APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civil Action No. 75-2129)
Seitz, Chief Judge, Hunter and Garth, Circuit Judges.
This litigation involves a challenge to an agency determination that an Environmental Impact Statement need not be prepared (negative EIS) in conjunction with the realignment of a major military installation. Certain plaintiffs appeal from an interlocutory order on Count I of their complaint denying declaratory and injunctive relief which would prevent further transfer of certain military and civilian personnel from Fort Monmouth, New Jersey to Fort Gordon, Georgia until an EIS is prepared.
In April 1973, the Department of Defense (DOD) announced that a major component of the Army Signal School at Fort Monmouth would be consolidated with the Southeastern Signal School at Fort Gordon where new facilities were being constructed. The realignment decision was the culmination of 10 years of consideration within the Army. Prior to the realignment there were approximately 13,185 employees at Fort Monmouth with a monthly payroll of about $13 million. The Signal School employed about 2,485 persons and served 2,200 military students; the permanent employees' monthly payroll was $2 million.
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.
Plaintiffs filed suit in December 1975. Immediately thereafter, DOD voluntarily deferred further transfer of civilian personnel pending disposition of the case, although removal of equipment and military personnel continued. Nevertheless, in March 1976 only 957 Signal School employees remained at Fort Monmouth, and it was estimated that the move would be completed during 1976.
Plaintiff, Harvey R. Shiffler, Jr., is a civilian employee currently employed by ECOM at Fort Monmouth, but formerly employed by the Signal School there. Plaintiff, National Federation of Federal Employees, Local No. 476 (Union) is a designated bargaining agent for certain civilian employees of the Signal School. Plaintiff intervener, James J. Howard, is a member of the United States Congress representing the Third District of New Jersey which includes the communities adjacent to Fort Monmouth. Defendants are the Secretary of Defense, the DOD, and commanders of divisions of DOD responsible for the realignment decision.
Section 102(2)(C), 42 U.S.C. § 4332(2)(C) (1976) of the National Environmental Policy Act (NEPA), requires that along with every recommendation or report on proposals for "major Federal actions significantly affecting the quality of the human environment" (MASAQHE) a detailed statement of the environmental impact of the proposed action and alternatives which might minimize the impact must be submitted. Plaintiffs contend that the transfer of large numbers of civilian and military personnel from Fort Monmouth will precipitate high unemployment, decay and blight in the surrounding communities and that an EIS detailing these consequences should have been prepared. DOD concedes that realignment of the Signal School component of Fort Monmouth is a major federal action, but denies that it is one that significantly affects the quality of the human environment.
The district court, on cross motions for summary judgment, held, in an unreported opinion, that the proper standard of review of the threshold agency decision of whether or not an EIS is required for a particular proposed action is whether the decision was arbitrary and capricious, amounting to an abuse of discretion. The court found that the negative EIS decision in conjunction with the Signal School consolidation proposal was not an abuse of discretion. Moreover, assuming arguendo that it was, the court held that the injunctive relief sought was barred by the doctrine of laches.
Our analysis must begin with an examination of the propriety of judicial resolution of the dispute. Subject matter jurisdiction would appear to attach by virtue of the presence of a federal question and the requisite jurisdictional amount. Questions have been raised, however, concerning whether the negative EIS decision is, in this factual context, one which is committed to agency discretion by law and hence nonreviewable,*fn1 and plaintiffs' standing to bring this suit.
In enacting NEPA, Congress recognized ". . . the profound impact of man's activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances [and further recognized] the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man . . . ." § 101(a), 42 U.S.C. § 4331(a) (1976). Congress declared it to be the continuing policy of the federal government to ". . . create and maintain conditions under which man and nature ...