ELR Citation: ELR 20460
No(s). CV 87-P-0797-W (N.D. Ala. Dec 8, 1987)

The court holds that the Environmental Protection Agency's (EPA's) procedures for issuing Resource Conservation and Recovery Act (RCRA) permits are the functional equivalent of an environmental impact statement (EIS). The court first holds that it has subject matter jurisdiction to consider the need for an EIS under the National Environmental Policy Act (NEPA), since NEPA claims are routinely heard in federal district courts. Although challenges to final EPA action on RCRA permits are heard in courts of appeals, EPA action in this case is not yet final. Although courts are split over whether plaintiffs must exhaust their administrative remedies before invoking district court jurisdiction in such circumstances, exhaustion of administrative remedies is not required where it would be futile. That is the case here, since administrative appeals within EPA are limited to the standards set forth in RCRA itself, not whether an EIS is required.

The court next holds that EPA's RCRA procedures are the functional equivalent of an EIS. Functional equivalence is a judicially created doctrine that exempts EPA from NEPA requirements when its adherence to other substantive and procedural standards ensures full and adequate consideration of environmental issues, but this is the first case to consider the issue under RCRA. The court holds that RCRA provides an orderly and comprehensive mechanism to ensure that environmental factors are sufficiently taken into account.

Finally, the court holds that allegations that EPA and the Alabama Department of Environmental Management violated the due process rights of the plaintiffs are not ripe, since there is no final agency action. Even if the claims were ripe, they would be denied. The fact that the Alabama Department of Environmental Management would receive a permit fee is not a sufficiently close benefit to create constitutionally impermissible bias, and officials' statements prior to the public hearings are not enough to disqualify them. Also, while the plaintiffs are entitled to a hearing and notice of the permit application, they do not have a constitutional right to be provided with understandable information about the permit or to have their comments taken in any particular manner.

Counsel for Plaintiff
Gary A. Davis
707 S. Gay St., Knoxville TN 37902
(615) 637-0693

Counsel for Defendant
David Kaplan
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2308