will again experience the same injury of which it now complains.
The second element of the mootness inquiry whether the issue now sought to be adjudicated will evade review is somewhat more problematic. Future injury of the type alleged here cannot be said to evade review because of the availability of the administrative protest procedures and of judicial review subsequent thereto. NHS nevertheless argues that the timing of events under the administrative scheme carries the potential for future prejudice, which counsels against dismissal of these actions as moot. As I interpret its argument, NHS fears that although the regulatory scheme delays the award of the construction contract during the pendency of the administrative process, the construction will usually be well underway by the time the merits of the protest are resolved by the court, and that a successful protestant will have only a pyrrhic victory because of the court's reluctance to interfere with or further delay the construction of a costly and environmentally beneficial project. Plaintiff contends that in all probability the only viable relief will be exactly that which it seeks here a declaration that the challenged action was contrary to the regulations and an injunction against future violations. Plaintiff concludes, therefore, that in the process of securing review of this new but similar injury, it will have been foreclosed from competing on an equal footing with more established suppliers for yet another project.
Although there is a degree of validity to plaintiff's complaint of future prejudice without effective judicial review, I am unpersuaded by its argument. The NHS scenario ignores the availability of preliminary injunction and the possibility of an expedited hearing on the merits. Of course, there is always the chance that concern for the expense attendant to any delay in the construction of a project may militate against the grant of preliminary relief. However, I am not prepared to assume that that interest will always hold sway should plaintiff make the requisite showing for preliminary injunction. I therefore conclude that the circumstances presented by the instant actions do not fall within the category of actions that will evade review.
Other policy considerations also dictate dismissal of these actions. Plaintiff suggests that the public interest will be advanced because a present adjudication will promote competition in future projects. Defendant, on the other hand, raises the specter of the sewage plant projects coming to a halt in this region because the administrator might defer ruling on protests involving specifications of the type at issue here (thereby delaying the construction contract awards) during the pendency of an appeal from my ruling, should I determine the question adversely to him. When these public interest concerns are balanced against each other, the future progress of sewage plant construction, which is the essential purpose of the legislation, must take precedence over the secondary goal of encouraging competition in the sewage treatment industry. Even if I were to weight these competing public interest concerns differently, the beneficial effect on competition would not, in my view, be a sufficiently compelling reason under the circumstances presented here to decide an otherwise moot question.
Attempting to overcome the administrator's lack-of-ripeness argument, plaintiff analogizes to the cases approving pre-enforcement review of agency action. See Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967). See generally K. Davis, Administrative Law of the Seventies 158-67 (1976); 13 C. Wright & A. Miller, Federal Practice and Procedure § 3532 (1975). NHS argues that the administrator's failure to comply with the statute and regulations, as evidenced in his approval of the Seaford and Rivanna specifications, has affected NHS' ability to compete on an equal footing with other suppliers, and that these actions seek to vindicate what NHS has termed its "present interest" in ensuring that it is not at a competitive disadvantage in the future.
Plaintiff's reliance on the "pre-enforcement review" cases is unavailing. As I have earlier stated, the relevant inquiry is the fitness of the issues for judicial review and the hardship to the parties of refusing to decide the questions presented. Plaintiff fails on both scores. Despite NHS' averral of a present interest in ensuring that the administrator abides by the requirements of the statute and the regulations, I must agree with the administrator that his decisions upholding the Rivanna and Seaford specifications have no present effect on NHS.
More importantly, however, I believe that the issues sought to be adjudicated do not easily lend themselves to declaratory or injunctive relief that will have the desired future utility. The relevant statute
do not speak in absolute terms. Rather, they appear to afford the grantee some leeway in formulating its specifications. Although the controversies presently before me are in several respects similar, their factual differences create considerable concern. These differences bespeak potentially wide-ranging variations in future specifications, and it appears, to me at least, an almost impossible task to anticipate and to fashion an order that will circumvent all the conceivable permutations. Consequently, because the issues presented by these complaints do not appear to be susceptible of an effective yet practical order, I can only conclude that the complaints are not ripe for review insofar as they seek to vindicate plaintiff's so-called "present interest" in obviating future prejudice.
The lack of a present impact, the difficulty of fashioning an effective prospective decree, and the availability of judicial review for future violations counsel dismissal of these actions. I will enter an appropriate order.