does not allege jurisdiction based on this statute, and a subsequent brief cannot be used to cure this defect.
Plaintiffs cite the Administrative Procedure Act as an alternative basis of jurisdiction. It must be said at the outset that the only one of plaintiffs' claims which the APA would support is their NEPA claim, since none of the other statutes which the Commission allegedly violated set forth procedural requirements which the Commission must follow. At least one district Court in this circuit has held that the APA is a proper basis of jurisdiction for a NEPA claim. Pennsylvania Environmental Council Inc. v. Bartlett, 315 F. Supp. 238 (M.D. Pa. 1970) (Nealon, J.); Harrisburg Coalition Against Ruining Environment v. Volpe, 330 F. Supp. 918 (M.D. Pa. 1971) (Nealon, J.). However, the Third Circuit has generally not recognized the APA as a jurisdictional statute. Richardson v. U.S., 465 F.2d 844 (3rd Cir. 1972), (en banc) cert. den., 410 U.S. 955, 35 L. Ed. 2d 688, 93 S. Ct. 1420 (1973); Zimmerman v. U.S., 422 F.2d 326 (3rd Cir. 1970); cert. den. 399 U.S. 911, 26 L. Ed. 2d 565, 90 S. Ct. 2200, reh. den. 400 U.S. 855, 91 S. Ct. 26, 27 L. Ed. 2d 93 (1970). The Third Circuit's negative reading of the jurisdictional effect of the APA may have been overruled sub silencio by the Supreme Court case of Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971), where no other basis for federal jurisdiction except the APA was stated. See Sansom Committee v. Lynn, 366 F. Supp. 1271 (E.D. Pa. 1973). However, it is not necessary to resolve this question at this time since jurisdiction for plaintiffs' NEPA complaint can be properly founded upon the federal mandamus statute.
Jurisdiction under the mandamus statute, 28 U.S.C. § 1361, is proper where the administrative action sought to be compelled or restrained is essentially ministerial rather than discretionary. In other words, where the action is clearly compelled by law, rather than being compelled by broad, general statutory language which leaves the action within the agency's discretion, then such action can be mandamused. U.S. v. Walker, 409 F.2d 477 (9th Cir. 1969). The procedures surrounding the preparation of a NEPA environmental impact statement have been held to be agency action which can be mandamused by the courts under 28 U.S.C. § 1361. Sansom Committee v. Lynn,
366 F. Supp. 1271 (E.D. Pa. 1973); Harlem Valley Transportation Assn. v. Stafford, 360 F. Supp. 1057 (S.D.N.Y., 1973).
An agency is compelled to follow the NEPA procedures whenever it contemplates approving a "major federal action" which will "significantly affect the quality of the environment". 42 U.S.C. § 4332 (2) (c). The decision as to which projects fall within the statute is not left to the agency's discretion but is a question of law for the courts to decide. Scherr v. Volpe, 336 F. Supp. 882 (W.D. Wis. 1971). Therefore, plaintiffs have properly pled Section 1361 as a jurisdictional foundation for the NEPA claim. However, none of the other statutes which plaintiffs claim the defendant violated impose duties upon the defendant which are as clear and nondiscretionary as those imposed by NEPA, and therefore Section 1361 cannot support those claims. Those claims will be dismissed with leave to amend the complaint so as to secure any defects of pleading.
II. Sufficiency of Venue.
Defendant claims that venue in this district is improper under 28 U.S.C. § 1391. Although the home office of the Delaware River Basin Commission is in Trenton, N.J., the Commission has authority and control over water resources located in New York, New Jersey, Delaware and Pennsylvania. This authority and control is exercised through such actions as the one complained of here. It is inconceivable that the defendant is not doing business in those four states within the meaning of 28 U.S.C. § 1391(c).
III. Failure to State a Claim.
Defendant's principal challenge to the sufficiency of the complaint is that the complaint attacks a fee which has not yet been collected and that there is thus no case or controversy as required by Article III of the Constitution. But plaintiffs NEPA claim would state a valid cause of action even if the Commission had merely proposed the imposition of the charge, since that act requires the preparation of an environmental impact statement for "proposals for legislation and other major federal actions significantly affecting the quality of the human environment," 42 U.S.C. § 4332(C). In this case, as defendant admits, the Commission has already authorized the charge, and its implementation is merely awaiting the issuance of certain exemptions.
We have refrained from discussing whether plaintiffs' claims based on statutes other than NEPA state valid causes of action since these have been dismissed for lack of jurisdiction.
Defendant has also attacked the sufficiency of plaintiffs' cause of action by questioning the validity of plaintiffs' claim that they represent a class. The motion under Rule 12(b) to dismiss the complaint is not the proper vehicle for attacking the validity of plaintiffs' class action allegation. Such a challenge can properly be made when plaintiff moves for determination of class under Rule 45 of the Local Rules of Civil Procedure.
AND NOW, to wit, this 8th day of August, 1974, the motion of defendant pursuant to Rule 12(b) of the Federal Rules of Civil Procedure to dismiss that portion of plaintiffs' complaint which is based on the National Environmental Policy Act is hereby DENIED. Defendant's motion to dismiss all the other claims in plaintiffs' complaint is hereby GRANTED, and plaintiffs are granted leave to amend their complaint to allege a proper jurisdictional basis or bases for these claims.