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BUCKS CTY. BD. OF COMMRS. v. INTERSTATE ENERGY CO.

November 17, 1975

BUCKS COUNTY BOARD OF COMMISSIONERS and BUCKS COUNTY PLANNING COMMISSION and STOPS
v.
INTERSTATE ENERGY COMPANY and DELAWARE RIVER BASIN COMMISSION



The opinion of the court was delivered by: LUONGO

 This is an action brought under the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq. (NEPA), seeking to enjoin construction of an oil bearing pipeline. Plaintiffs are the Bucks County Board of Commissioners, the Bucks County Planning Commission and Stop the Oil Pipeline Society (STOPS), an unincorporated association. Defendants are Interstate Energy Company (Interstate), a public utility corporation doing business in Pennsylvania, and the Delaware River Basin Commission (Basin Commission). A brief history of the case follows:

 BACKGROUND

 Interstate proposes to construct 83 miles of 18 inch pipeline running north from the Marcus Hook terminal on the lower Delaware River, to the Martins Creek Generating Station of Pennsylvania Power and Light Company, near Easton, Pennsylvania, for the transportation of boiler fuel oil. Included in the project is a ten mile "lateral breakout," an eight inch pipeline running east from the main branch to the Gilbert Generating Station owned by Jersey Central Power and Light Company, in New Jersey. Pursuant to Pennsylvania law, *fn1" plans for the pipeline were submitted to the Pennsylvania Public Utility Commission (PUC) for review. On February 6, 1973, following 18 days of hearings in which the plaintiffs participated, PUC entered an order approving *fn2" the project. That order was appealed and on December 12, 1973, the Pennsylvania Commonwealth Court unanimously affirmed the PUC decision. *fn3"

 Basin Commission was created by the Delaware River Basin Compact in 1961 (P.L. 87-328). It is required by the Compact to formulate a comprehensive plan and to review against this plan any project which would substantially affect the water resources of the basin. *fn4" In addition, it is the federal agency designated to implement NEPA for all projects affecting the Delaware River Basin.

 On April 12, 1972, before the PUC hearings had commenced, Basin Commission advised Interstate that the proposed project "significantly affected the quality of the human environment" and that Basin Commission, pursuant to NEPA, was required to prepare an Environmental Impact Statement (EIS). *fn5" Approximately one year later (April 16, 1973), and after PUC approval had been granted to Interstate, Basin Commission participated in a public informational hearing sponsored by the residents of Springtown, Pennsylvania, concerning the project. Shortly after that public hearing, on April 18, 1973, Interstate filed its application for Basin Commission's approval of the pipeline. That application included an environmental report containing data designed to assist Basin Commission in making an environmental analysis of the project and to assist it in its preparation of the EIS. The report was made available by the Basin Commission to all interested parties, including plaintiffs.

 On June 28, 1973, after notice to all parties, Basin Commission held a public hearing in Montgomery County designed to "provide information to the public and to receive information from citizens that may be useful to the Commission in reviewing the impact of the proposal." *fn6" On January 14, 1974, Basin Commission, pursuant to § 102(2)(C) (42 U.S.C. § 4332(2)(C)), issued a Draft Environmental Impact Statement and forwarded copies to the plaintiffs and 25 federal agencies for comment. On February 26, 1974, again after published notice, there was a second public hearing at which oral and written comments were solicited from the plaintiffs and other participants to aid in revision of the Draft. *fn7"

 On June 28, 1974, Basin Commission released its final Environmental Impact Statement concluding that the transmission of low sulphur fuel oil for the generation of electric power would have "an overall beneficial effect on the quality of the human environment." (EIS p. C-1) Thereafter, plaintiffs filed objections to Interstate's application and requested an adversary hearing. Under the Basin Commission's Rules of Practice and Procedure *fn8" an objector is entitled to such a hearing only if the executive director deems the objections to be substantial. After review, the executive director denied the request for a hearing on the ground that no substantial objection had been made.

 On September 25, 1974, Basin Commission approved the pipeline for inclusion in its Comprehensive Plan for the Delaware River Basin. *fn9" On October 22, 1974, plaintiffs filed this complaint seeking to review Basin Commission's decision, seeking to enjoin construction of the pipeline, and asking for a declaration that the Basin Commission's regulations, policies, and procedures are unconstitutional and violative of plaintiffs' civil rights. Plaintiffs charge that Basin Commission (A) failed to observe NEPA standards for the preparation and review of the EIS; and (B) failed to hold public adversary hearings in violation of NEPA and Basin Commission's own procedures.

 From the outset, the defendants have maintained that this court lacks jurisdiction, and that this litigation should be disposed of on questions of law without a trial. Accordingly, defendants filed motions for summary judgment. Out of an abundance of caution, I refused to grant defendants' motions and instead ordered the matter to proceed to trial to afford plaintiffs the opportunity to present testimony as to any and all potential material issues of fact. The evidence presented at the trial added little of substance to the record which had already been created on the motions for summary judgment. To the extent that under Rule 52, F.R.C.P., findings of fact are required, they will be incorporated in the text of the opinion discussing the applicable law.

 DISCUSSION

 I. JURISDICTION

 Defendants have raised serious questions concerning jurisdiction and for this reason I will examine each of plaintiffs' jurisdictional claims.

 Plaintiffs' complaint cited the following statutes as jurisdictional bases for this action: the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202; the Mandamus Statute, 28 U.S.C. § 1361; the Administrative Procedure Act, 5 U.S.C. §§ 701-706; the Federal Question Statute, 28 U.S.C. § 1331; and the National Environmental Policy Act of 1969.

 Declaratory Judgment Act

 The Supreme Court has ruled in several decisions that the Declaratory Judgment Act "is not an independent source of federal jurisdiction" and cannot confer jurisdiction where it is otherwise lacking. Schilling v. Rogers, 363 U.S. 666, 677, 4 L. Ed. 2d 1478, 80 S. Ct. 1288 (1960). It is "procedural only" and does not enlarge or modify the "limited subject matter which alone Congress [has] authorized the District Courts to adjudicate . . .." Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-672, 94 L. Ed. 1194, 70 S. Ct. 876 (1950). Also see Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 81 L. Ed. 617, 57 S. Ct. 461 (1937). Standing alone, therefore, the Declaratory Judgment Act does not confer jurisdiction.

 Mandamus Statute

 Plaintiffs' claim of jurisdiction under the mandamus statute also fails since mandamus will issue only where an officer or employee of the federal government owes the plaintiffs a "legal duty which is a specific, plain ministerial act 'devoid of the exercise of judgment or discretion.'" (Citations omitted) Richardson v. United States, 465 F.2d 844, 849 (3d Cir. 1972), cert. denied, 410 U.S. 955, 35 L. Ed. 2d 688, 93 S. Ct. 1420 (1973). As the Third Circuit noted in Richardson, supra :

 
"An act is ministerial only when its performance is positively commanded and so plainly prescribed as to be free from doubt."

 It is clear that Interstate is not an officer or an employee of the United States and therefore does not come under this statute. It is equally clear that the duty which plaintiffs charge Basin Commission breached was neither ministerial nor clearly prescribed. Plaintiffs do not contend, for example, that Basin Commission failed to prepare an EIS, a task specifically required by NEPA, but rather that Basin Commission's conclusions as to the environmental impacts of the proposal are inconsistent with their own. Though NEPA (42 U.S.C. § 4332(B)) calls for all agencies of the government to "identify and develop methods and procedures . . . which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking . . .," it provides no defined standard of evaluation; the exact method of analysis used to accomplish this goal is left to the judgment of the particular agency. Basin Commission, drawing on its own expertise in the field of water resources, considered those competing environmental impacts it deemed significant and assigned them various degrees of importance in the decisionmaking process. Plaintiffs would have evaluated these factors differently and in effect ask that Basin Commission be ordered to comply with what the plaintiffs believe to be the "correct" standard. This is not the exercise of a ministerial act and is not, therefore, a proper subject for mandamus.

 Administrative Procedure Act

 The Court of Appeals for the Third Circuit has held that the Administrative Procedure Act does not confer independent jurisdiction upon the federal courts to review agency action. In Operating Engineers Local 542 v. NLRB, 328 F.2d 850, 854 (3d Cir.), cert. denied, 379 U.S. 826, 13 L. Ed. 2d 35, 85 S. Ct. 52 (1964), the Court held

 
"There is nothing in . . . the Act which extends the jurisdiction of either the district courts or the appellate courts to cases not otherwise within their competence. [Citations omitted] The Act is clearly remedial and not jurisdictional."

 Accord, Zimmerman v. United States Gov't, 422 F.2d 326 (3d Cir.), cert. denied, 399 U.S. 911, 26 L. Ed. 2d 565, 90 S. Ct. 2200 (1970); Getty Oil Co. v. Ruckelshaus, 467 F.2d 349 (3d Cir. 1972), cert. denied, 409 U.S. 1125, 35 L. Ed. 2d 256, 93 S. Ct. 937 (1973); Raitport v. National Bureau of Standards, 378 F. Supp. 380 (E.D. Pa. 1974).

 Federal Question

 Federal question jurisdiction under 28 U.S.C. § 1331 requires that there be at least $10,000 in controversy. The complaint alleged that several members of STOPS own property which is to be traversed by the pipeline, but there was no allegation as to the amount of damage to any individual plaintiff. That deficiency might have been cured by an appropriate amendment to the pleadings, and jurisdiction might have been conferred by such amendment. The matter, however, proceeded to trial with no attempt by plaintiffs to amend to allege the requisite jurisdictional amount (and indeed there was a total failure to prove any specific amount of damage to any individual member), consequently jurisdiction cannot be predicated upon 28 U.S.C. § 1331.

 National Environmental Policy Act

 Finally, plaintiffs contend that NEPA itself confers jurisdiction. Unlike the Labor Management Relations Act of 1947, 29 U.S.C. § 185(a), and the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)(3), for example, in which Congress specifically provided for federal jurisdiction without regard to the amount in controversy, NEPA contains no specific grant of jurisdiction. Nevertheless, some courts, without articulation of reasons, have assumed that NEPA furnishes an independent basis for jurisdiction in the federal courts. National Helium Corporation v. Morton, 486 F.2d 995 (10th Cir. 1973), cert. denied, 416 U.S. 993, 40 L. Ed. 2d 772, 94 S. Ct. 2405 (1974); City of North Miami, Florida v. Train, 377 F. Supp. 1264 (S.D. Fla. 1974); and Committee for Nuclear Responsibility v. Seaborg, 149 U.S. App. D.C. 380, 463 F.2d 783 (1971); Cf. Borough of Morrisville v. Delaware River Basin Commission, 382 F. Supp. 543 (E.D. Pa. 1974). One of those cases, Committee for Nuclear Responsibility v. Seaborg, 149 U.S. App. D.C. 380, 463 F.2d 783 (1971), has, in turn, been relied upon by other courts as authority that NEPA furnishes an independent basis for jurisdiction. See Students Challenging Regulatory Agency Procedures (S.C.R.A.P.) v. United States, 346 F. Supp. 189, 197 (D.C.D.C. 1972), reversed on other grounds, 412 U.S. 669, 37 L. Ed. 2d 254, 93 S. Ct. 2405 (1973) ...


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