct
evaluation and considered the appropriate criteria. The fact that environmental
factors already had been considered carefully made it unlikely that forcing full
procedural compliance after the project was nearly complete would affect the
shape of the relocation program and produce environmental benefits. At the
time of suit, there had been an irreversible commitment of secondary resources
and an injunction would seriously disrupt the School's mission and potentially
threaten national defense. It was not an abuse of discretion for the district court
to withhold equitable relief after carefully weighing these factors.
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In view of our disposition of the case, we need not consider the alternative basis
for the result reached in the district court's opinion.5
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It is ordered that so much of the order of the district court denying the
application of plaintiffs, Shiffler, National Federation of Federal Employees,
Local No. 476 and Howard for injunctive relief and granting defendants'
motion for summary judgment with respect to the above named plaintiffs is
hereby affirmed. Each party is to bear his own costs on appeal.
The court held that the negative EIS decision in conjunction with the Signal
School consolidation proposal was not an abuse of discretion. Since affirmance
on the ground of laches does not implicate our standard of review, we do not
find it necessary to discuss or to decide whether agency action in not filing an
EIS is to be reviewed by an "arbitrary and capricious" standard, e.g., Nucleus of
Chicago Homeowners Association v. Lynn, 524 F.2d 225, 229 (7th Cir. 1975),
or by a broader standard of reasonableness, e.g., Minnesota Public Interest
Research Group v. Butz, 498 F.2d 1314, 1319-20 (8th Cir. 1974) (in banc)