Petition for a Writ of Certiorari — Clinton Community Hospital Corp. v. Southern Maryland Medical Center

H

a

ee Soe Ca a eens cr ig eee l

PRN Soa nF ERE A ERs eee 2

er ee Sere reer peor 2

Statutory provisions involved ................ 2

DE OF OD Si ce a 5 A ie ae ee 3

Reasons for granting writ:

1. The decision below conflicts with the decision

of another Court of Appeals as to the proper

interpretation of the “zone of interest” part of the

Supreme Court’s standing test, and also raises significant

and recurring problems concerning efforts to obtain

I NE, hk heck, ak ene te es eae 7

2. The decision below conflicts with decisions of

other Federal Courts as to the issue of whether a Plaintiff

alleging economic injury can satisfy the “injury in fact”

part of the standing test under the National

Environmental Policy Act, 42 U.S.C. §4321,etseq. .... 10

3. The decision below is clearly wrong and

conflicts with the decision of another Court of Appeals as

to the proper interpretation of Section 102 (2) (C) of

Pee a cs Es sibs Ole bole ce oP a ee PAS 14

Conclusion .

Appendix (opinion and judgment of Court of Appeals and

SE C5 ere ON a7 ae App. 1

C. TATIONS

CASES:

1. | Association of Data Processing Services Organi-

zations, Inc. v. Camp, 397 U.S. 150 (1970) .

ae PRR Te ete oe bes C8 PSE eh A243

2. Barlow v. Collins, 397 U.S. 159 (1970) ....... 43a

ii

3. Businessmen Affected Severely By The Yearly

Action Plans, Inc. v. D.C. City Council, 339 F.

Fae CR CU URE ss kee ge ke He ee 15

4. Getty Oil Company (Eastern Operations) v.

Ruckelshaus, 342 F. Supp. 1006 (D. Dela. 1972) ..

BE Gas SPOS LS a oe PUA Tt es geen aa ar 11, 12, 14

5. Hanly v. Kleindeinst, 471 F. 2d 823 (2nd Cir. 1972) . 15

Hanly v. Mitchell, 460 F. 2d 640 (2nd Cir. 1972) .. 16

7. McLean Gardens Residents Association v. National

Capital Planning Commission, 2 ELR 20659

Rtas MEU ts a os a hoa ha a ce a wos 15

8. National Helium Corporation v. Morton, 326 F.

See 130 Rae B78 a ee 11, 12, 14

9. Pizitz v. Volpe 2 ELR 20378 (M.D. Ala. 1972) ..

Sad RAR OR ORS a0. wake 10, 12, 13, 14

10. Sierra Club v. Hickel, 433 F. 2d 24 (9th Cir. 1970) 7, 10

11. Sierra Club V. Morton, 405 U.S. 727 (1972) 10, 12, 13

12. Tierrasanta Community Council v. Richardson,

4 ELR 20809 (6.D. Calf. 1973)... ....... 16

13. U.S. v. Students Challenging Regulatory Agency,

Procedures (SCRAP), 412 U.S. 669 (1973)

14. Warm Springs Task Force v. Gribble, 417 U.S. 1301

(1974)

1S. Zlotnick v. Redevelopment Land Agency, 2ELR

Bae CPAs SPURS oe be 2 10, 12, 13, 14

MISCELLANEOUS

Davis, The Liberalized Law of Standing, 37 UNIV. OF

CHICAGO L. REV. 450 (1970).

Anderson, NEPA in the Courts, (Resources for the Future,

Inc. 1973)

In The |

Supreme Court of the . States

974

OCTOBER TERM, 1

No.

CLINTON COMMUNITY HOSPITAL C ) RATION,

Petitioner

Vv.

SOUTHERN MARYLAND MEDICAL\CENTER,

SECRETARY OF HEALTH, EDUCATION AND WELF ARE,

SECRETARY OF HOUSING AND URBAN ELOPMENT

Respondents

PETITION FOR A WRIT OF CERTIORARY TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

The Petitioner Clinton Community Hospital orporation

respectfully prays that a writ of certiorari issue te review the

judgment and opinion of the United States Court of ppeals for

the Fourth Circuit entered in this proceeding on F@bruary 10,

1975.

OPINION BELOW

The opinion of the Court of Appeals, not yet reported,

appears in the appendix hereto. The opinion of the District

Court of the United States for the District of aryland,

reported at 374 F. Supp. 450 (D. Md. 1974), also a in the

appendix hereto.

2

JURISDICTION

The judgment of the Court of Appeals for the Fourth

Circuit was entered on February 10, 1975, and this petition for

certiorari was filed within 90 days of that date. This Court’s

jurisdiction is invoked under 28 U.S.C. 1254 (1).

QUESTIONS PRESENTED

1. Whether Petitioner has standing to sue under the

National Environmental Policy Act, 42 U.S.C. 4321; the

Comprehensive Health Planning Act, 42 U.S.C. 246; The

National Housing Act, 12 U.S.C. 1715 z-7; the Noise Control

Act of 1972, 42 U.S.C. 4901-4917; and the Public Health

Service Act, 42 U.S.C. 291 d(a)(1).

2. Whether the National Environmental Policy Act

covers the situai.«:: where the major federal action is itself to be

placed in a hostile or unfavorable environment.

STATUTORY PROVISIONS INVOLVED

United States Code, Title 42, Chapter 55. National

Environmental Policy.

§ 4332. Cooperation of agencies; reports; availability of

information; recommendations; international and national

coordination of efforts

The Congress authorizes and directs that, to the

fullest extent possible:. . .(2) all agencies of the Federal

Government Shall—

. . (C) include in every recommendation or report on

proposals for legislation and other major Federal actions

significantly affecting the quality of the human

environment, a detailed statement by the responsible

official on—

(i) the environmental impact of the proposed action,

(ii) Any adverse environmental effects which cannot

be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of

man’s environment and the maintenance and

enhancement of long-term productivity, and

oe ea A RN,

3

(v) and irreversible and irretrievable commitments of

resources which would be involved in the proposed

action should it be implemented.

Prior to: making any detailed statement, the responsible

Federal official shall consult with and obtain the comments of

any Federal agency which has jurisdiction by law or special

expertise with respect to any environmental impact involved.

Copies of such statement and the comments and views of the

appropriate Federal, State, and local agencies which are

authorized to develop and enforce environmental standards,

shall be made available to the President, the Council on

Environmental Quality and to the public as provided by section

552 of Title 5 and shall accompany the proposal through the —

existing agency review processes.

STATEMENT OF THE CASE “

Two groups are competing to build one hospital to serve

the southern portion of Prince George’s County, Maryland.

Petitioner, Clinton Hospital, is an existing 33-bed hospital,

while Respondent, Southern Maryland Medical Center

(“SMMC”) is a loose aggregation of doctors proposing to build a

new hospital. :

The competition centers principally over possession of the

coveted “Certificate of Need.” Without the Certificate of Need,

no construction can take place because it is the touchstone that

opens up Federal largess in the form of financing aids such as

HUD mortgage insurance. Moreover, full reimbursement for

capital expenditures under medicaid, medicare and maternal

and child health programs will not be niade without the

Certificate of Need.

The Certificate of Need program has its origins in 42

U.S.C. 246, which enunciates a Federal program allocating

funds to the states to cover the costs of administering state

operated comprehensive health planning programs.

Unfortunately, Maryland, which has set up a

Comprehensive Health Planning Agency and several areawide

planning <gencies, has developed neither a state nor areawide

comprehensive health plan, although the statute has been in

effect since July 1, 1970.

In April, 1971, the areawide health planning group for

Prince George’s County, denominated the Health j

Advisory Committee for Prince George’s County (“HPAC”)

\

\

4

made a recommendation to the State Comprehensive Health

Planning Agency (“CHP”’) that the coveted Certificate of Need

be granted to the SMMC group and turned down Clinton

Hospital’s expansion plans.

Petitioner is an accredited proprietary hospital that has

been in existence since 1959. During 1969 and early 1970 it

made application to expand its facilities under statutory

authority which preceded a new Maryland statute which

became effective July 1, 1970.

In 1966, Congress had passed the Comprehensive Health

Planning and Public Health Act Amendment of 1966 which

_ encouraged States to develop new administrative machinery to

engage in comprehensive health planning. In response to the

federal invitation, Maryland adopted the appropriate enabling

legislation summoning into existence the Maryland

Comprehensive Health Planning Agency (CHP), which was the

State-wide planning agency. The Health Planning and Advisory

Committee of Prince Ceorge’s County (HPAC), which had been

organized in 1968, was specifically singled out by the Maryland

Statute (Section 559 (a-1) of Article 43 of the Annotated Code

of Maryland) as the area-wide health planning agency for that

county.

With the adoption of Maryland’s legislation and the

creation of CHP, Respondent Southern Maryland (SMMC)

applied for zoning to build a new two hundred bed hospital

approximately two miles from Petitioner’s facility.

The site chosen by SMMC consisted of approximately 26

acres located 17,000 feet due South of Runway 1-L of Andrews

Air Force Base, at a site where an aircraft had crashed in 1954,

killing a pregnant woman and two of her children. Her husband

received third degree burns and died seven days later. Their

house was also destroyed. The site is within the direct approach

path, as well as within the “transitional” zone, although it is

2000 feet off the center line of the published approach and

departure charts.

Although Petitioner opposed Respondent's request for a

zoning deviance in hearing held in November 1970,’ SMMC did

receive a special exception to build its proposed hospital at its

chosen site. The attorney representing SMMC in the zoning

hearings was also counsel for HPAC.

This occurred in the face of a document uncovered by

Petitioner prepared in May 1965 entitled, “Hospital Studies for

Prince George’s County, Md.”, prepared for the Board of

County Commissioners by The Maryland National Capital Park

Net atten we a

5

and Planning Commission (a Commission jointly funded by

Prince George’s and Montgomery Counties). This study

contained the following statement on Page 10 thereof:

“Another consideration (i.e. important specifically in the

Andrews Air Force Base Area) is the fact that a hospital

should not be located in airport approach zones.”

SMMC was nevertheless granted a zoning exception.

In the meanwhile, the application that Petitioner had

pending before the administrative agency (preceding the

organization of CHP) was forwarded to CHP and a request was

made of Petitioner to refile on forms that had been newly

designed. Petitioner complied, after which hearings were called

before the local area-wide agency, HPAC.

The result of the newly-created Maryland administrative

machinery was that HPAC made recommendations to CHP that

Petitioner’s proposal to expand its existing facility be denied

and that the SMMC group be permitted to expand. Several

weeks thereafter, CHP endorsed the recommendation of HPAC.

Petitioner subsequently appealed to the Board of Review, which

in turn, upheld the decision of CHP. Petitioner then filed

appeals and other actions in the Baltimore City Court.

Section 246 (aX2XC) of Title 42 compels the states to

incorporate into their “plans” — “environmental considerations

as they relate to public health.” Maryland’s environmental

protection act only applies to the State legislature and not to its

administrative agencies as is true of NEPA. One State agency,

Environmental Protection Services, did make a “cursory

review” of the SMMC application and advised CHP it found

nothing objectionable. No on-site inspection or measurements

were made, however, by that State agency.

During the administrative hearings before the Maryland

administrative machinery, Petitioner had prepared several

in-depth environmental studies clearly establishing, in

Petitioner’s opinion, that the SMMC site created potential

dangers to the future patients by reason of life safety from

- approaching and departing aircraft, noise, electronic

interference and other factors. Many of these findings were

incorporated into a denunciatory report prepared by th:

Maryland Chief of Licensing and Enforcement under date of

January 10, 1973. This report was issued, however, after

completion of all administrative proceedings. _,

6

SMMC had also made application to HEW for purposes of

obtaining a HUD mortgage guarantee. On October 24, 1972,

SMMC received from HEW a feasibility approval letter for

Respondent’s application for an FHA insured mortgage. No

inquiry whatsoever was made by HEW into environmental

considerations relative to the SMMC mortgage guarantee

proposal at this time. Subsequently, Petitioner was advised that

HEW had made the determination that an environmental impact

statement (EIS) would be required on the SMMC proposal and

elicited from Petitioner copies of all its environmental studies.

In December, 1973, instead of receiving an EIS, Petitioner

received from HEW a Marginal Environmental Impact

Statement (MEIS), with the explanation that HEW had

subsequently made the determination that an EIS would not

be required to be made on the SMMC proposal. There was

attached to the MEIS as exhibits, various documents that had

been supplied to HEW ostensibly by SMMC. There were no

references whatsoever to any of the environmental materials

developed by Petitioner, nor to the adverse report that had been

prepared by the Chief of Division of Licensing and Enforcement

with respect to the SMMC proposal, which in substance, had

found the SMMC site to be unsuitable both from the standpoint

of life safety and noise.

Petitioner has beer advised by HEW that it has made an

inquiry into the environmental aspects of the SMMC proposal.

At no time, however, has it seen any hard evidence sustaining

this contention. An examination of HEW’s MEIS and HUD’s

Environmental Work Sheet clearly indicates that Petitioner’s

environmental data, developed at great expense, has either been

ignored or deliberately overlooked. The result has been that

SMMC received a second feasibility letter in June, 1974.

On October 3, 1973, Petitioner filed its initial complaint

for Injunction against SMMC, seeking to enjoin the proposed

construction of SMMC’s new hospital. Jurisdiction was invoked

under provisions of the National Environmental Policy Act

(NEPA). After having been granted Leave to Amend its

Complaint, Petitioner joined HEW and HUD as additional

defendants. On April 16, 1974, the United States District Court

for the District of Maryland dismissed Petitioner’s Complaint. A

copy of the opinion in that case is reproduced in the Appendix

hereto.

Petitioner filed a timely appeal with the Fourth Circuit

Court of Appeals, appealing the District Court’s determination

7

that Petitioner did not have standing to invoke NEPA, and that

Petitioner did not state a cause of action upon which relief

could be granied under NEPA. Argument on this case was heard

on January 8, 1975, and on February 10, 1975 the Fourth

Circuit affirmed the District Court. The opinion in that case is

set forth in the Appendix hereto. The Fourth Circuit affirmed

the District Court’s holding that Petitioner did not have

standing under NEPA and that NEPA did not apply to the facts

of this case.

REASONS FOR GRANTING THE WRIT

1. THE DECISION BELOW CONFLICTS WITH THE DECISION OF

ANOTHER COURT OF APPEALS AS TO THE PROPER

INTERPRETATION OF THE “ZONE OF INTERESTS” PART OF THE

STANDING TEST, AND ALSO RAISES SIGNIFICANT AND

RECURRING PROBLEMS CONCERNING EFFORTS TO OBTAIN

STANDING TO SUE.

The Supreme Court, in the companion cases of Association

of Data Processing Services Organizations, Inc. v. Camp, 397

U.S. 150. 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970) and Barlow v.

Collins, 397 U.S. 159, 90 S. Ct. 832, 25 L. Ed. 2d 192 (1970)

established a two-prong test for standing: y

(1) “Injury in fact, economic or otherwise

(2) “Whether the interest sought to be protected by the

complainant is arguably within the zone of interests to be

protected or regulated by the statute or constitutional

guarantee in question (397 US at 153).”

Each of the lower courts in the instant case ruled that,

since petitioner’s “injury in fact’” was economic, it did not have

standing to sue under NEPA because this injury was not within

the “zone of interest” to be protected or regulated by that

statute.

Although nearly every court after Data Processing and

Barlow has recognized the existence of the two-prong test for

standing, the vague nature of the “zone of interest” test has

resulted in courts reaching inconsistent results because they

have interpreted this test with varying degrees of strictness.

Moreover, at least one Court of Appeals has specifically

held that this test is not to be used in inquiring into a Plaintiff's

standing to sue. Sierra Club v Hickel 433 F. 2d 24 (9th Cir.

1970) examined the two-prong test of Data Processing and

8

Barlow, and after dealing with the “injury in fact’’ aspect of the

test, held that this test alone was sufficient to confer standing

on plaintiffs. With regard to the “zone of interest’ test, this

court said:

“

The significance of the language is not entirely clear. It

is likewise not made clear in a companion case decided the

same day and involving the same question. We submit that

it does not establish a test separate and apart from or in

addition to the test which the Court first looked to in

Camp.

.... (The injury in fact test)

*“* This is the test which can solve most if not all of the

decided cases and also fit the standard of the

Administrative Procedure Act.”

In the very cases which established a two-prong standing

test, Justices Brennan and White, in an opinion which concurred

in the result but dissented in the reasoning, strenuously

objected to the institution of the “zone of interest” test. Some

of the comments made by the concurring opinion indicate the

weakness of this test:

“IT submit that in making such examination of statutory

materials an element in the determination cf standing the

Court not only performs a useless and unnecessary exercise

but also encourages badly reasoned decisions, which may

well deny justice in this complex field. When agency action

is challenged, standing, reviewability, and the merits pose

discrete and often complicated issues which can best be

resolved by recognizing and treating them as such.

“

Today’s decisions, however, will only compound

present confusion and breed even more litigation over

standing. In the first place, the Court’s formulation of its

non-constitutional element of standing is obscure. What

precisely must a plaintiff do to establish that the ‘interest

sought to be protected. . .is arguably within the zone of

interest to be protected or regulated by the statute’? How

specific a ‘interest’ must be advanced? Will a broad,

general claim, such as comypetitive interest suffice, or must

he identify a specifically legally protected interest? When,

too, is his interest ‘arguably’ within the appropriate ‘zone’?

Poy ee ee ee es ee

9

Does a mere allegation that it falls there suffice? If

more than an allegation is required, is the plaintiff required

to argue the merits? And what is the distinction between

a ‘protected’ and a ‘regulated’ interest? _Is it possible that

a plaintiff may challenge agency action under a statute

that unquestionably regulates the interest at stake, but

that expressly excludes the Plaintiff's class from among

statutory beneficiaries? ...

“

The Court’s approach does too little to guard against

the possibility that judges will use standing to slam the

courthouse door against plaintiffs who are entitled to full

consideration of their claims on the merits (at 176-178).”

Another critic of this test is Professor Davis, who seriously

questioned the interpretation which some courts have given this

test and argues that the Supreme Court never intended the

“zone of interest” test to have a life of its own. See Davis, The

Liberalized Law of Standing, 37UNIV. OF CHICAGO L.

REV. (1970).

Davis argues convincingly that:

(1) The test is analytically faulty because by requiring

Plaintiff's interest to arguably “be protected” or “be

regulated”, the Court ignores the intecests of Plaintiffs who

deserve common-law protection of their interests but who are

not being protected or in fact reguleted by the statute or

constitutional guarantee in question.

(2) The test is contrary to much case law that the court

could not have intended to overrule, such as cases which have

granted standing without any apparent interest which was being

protected by the statute in question.

(3) The test is unduly cumbersome, inconvenient, and

artificial because to ascertain whether a asserted interest is to

be protected or regulated by the statute an inquiry into the

legislative history is required and this .eads to decisions based

upon fortuitous remarks and statements without authority

made during the course of hearings and debates on legislation.

(4) The test is contrary to the cmgressional intent of the

Administrative Procedure Act because the right of review under

that act is conferred upon “‘any persons adversely affected in

fact by agency action”.

Professor Davis agrees with Justces Brennan and White

that “injury in fact” should be the only test for standing.

10

When the Sierra Club v. Hickel came to the Supreme Court

as Sierra Club v. Morton, 405 US 727, 92 S. Ct. 1361, 31 L. Ed.

2d 636 (1972) the standing issue was decided upon other

grounds and the court expressly refused to consider the “zone

of interest” controversy raised by the Hickel case. The Court

said in Footnote 5:

* In deciding this case we do not reach any questions

concerning the meaning of the ‘zone of interests’ tests or

its possible application to the facts here presented.”

Again, in a more recent case involving standing of Plaintiffs

in an environmental law case, U.S. v. Students Challenging

Regulatory Agency Procedures (SCRAP), 412 US 669 (1973),

the Court refused to deal with the “zone of interest”

controversy. In Footnote 13, the Court said:

“

As in Sierra Club, it is unnecessary to reach any

question concerning the scope of the ‘zone of interest’ test

or its application to this case.”

Obviously, the time has come for this Court to treat the

“zone of interest” aspect of the standing problem definitively.

These conflicts and uncertainties justify the grant of

certiorari to review the judgment below.

2. THE DECISION BELOW CONFLICTS WITH DECISIONS OF

OTHER FEDERAL COURTS AS TO THE ISSUE OF WHETHER A

PLAINTIFF ALLEGING ECONOMIC INJURY CAN SATISFY THE

“INJURY IN FACT” PART OF THE STANDING TEST UNDER THE

NATIONAL ENVIRONMENTAL POLICY ACT, 42 USC § 4321, ET.

SEQ.

The Fourth Circuit’s opinion in this case also raises

important statutory and policy considerations which arise from

bona fide efforts to invoke the National Environmental Policy

Act. The unanswered question is: Does a Paintiff have standing

to sue under NEPA by alleging economic injury?

The Fourth Circuit, in reviewing Plaintiff's standing to sue

under NEPA, followed the two cases of Zlotnick ¥y.

Redevelopment Land Agency, 2 Environmental Law Reporter

(ELR) 20235 (D.C.D.C. 1972) and Pizitz, Inc. v. Volpe, 2 ELR

20378 (M.D. Ala. 1972) both of which had stated that Plaintiffs

lacked standing to sue under NEPA because their only injury

was economic and this interest was clearly not within the “zone

11

of interest” to be protected or regulated by NEPA.

However, two other District Court cases have held directly

opposite views:

(1) National Helium Corporation V. Morton, 326 F.

Supp. 151 (D. Kansas 1971) aff, 455 F. 2d 650 (10th Cir.

1971) expressly held that a corporate Plaintiff had standing to

invoke NEPA, despite the fact that its only ascertainable injury

was economic:

“ It may seem passing strange to see Plaintiffs, the

offspring of corporate giants of the oil and gas industry,

garbing themselves in the status of private Attorneys

General for the public interest, yet this Court perceives no

valid reason why they cannot assert this rule as protector

of the public interest, along with their own. The Court

finds that Plaintiffs do have requisite standing to maintain

this action (326 F. Supp. at 157).”

(2) Getty Oil Company (Eastern Operations) ¥.

Ruckelshaus, 342 F. Supp. 1006 (D. Dela. 1972) rev'd on other

grounds, 467 F. 2d 349 (3rd Cir. 1972). The facts of this case

were that the government had ruled that fuel was required to

have less than 3.5 per cent sulfur content, and Plaintiffs Getty

and Phillips Petroleum sued on the grounds that such

regulations would cost Plaintiffs ten thousand dollars per day in

the more expensive sulfur-free fuel.

Plaintiffs’ standing was attacked and the Court held that

Getty’s high electricity costs resulting from Clean Air

Regulations provided it with “position and economic stake”

under the Clean Air Act and that its allegation of “inefficient

utilization of natural resources” might bring its claim within the

ambit of NEPA:

“

I have concluded that Plaintiff does have standing to

bring this action. . (342 F. Supp. at 1013).”

These conflicting lines of decision were recognized by

Frederick Anderson in his book, NEPA in the Courts, published

by Resources for the Future, Inc. (1973) in which he tried to

reconcile these cases. Anderson states (at 39) that the National

Helium case was decided “well before the spate of recent

actions aimed at EPA” and he notes that some courts have

become suspicious when private individuals or corporations

have raised NEPA to obfuscate and delay Federal projects

12

aimed at actually protecting or improving the environment.

However, this distinction does not adequately reconcile the

differences between the Getty case and the Zlotnick and Pizitz

cases since the proposed regulations calling for low sulfur

content in the Getty case would appear to be federal action

aimed at protecting or improving the environment; nor does it

explain the instant case since this is not a situation where a

private plaintiff seeks to delay or obfuscate a federal project

aimed at protecting the applicable environment. Thus, the

conflict of this case with that of Getty and National Helium is

more complete. Petitioner respectfully submits that the time

has come for the Court to resolve these differing interpretations

of standing to sue under NEPA.

It is not enti-ely clear what the basis is for the Zlotnick

and Pizitz cases’ reasoning that a Plaintiff alleging economic

injury did not meet the Supreme Court’s standing test.

It was clear from Data Processing and Barlow that

economic injury would satisfy the “injury in fact” test:

“

The first question is whether plaintiff alleges whether

the challenged action has caused him injury in fact,

economic or otherwise. There can be no doubt that

petitioners have satisfied this test (397 US at 152).”

The Zlotnick and Pizitz cases apparently draw their

conclusions from reading a negative inference into the holding

in the Supreme Court’s landmark case involving standing in the

environmerital law area, Sierra Club v. Morton, 405 U.S. 727,

92 S. Ct. 1361, 31 L. Ed. 636 (1972.

In this case, Plaintiff's injury was not the traditional

economic harm, but was solely aesthetic and conservational

injury caused by proposed development of a wilderness area.

The Court held, just as it had hinted in dicta in Data Processing,

that injury of a non-economic nature could be sufficient tv

meet the “injury in fact” test.

Apparently the Zlotnick and Pizitz Courts have taken the

position that the Sierra Club case was restricting allowable

injury which could satisfy the “injury in fact” test under NEPA,

to aesthetic, conservational, and recreational injuries.

Petitioner submits that nowhere in the Sierra Club opinion

is there any indication that the Supreme Court was limiting the

“injury in fact” test to non-economic injury in the

environmental law area. In fact, there is the inference that his

“yee.

ee a

13

case would not have been before the Court had Plaintiff alleged

the traditional economic injury. Several times in the opinion,

language appears which leads to the inference that the Court

was expanding the doctrine of standing to include

non-economic as well as economic injuries. For example, at 405

US 738, the. Court noted that the trend has been towards

recognizing that “Injuries other than economic harm are

sufficient to bring a person within the meaning of the statutory

language. . .(W)e noted this development with approval in Data

Processing. . . in saying that the interest alleged to have been

injured ‘may reflect aesthetic, conservational, and recreational

as well as economic values’.”

Also, at 405 US 738, the Court made it clear that it was

not here restricting the standing test, but broadening it:

“ But broadening the category of injury that may be

alleged in support of standing is a different matter from

abandoning the requirement that the party seeking review

must himself have suffered injury.”

Anderson interprets the zeasoning of Zlotnick and Pizitz to

be that a Plaintiff may not use economic injury to satisfy the

“injury in fact” test while alleging environmental interests to

satisfy the “zone of interests” test. However, the Sierra Club v.

Morton case appears to explicitly rebut this speculation that the

same interest must be used to satisfy both prongs of the

standing test.

“ Taken together, Sanders and Scripps-Howard thus

established a dual proposition: the fact of economic

injury is what gives a person standing to seek judicial

review under the statute, but once review is properly

invoked, that pevson may argue the pubiic interest in

support of his claim that the agency has failed 19 comply

with its statutory mandate (405 US at 737).”

In a recent Supreme Court case dealing with the standing

of plaintiffs to sue uncer NEPA, U.S. v. Students Challenging

Regulatory Agency Procedures, (SCRAP), 412 U.S. 669 (1973),

the government challenged Plaintiffs’ standing to sue under

NEPA because plaintiffs alleged, inter alia,economic harm.

Since plaintiffs had also alic ed “environmental interests” as

being injured, the Court declined to rule on the issue of whether

standing could be met under NEPA by an allegation of

economic harm alone:

14

* As in Sierra Club, it is unnecessary to reach any

question concerning the scope of the ‘zone of interests’

test or its application to his case. It is undisputed that the

‘environmental interest’ that the appellees seek to protect

is within the interests to be protected by NEPA, and it is

unnecessary to consider the various allegations of

economic harm on which the appellees also relied in their

pleadings and which the Government contends are outside

the intended purpose of NEPA. (412 U.S. at 686).”

Petitioner respectfully submits that:

(1) The Supreme Court has deferred considcration of

this controversy in a recent case raising the issue of whether

economic injury is sufficient to confer standing under NEPA,

and

(2) One line of cases (Zlotnick and Pizitz) has

interpreted the standing test to preclude economic injury from

satisfying the “injury in fact’ prong of the standing test, while

another line of cases (National Helium and Getty) have allowed

economic injury to meei the “injury in fact”’ test.

The time has therefore come for the Court to reconcile the

standing question definitively in the environmental law area.

These conflicts justify the grant of certiorari to review the

judgment below.

3. THE DECISION BELOW IS CLEARLY WRONG AND CONFLICTS

WITH THE DECISION OF ANOTHER COURT OF APPEALS AS TO

THE PROPER INTERPRETATION OF SECTION 102 (2)(C) OF NEPA,

42 USC §4332.

Both the District Court (Maryland) and the Fourth Circuit

ruled that Petitioner was incorrectly interpreting NEPA when it

argued that an Environmental Impact Statement should be

prepared when a proposed federal project will endanger the

human environment which will be using the project.

Section 102 (2C) of NEPA requires agencies of the

Federal Government to include an Environmental Impact

Statement in “every recommendation or report or proposals for

legislation and other major federal actions significantly affecting

the quality of the human environment.”

The courts below paraphrased Petitioner’s argument to be

that NEPA required an Environmental Impact Statement in

15

situations where the environment would have a significant

effect on the major federal project, and held that the statute did

not cover such.a situation.

Petitioner alleges that the proposed new hospital will

significantly affect the quality of the surrounding human

environment. This is clear from environmental studies showing

likely adverse effects on the hospital’s equipment and patients

from electronic and radar interference, excessive noise, and the

hospital’s proposed location in a dangerous sector of the

airport’s take-off and landing zone. It is clear from numerous

cases that NEPA protects not only adverse environmental

effects on the surrounding natural environment (such as air and

water pollution, razing of forests and parks, etc.), but also

protects against adverse effects on the surrounding human

environment. Examples of cases supporting this proposition are:

McLean Gardens Residents Association v. National Capital

Planning Commission, 2 ELR 20659 (D.C.D.C.1972), in which

apartment tenants sued to prevent razing of their apartments

and adjacent park in favor of an intensive commercial

development with luxury high rise apartment units, shopping

malls, a hospital, hotel, and condominiums. The alleged attack

of the project on the environment was, inter alia (along with air

and water pollution), the net withdrawal of housing from an

already inadequate market, particularly housing which served

poor and middle income apartment dwellers and those over

sixty. The Court held that Defendants had not complied with

NEPA since this was a major federal action “significantly

affecting the quality of the human environment.”

Businessmen Affected Severely By The Yearly Action

Plans, Inc. v. D.C. City Council, 339 F. Supp. 793 (D.C.D.C.

1972) was a case in which property owners, business owners

and tenants sued the D.C. Redevelopment Land Agency over a

particular redevelopment project, and the Court found that the

RLA did not comply with NEPA since its actions would

“significantly affect, (etc.) . . . because replacement of the

existing structures within the 5 squares with high rise office

building will permanently alter the character of the downtown

area, increase pedestrian and vehicular traffic, parking and

public transportation needs, all of which will have an impact on

the environment.”

Hanly vy. Kleideinst, 471 F. 2d 823 (2d Cir. 1972) was a

16

case in which the GSA was erecting a correction center in a city.

The agency had only studied the increased sewerage effect of

the center on the neighborhood, and the court ruled that it had

violated NEPA when it didn’t consider the effects, social and

psychological, such as possible increased crime rates, which the

correction center would have on the surrounding human

environment. This case (Hanly II) followed the earlier case of

Hanly v. Mitchell, 460 F. 2d 640 (2d Cir. 1972) which had

required the GSA to give attention to other factors that might

affect the human development in the area, including the

possibility of violation and disturbances in the jail which might

expose neighbors to additional noise, the dangers of crime to

which neighbors might be exposed as the consequence of having

an out-patient treatment center in the building, possible traffic

and parking problems,” etc. This case was remanded with

instructions to make findings concerning the possible increased

risk of crime and other factors affecting the human

environment.

A similar case is Tierrasanta Community Council vy.

Richardson, 4 ELR 20309 (S.D.Calif. 1973) in which San Diego

residents opposed a GSA juvenile detention center in a low

density residential area. This Court also found NEPA to have

been violated and observed:

“The ecological effect of the proposed federal youth

facility in the Elliott Community is not significant, but the

effect of the use of this facility on the human environment

in a planned residential area in close proximity to a

proposed elementary school site is so significant that an

agency decision to the contrary is so questionable as to

render it arbitrary and capricious.”

Cases such as these make it clear that NEPA protects more

than “traditional” ecological concerns such as parks and

streams, but also covers the situation where a proposed project

will be affecting the surrounding human environment.

The situation in the instant case is one in which the

proposed project might significantly affect the quality of the

human environment as to those people who will be in the

proposed project. The protection of the statute as to the

surrounding human environment surely must extend to the

human environment which will be inside the project, as well as

to that which exists outside of the project. Therefore, an EIS

(Ads:

should have been prepared which ‘took into account the

environmental impact Of the project upon its prospective

clientele.

Contrary to what the lower Courts held, petitioner is not

_advocating a complete turn-about of the statute, but is arguing

for a very small possible extension of it to cover not only the

well-recognized situation where ‘the project affects the

pre-existing surrounding human environment, but also the

situation where the project affects the human environment

which will actually be using the project.

However, even given the argument as postured by the

District Court and Circuit Court, there is support for

petitioner's position’ in Justice Douglas’ opinion in the Ninth

Circuit case of Warm Springs Dam Task Force v. Gribble, 417

U.S. 1301 (1974) in which Justice Douglas granted an

injunction: until NEPA could be complied with in a situation

where a proposed major federal action (a dam) was to be placed

in a potentially hostile environment (along an earthquake fault

line.)

Petitioner respectfully submits that there is both a conflict

in Circuits concerning the proper interpretation of NEPA, and

that the correctness of the decision below, even assuming the

propriety of the statutory test employed, is open to serious

_ question because the facts in the instant case fall within the

statutory mandated test of NEPA which requires an EIS to be

prepared whenever a proposed federal project will significantly

affect the quality of the human environment.

‘

CONCLUSION

For these reasons, a writ of certiorari should be issued to

review the judgment and opinion of the Fourth Circuit.

Respectfully submitted,

WILLIAM H. MANGER

PATRICK M. PILACHOWSKI

1106 One Charles Center ©

Baltimore, Maryland 21201

Counsel for Petitioner

App. 1

OPINION OF THE COURT OF APPEALS

' Issued February en 1975

PER CURIAM:

Pleadirig the National Environmental Policy Act!, the

ee Housing Act?, the Public Health Service Act>, the

re srirnge Health Planning and Public Health Services

and the Noise Control Act*, appellant Clinton

aman Hospital, brought this suit in ‘the Maryland Federal

District Court in October, 1973 against the Southern Maryland

Medical Center, HEW Secretary Weinberger, and HUD Secretary

Lynn to enjoin the construction of SMMC’s hospital. SMMC is a

joint venture of several physicians to construct a 200-bed

hospital slightly more than three miles due south of a major

runway at Andrews Air Force Base in Prince George’s County, :

Maryland. Appellant is a 33-bed facility located some two miles

northwest of SMMC’s proposed site. '

Stripped to its essentials, appellant’s ‘argument is that

SMMC’s proposed hospital would be adversely affected by its

environment, specifically the air base and concomitant air

traffic. The District Court granted SMMC’s motion to dismiss

and sua sponte dismissed the case against the Secretaries.

The District Judge correctly held that appellant had no

standing to sué¢. In the fourth paragraph of the appellant’s

amended complaint it is stated:

!

“Plaintiff (appellant) has:a pecuniary interest in the

outcome of this proceeding, inasmuch as the construction

of the SMMC hospital two miles from Plaintiff's existing

hospital will result in its eventual closing, since, as a 33 bed

hospital, it will be unable to Loieeriaes with the proposed

200 bed hospital. .

If it has in ‘fact suffered an injury, appellant’s economic well

being vis-a-vis its competitors is certainly not arguably within

the zone of interests to be protected” by, the Federal

environmental laws. Association of Data Processing: Service

Organizations, Inc. v. Camp, 397 US 150, 153 (1970).

1 42 USC 4331-4334 (1970).

212 USC 17152z-7(4) (4) (1970)'

342 USC 291d(aX1) (1970)

42 USC 246 (1966)

5 42 USC 4901-4917 (1972)

App. 2

Additionally, as the District Court noted, appellant has

failed to state a claim upon which relief can be granted. It

contends that injunctive relief is in order because cf the impact

of the existing environment on the proposed hospitai. Such

claim turns the statutory scheme 180 degrees around. As it is

stated, the claim was properly dismissed by the District Court.

‘For these and the reasons stated by the District Court, we

affirm the dismissal of the case. Clinton Community Hospital

Corporation v. Southern Maryland Medical Center, et. al., 374

FS 450 (D.Md. 1974).

Affirmed

App. 3

OPINION OF THE DISTRICT COURT

Issued April 16, 1974

The plaintiff Clinton Community Hosptial Corporation

(CCH) on October 3, 1973 filed a Complaint for Injunction

against Southern Maryland Medical Center (SMMC), allegedly a

joint venture consisting of several doctors proposing to organize

and construct a new hospital on lard owned by the defendant

medical center lying some 17,000 feet due south of a major

runway serving Andrews Air Force Base in Prince George’s

County, Maryland.

The Plaintiff hospital, located approximately two miles

northwest of defendant’s proposed hospital site, brought its suit

allegedly to enjoin construction of the new facility “for and on

behalf of the proposed employees and consumers of the

hospital services” to be provided at the new hospital and

medical complex. Jurisdiction was invoked under the provisions

of the National Environmental Policy Act (NEPA), particularly

42 U.S.C. §4331(b)(2) and (3), it being the contention of the

plaintiff that construction of the new hospital at the site

proposed would constitute a risk to health and safety and

would have other undesirable and unintended consequences in

violation of the spirit and policy of Section 4331 (b)(2) and (3)

of the Act.

While the original complaint is prolix and replete with

unnecessary evidentiary detail, the eighty-six paragraphs spread

over 14 pages when sifted down convey plaintiff's view that

departing and landing aircraft would pass directly over the

proposed facility endangering the patients and employees in

several ways. First, it is claimed that the continuous movement

of aircraft presents substantial risk of an air accident involving

the crash of planes or large debris. Next, the noise created by

the aircraft would be unacceptable to patients of the medical

center. Third, radar in the aircraft would adversely affect vital

equipment such as pacemakers and X-ray units and the latter

could alter the guidance systems of the aircraft. The rich fuel

mixture employed by incoming and outgoing airplanes would

App. 4

result in heavy fumes and jet ash in the air which would also

affect the patients and employees using the facility. Finally, the

landing lights of approaching aircraft would enter the patients’

rooms on the southern side of the proposed building.

Plaintiff further contended that defendant obtained approval

of the plans for the new hospital by the Health Advisory

Committee for Prince George’s County after defendant applied

for and received a grant of feasibility from the United States

Department of Health, Education and Welfare (HEW) to obtain

financing from the Department of Housing and Urban

Development (HUD), and that such was granted without an

environmental impact statement required by 42 U.S.C.

§ 4332(c) of every agency of the United States before approving

major federal actions which may affect tic environment.

Plaintiff also alleged that HEW was preparing an impact

statement not yet released, that considers only the effect of

noise pollution.

On October 30, 1973 defendant filed a motion to dismiss

under Rule 12(b)(6) asserting that the National Environmental

Policy Act does not create any substantive private right

whereunder private individuals or corporations can state a cause

of action or claim upon which relief may be granted against

other private individuals or corporations.

The Court scheduled a hearing on defendant’s motion to

dismiss for January 3, 1974. On December 28, 1973 plaintiff

filed a Motion for Leave to Amend Complaint in order to join

HEW and HUD as parties defendant, and on the same day the

Court signed an order granting the motion and permitting such

amended complaint to be filed.

Following the hearing on January 3, 1974, the Court on

January 10, 1974 signed a further order directing plaintiff by

January 18, 1974 to file his amended complaint adding HEW

and HUD as defendants and asserting plaintiff's claims against

those agencies.

On January 17, 1974 plaintiff filed a 53 page Amended

Complaint for Injunction containing this time 194 numbered

paragraphs, to which was attached a 21 page “Memorandum of

Law Filed in Conjunction with Amended Complaint of

Injunction” and appended to these two documents are 128

pages of “exhibits” consisting of magazine articles, letters,

App. 5

charts, official correspondence and sundry other material

apparently designed to lend factual support to the complaint.

The authority for the filing of the “‘exhibits” is by no means

clear. Defendant Southern Maryland Medical Center has

renewed its Motion to Dismiss and the two federal defendants

Caspar Weinberger, Secretary of HEW, and James Lynn,

Secretary of HUD, have moved pursuant to Rule 12(f) to strike

the Amended Complaint for Injunction, memoranda of law and

documents attached thereto as failing to meet the requirements

of Rule 8(a).

The Amended Complaint

The amended complaint adopts a notable shift in emphasis in

that it does not in terms purport to be brought for the benefit

of the employees and patients of the new facility defendant

Southern Maryland Medical Center seeks to erect. Instead, it

now appears that Plaintiff has a pecuniary interest in the

outcome of this proceeding, inasmuch as the construction of

the SMMC hospital two miles from plaintiff's existing hospital

will result in its eventual closing, since as a 33 bed hospital, it

will be unable to compete with the proposed 200 bed hospital

proposed by SMMC.”

The amended complaint while complaining principally that

defendants are engaged or about to engage in acts and practices

contrary to the National Environmental Policy Act (42 U.S.C.

§ 4331 et. seq.) and the Noise Control Act of 1972 (42 U.S.C.

§§ 4901-4917), invokes the jurisdiction of this Court on the

foilowing basis.

Jurisdiction and Venue

3. The action arises under the following Federal

Statutes:

A. Sections 101 to 104 of the National

Environmental Protection Act (42 USC 4331 to 4334).

B. Section 242(d)(4) of the National Housing

Act (12 USC 1715z7(d)(4)).

C. Section 604(a)(1) of the Public Health

Service Act (42 USC 291d(a)(1))

App. 6

I). Comprehensive Health Planning and Public

Health Seivices Act (42 USC 246).

E. Noise Control Act of 1972 (42 USC

4901-4917) as hereinafter more fully appears. The matter

in controversy exceeds, exclusive of interest and cost, the

sum of $10,000.”

Boiled down, the amended complaint sets out four broad

claims for relief.

(1) It alleges that NEPA has been violated first in that HEW

instead of preparing an Environmental Impact Statement in

connection with the proposed project, has prepared a Marginal

Environmental Impact Statement (MEIS) addressed only to the

impact that the proposed hospital would have on the land

selected by Southern Maryland Medical Center, rather than the

effect of the already existing environment on the hospital when

constructed. Plainuff in paragraph 100 likens the subject matter

of the MEIS “to an examination of the impact of planting a

pansy bed in an artillery shell testing field and limiting the

inquiry as to what adverse effect the pansy bed will have on the

surrounding grass.” Plaintiff secondly alleges that the MEIS

“avoids the central issue of whether patients, doctors and staff

are part of the environment which government agencies are

directed to protect under the National Environmental Policy

Act.” _— id.

(2) As to the violation of the cited section of the National

Housing Act, plaintiff has directly alleged only that the HUD

mortgage insurance authorized by the section should not be

issued in the absence of a proper environmental impact

statement. That allegation states, at best, a violation of the

NEPA, not of the Housing Act. However, the Court has

assumed that the plaintiff is also alleging violations of the

conditions for HUD insurance set out by 12 USC § 1715z-7

itself.

(3) The complaint further alleges that the Comprehensive

Health Planning Act, 42 USC 246, has been violated in that the

agencies of the State of Maryland operating pursuant to that

Act are improperly constituted and have not filed a plan as

required by the Act. (These allegations will be discussed in

greater detail below.)

App. 7

(4) The complaint also alleges violations of the Noise

Control Act, 42 USC § § 4901 et seq., in that HEW has not

consulted with the Administrator of the Environmental

Protection Agency concerning research on noise control that

might affect the SMMC site. HEW is also alleged to have

violated the policy guidelines set out in 42 USC § 4901(b).

Motion to Dismiss

Preliminarily, the Court noted that only defendant Southern

Maryland Medical Center has moved to dismiss for failure to

state a claim, pursuant to Rule 12(b)(6), Fed.R.Civ.P. The

federal defendants not having filed such a motion, the question

arises whether the Court would therefore be precluded from

considering any failure on the part of the plaintiff to state a

claim against them. Martin v. Broadcast Music, Inc., 248 F.2d

530, at 531 (9th Cir. 1957); Gutensohn v. Kansas City Southern

Rwy. Co., 140 F.2d 950 (8th Cir. 1944).

More recently, courts have held that where circumstances

warrant, dismissal of the whole complaint on the court’s own

motion may be proper. Robins v. Rarback, 325 F.2d 929 (2nd

Cir. 1963); Sutton v. Hilco Homes Corp. 283 F.Supp. 492, at

494, fn.2 (E.D. Pa. 1968); 5 Wright & Miller, Federal Practice

and Procedure, § 1357, at 593, tn. 43. As the ninth Circuit

noted in Dodd ». Spokane County, Washington, 393 F.2d 330,

at 334 (1968),

{Tghe court in practical effect invoked on

ifown motion Rule 12(b)(6), Fed.R.Civ.P.

fhis the court has the right to do if the

‘proper procedural steps were taken and if

the determination is correct on the merits.

The court in the latter case held that the procedural steps had

not been taken in that the plaintiff had no notice of the

proposed action and no opportunity to file even a written

argument. See also Literature Inc. v. Quinn, 482 F.2d 372 (Ast

Cir. 1973).

App. 8

It is this Court’s conclusion that those procedural steps have

been met, or rendered unnecessary in the instant case. As has

been noted, the plaintiff already has been afforded an

opportunity to amend its complaint in response to SMMC’s first

motion to dismiss. That first motion was exhaustively argued at

the hearing held on January 3, 1974. Second, the issued raised

by SMMC’s second motion to dismiss apply equally to the

Federal defendants; third, the same issues again have been

exhaustively discussed by the plaintiff in a twenty-one page

Memorandum of Law, which the Court has treated as an

opposition to the SMMC Motion to Dismiss. Consequently this

Court feels that the requirements of fairness and judicial

efficiency are best served by considering in a single opinion

whether plaintiff has stated a claim on which relief may be

granted against any of the named defendants.

Additionally, the Court notes that the Federal defendants

have filed a Motion to Strike the Amended Complaint, its

supporting “Exhibits” and the Memorandum of Law, arguing

that they are prolix and confusing and in clear violation of Rule

8. The Court agrees with the observation at page 2 in the

Memorandum of Points and Authorities filed in support of that

motion that as regards the Amended Complaint “From page 7

to page 51 we are confronted with a confusing mixture of legal

allegations, statements of opinion, quotations from documents

and hearings in no particular order or discernible pattern. All of

this clearly violates Rule 8(e)(1).”’ Even granting, as plaintiff has

argued in its Memorandum in Opposition to the Motion to

Strike, that a plaintiff “suing in the environmental context is

confronted with a rather harsh burden on its ability to

demonstrate standing” and as plaintiff in that memorandum

himself admits, a need in this case to “allege those facts tending

to demonstrate that the NEPA and the Noise Control Act

would be equally applicable to a situation where the proposed

project would be the object of the adverse environmental

factors, rather than the perpetrator or the one that inflicts harm

upon the environment”, attaining those goals if they were

attainable would be aided more by clarity and brevity than by

the prolixity evidence in the Amended Complaint. In view of

the disposal of the suit on the merits, the Court need not

determine how to enforce compliance with Rule 8.

App. 9

Since the respective positions of the parties on whether a

cause Jf action has been stated have been fully set forth both in

the oral argument before the Court on January 3, 1974 and in

the memoranda subsequently filed, the Court feels no useful

purpose would be served by hearing further argument on the

point.

The NEPA Claims

Before addressing the substantive basis of plaintiff's NEPA

claim, the Court will consider whether the plaintiff has standing

to raise any such claim.

The fundamental tests for standing in such a suit as this were

set out by the Supreme Court in Association of Data Processing

Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827

(1970) and Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361,

31 L.Ed.2d 636 (1972). The tests are twofold.

First, to maintain an action a plaintiff must show he has

sustained actual injury “injury in fact”. Data Processing, 90 S.

Ct. at 829; Sierra Club, 92 S. Ct. at 1365. The second

requirement is that plaintiff fall within the “zone of interests to

be protected or regulated by the statute or constitutional

guarantee in question.” Data Processing, at 830.

Plaintiff advances what amount to two alternative theories of

standing for his NEPA claims. As to one, this Court concludes,

he has alleged injury in fact, but does not come within the

necessary zone of interest. As to the other, he has not shown

injury in fact within the test established by Sierra Club.

Plaintiff first asserts standing as a competitor to SMMC.

Despite all the references to the environment, it is apparent that

plaintiff's real aim is not to improve the quality of life for this

and future generations, but rather to prevent the building of a

competitive hospital by highlighting the disadvantages of the

competitor’s site near an existing air base. While showing a real

_injury, this status is not within the area protected or regulated

by NEPA.

In Zlotnick v. District of Columbia Redevelopment Land

App. 10

Agency, 2 ELR 20235 (D.D.C. 1972), Judge Gerhard Gesell

dismissed a suit by city property owners to enjoin

condemnation of their land for urban revewal. Judge Gesell held

they could not compel the prepartion of a more adequate

impact statement, because their object really was the protection

of their own financial interests. Judge Gesell in the course of his

opinion stated:

It is not enough that an inadequate environmental

impact statement may have been filed for these very

preliminary stages of a much larger project that will take

years to complete. To have standing grounded on a federal

statute plaintiffs must assert an interest ‘arguable within

the zone of interests to be protected or regulated by the

statute . . . in question.’ Association of Data Processing

Serv. Organizations, Inc. v. Camp, 397 U.S. 150 153

(1970); Blackhawk Heating and Plumbing Co. v. Driver,

433 F.2d 1137, 1140 (D.C. Cir. 1970). Plaintiffs can at

best claim only a remote, insubstantial, highly speculative

and ephemeral interest in the environment. They have

nothing but their own financial interest to protect as their

continuing efforts to achieve financial settlement

emphasize. Obviously they would abandon _ their

environment concerns in a moment if the price were right.

Similarly in Pizits vy. Volpe, businessmen sought to attack an

impact statement for a parkway overpass project as inadequate}

Although the District Court did consider the sufficiency of the

impact statement and held it in compliance with all NEPA

standards, it did characterize the suit as a “spurious” NEPA case

in language which this Court feels would aptly describe the

present suit:

The Court has characterized plaintiff's case as

‘spurious’ because, as the pleadings reflect,

plaintiffs primary concern in filing and

prosecuting this litigation was to avert a

threatened loss of business. The environmental

aspects of the case were brought in only to

maintain the action. Of course, the National

12ELR 20378 (M.D. Ala. 1972), aff'd, 467 F.2d 208, 2ELR 20379 (Sth Cir.

1972).

App. ll

Environmental Policy Act was not designed to

prevent loss of profits, but was intended only to

promote governmental awareness of

environmental problems.

Plaintiff has no standing under NEPA as a competitor to SMMC.

A second ground for plaintiff's NEPA claim apparently is

that as a hospital it too enjoys the environment, and like any

other “consumer” of the environment may seek to prevent

harm to it. While plaintiff does not claim economic harm from

any lost enjoyment of the environment, the Supreme Court has

made clear that injury to “esthetic and environmental

well-being” may also amount to injury in fact. Sierra Club,

supra, at 1366.

The question then is whether a corporation such as the

plaintiff can be said to have any “aesthetic” sensitivity. The

Sierra Club case held that even a club with avowed

environmental concerns could not sue in its own name if it

could not allege any particularized injury. 92 S.Ct. at 1368.

Although conceding that the Sierra Club has a long standing

“special interest” in the environment, the Court felt nonetheless

that no injury in fact was shown. A fortiori, the plaintiff in the

case at bar—who has not alleged any previous commitment to

conservation—cannot show any harm accruing to it from

potential damage to environment.?

Approaching the question in another way, the argument

certainly could be made that corporations are per se, incapable

of suffering “‘aesthetic”’ injury. Here one may draw an analogy

from the law of privacy. It is clear that corporations do not

enjoy the right to privacy. In U.S. v. Morton Salt Co., 338 U.S.

632, at 652; 70 S.Ct. 357, at 368 (1950), the Supreme Court

2The Supreme Court further specifically distinguished and approved its earlier

holding that clubs do have standing to sue for injuries to their members. See NAACP

v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); see also Ward v.

Ackroyd, 344 F.Supp. 1202 (D.Md. 1972); National Association for Community

Development v. Hodgson, 356 F.Supp. 1399 (D.D.C. 1973). Those rulings are of no

help to this plaintiff who has not alleged injury to any members, and who has not

joined any shareholders or officers, cf. First National Bank of Homestead v. Watson,

363 F. Supp. 466 (D.D.C. 1973).

App. 12

ruled that Corporations could not resist an FTC subpoena on

invasion of privacy grounds, saying,

{Cjorporations can claim no equality with individuals

in the enjoyment of a right to privacy. [Citation

omitted.]. They are endowed with public attributes.

They have a collective impact upon society from

which they derive the privilege of acting as artificial

entities.

In Hale v. Henkel, 201 U.S. 43, at 78; 26 S.Ct. 370, at 380

(1906), Justice Harlan concurring, said,

Ir my opinion, a corporation—‘an artificial being,

invisible, intangible, and existing only in

contemplation of law’—cannot claim the immunity

given by the 4th Amendment; for it is not of the

‘people’ within the meaning of that Amendment.

Again, 62 Am. Jur. 2d Privacy § 11, at 692 reads,

Since the right of privacy is primarily designed to

protect the feelings and sensibilities of human beings

rather than to safeguard property, business, or other

pecuniary interests, the courts have denied this right

to corporations and other institutions.

While, obviously, some of the concerns that prompted the denial

to corporations of the right of privacy are not relevant to their

enjoyment of the environment, it is clear that the statement of

policy in Section 101 of NEPA, 42 USC §4331, especially

Subsection (c) (“each person should enjoy a_ healthful

environment . . .”) is directed at the feelings and sensibilities of

human beings, and not to “artificial entities’’.

Accordingly, this Court concludes that plaintiff cannot as a

corporation assert an injury to its esthetic enjoyment of the

environment.

While the conclusion that plaintiff is without standing to

raise NEPA claims disposes of the issue, the Court also notes

that the claims lack substantitive basis.

Plaintiff's argument that an environmental impact statement

must examine the effects of Andrews Air Force Base on the

SMMC might have point if Plaintiff had built its hospital on the

App. 13

land now owned by SMMC and the United States had then

sought to build the Air Base where it is now located. The

plaintiff might have a claim under NEPA that the effect of the

project (i.e., the Air Base) on the existing environment

(including its hospital) would call for an environmental impact

study. In the present case, however, the project is the proposed

competitive hospital, and in the Court’s view, under NEPA the

involved agencies must consider the effect of the hospital

building on the surrounding environment, not the effect of the

environment on the hospital.

Additionally, plaintiff argues that “‘the people who will be

patients, will be working and will be visiting the hospital are

themselves a part of the environment and are entitled to those

considerations to which the NEPA was directed”? If this is the

closest the plaintiff can come to a legitimate environmental

concern, in the Court’s view it is clearly beyond the zone of

interests which NEPA protects.

No support can be found, in the text of NEPA, in its

legislative history, or in the cases construing it, for this

extraordinary and bizarre proposition. The term “environment”

is not defined in the Act, but there are indications that it does

not include human beings. For example, Section 101(b)(2), 42

USC §4331(b)(2) envisions as one of the ends of the national

policy, to

assure for all Americans safe, healthful, productive,

and esthetically and culturally pleasing surround-

ings. [Emphasis added.]

It would be an egregious and unwarranted extension of the

scope of NEPA to require that any “major Federal action”

which would affect people—thus encompassing virtually every

government program—be suspended until an environmental

impact statement is prepared. To state the proposition is to

show its absurdity.

The Court concludes, therefore, that plaintiff has failed to

state a claim upon which relief can be granted under NEPA and

3 Plaintiff's “Memorandum in Opposition to Federal Defendant’s Motion to

Strike”, p. 3.

App. 14

that the 194 paragraphs and 53 pages of the amended complaint

mount up only to a spurious NEPA suit.

The Claims under the National Housing Act,

12 USC § 1715z-7

The section of the Act cited by the plaintiff permits the .

Secretary of HUD to grant mortgage insurance to nonprofit ‘

hospitals, provided certain conditions are met. It appears that

plaintiff's asserted claims under this Act are in Jarge measure

claims under NEPA. To that extent, they have already been

discussed; to the extent they assert other grounds they are

prematurely presented.

Plaintiff does not allege that any mortgage insurance has yet

been authorized or granted. Paragraphs 4, 5, 6, 94 and 95 of the

Amended Complaint. Should such insurance be, granted, it is

conceivable that plaintiff might have a cause of action, as a

competitor to’ the recipient, under the doctrine of Data

Processing, supra, and under the provisions of § 10(a) of the

Administrative Procedure Act,5 USC § 702. However, review of

agency action under that Act is authorized only when the

action is final. 5 USC § 704. |

The problem [ of finality or ripeness] is best seen in a

twofold aspect, requiring us to evaluate both the

fitness of the issues for judicial discretion and the

hardship ‘to the parties of ‘withholding court —

consideration.

Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507,

at 1515, 18 L.Ed.2d 681 (1967).

In this case, delay will work no hardship on the plaintiff. If

HUD insurance is vital to SMMC, construction will not be

completed without it; if the insurance is not vital, then CCH

accomplishes nothing more by blocking the HUD insurance now

than at a later time.

More importantly, it is clear that the issues posed by

plaintiffs allegations are not sufficiently concrete to permit

review, since HUD has made 10 decision whatever. See Hanley

i

App. 15

v. Volpe, 305 F. Supp. 977 (E.D. Wis. 1969)4

Plaintiff also lists 42 USC §291 d(a\(1) as a source of its

claims, but none of ‘the allegations of the amended complaint

involve that statute.5> Since 12 USC § 1715z-7(4) refers to this

' section of Title 42, this Court has assumed that the claimed

violation relates only to the HUD claim.

This Court concludes that challenge to the HUD mortgage

insurance is, premature, and should therefore be dismissed.

Should HUD eventually make a determination adverse to

plaintiff, that will be the time for plaintiff to consider whether

an action can be brought for review. |

Lyris ‘Claims under the !

‘Comprehensive Health Planning Act

42 USC § 246

Plaintiff's allegations under this Act’ require considerable

discussion.

42 USC §246(a) authorizes the Secretary of HEW to grant

funds to the states for comprehensive health planning, provided

certain conditions are met. One such condition is that the state

designate. an agency to receive the funds, § 246(a)(1); under

Article 41, Section 59C, Annot. Code of Md., an agency titled

the Comprehensive Health Planning Agency (CHPA) is so

designated.

!

/

4Piaintiff alleges that, under a “Memorandum. of Agreement” HEW makes

determinations of approvability, and that HUD “‘as a practical matter . . . under

‘ normal circumstances accepts HEW’s review and recommendations ‘2s the basis for

FHA approval.” Amended Complaint, paragraph 18. Plaintiff also alleges that HEW

has granted SMMC “feasibility . . . approximately nine months ago”. Amended

complaint, paragraph 95. This Court does not consider that these allegations create

finality at this stage, since HUD approval while possible and perhaps even probable, is

not inevitable.

\

/

SThere isa possibility that plaintiff has made assertions meant to apply equally to

42 USC §291d(a)(1) and 42 USC §246. If that is the case, then the discussion

below of 42 USC §246 also applies to the claims under 42 USC '§2914.

‘

/

App. 16

Article 43, Section 559 Annot. Code of Md. authorizes the

Secretary of the State’s Department of Health and Mental

Hygiene to license hospitals. Subsection (a-10) of that section

directs that no license be granted

unless the hospital . . . conforms to or is not

inconsistent with the comprehensive health plan

developed and applicable for the particular area.

Where no comprehensive health plan has been

developed for a particular area, the State’s

comprehensive health planning agency shall make the

determinations required. This reference is to the

comprehensive health plan developed and effective

under § S9C of Article 41 of this Code.

The subsection also states:

- + .the Prince George’s County health planning

advisory committee shall be deemed the interim

regional health facilities planning agency for Prince

George’s County pending designation of a permanent

planning agency for any region | hat, shall include

Prince George’s County.

Plaintiff alleges that the CHPA adopted a plan in 1970, against

which the SMMC and CCH proposals (to build and to extend,

respectively) were apparently to be measured. Paragraphs 44-54,

Amended Complaint.

The County Health Planning Advisory Committee (HPAC)

recommended on March 10, 1971 that plaintiff's application for

a hospital expansion be denied; on March 29, 1971, the CHPA

endorsed that recommendation. On November 1, 1972, A

Board of Review of the Department of Health and Mental

Hygiene also endorsed those recommendations. Paragraphs 69,

70 and 75 of the Amended Complaint. The Secretary then

denied plaintiff a Certificate of Necessity. Paragraph 91. At

about the same time, apparently, SMMC’s application was

approved by the same bodies. Paragraphs 89, 90, 91 and 93.

App. 17

(2) that the 1970 Plan was not a Plan as required by law;

(3) that the members and personnel of the HPAC and

CHPA were incompetent, biased or both.

Tl.ese allegations appear to imply three legal claims:

(:\) that the actions violated state statutes;

(B) that the actions, insofar as they led to final decisions on

licensing both SMMC and CCH, violated 42 USC § 246;

(c) That the actions, as part of the process leading to HUD

Mortgage insurance for SMMC violate 12 USC

§ 1715z-7.

The first claim does not by itself state a claim cognizable in

federal court, as no federal right is asserted. 28 USC § 1331.

Plaintiff's resort to the state courts (Paragraphs 73-77) indicates

its recognition of that conclusion.

The second cause of action is more troublesome. Unra ts

apparently federally funded; if plaintiff were within the zone of

interest of the Act, and if it were injured directly by an action

of that agency, it may be that it would be able to maintain an

action in this Court. New York City Coalition for Community

Health v. Lindsay, 362 F.Supp. 434 (S.D.N.Y. 1973). But

neither condition is met in this instance.

If the CHPA acted improperly, it was in violation of both

federal and state law. Furthermore, its recommendations were

but one step toward the final action of the Secretary of Health

and Mental Hygiene. If the Secretary or the Board of Review

acted improperly, they were in violation only of state law, since

they are neither funded by nor responsible to the federal

government. Consequently, the alleged violation of a federal

statute is but a minor portion of plaintiff's grievance.

For that reason, plaintiff has not stated a federal claim within

the jurisdiction of this Court.

A mere incidental or collateral federal question may

appear or may durk in the background of the record,

but this is not, a sufficient or adequate basis upon

6 The Secretary’s action’ may also be part of the procedure leading to the HUD

mortgage insurance. In that character, they are not final actions reviewable by this

Court; see pages 13-14 supra.

App. 18

which federal jurisdiction may attach.

Screven County v. Brier Creek Hunting and

Fishing Club, 202 F.2d 369, at 370 (Sth

Cir. 1953)

See also Burgess v. Charlottesville Savings & Loan Assoc., 477

F.2d 40, at 44 (4th Cir. 1973).

Another description of the same doctrine is

that when the controversy between the parties may

be decided under local law without the necessity of

interpreting a federal statute, there is no federal

jurisdiction.

Cabana Management Inc. y. Hyatt Corp.,

441 F.2d 862, 864 (Sth Cir. 1971)

See generally Gully v. First National Bank, 299 U.S. 109, 57

S. Ct. 96, 81-L.Ed. 70 (1936); Hines v. Cenla Community

Action Committee, 474 F.2d 1052 (Sth Cir. 1973).

Furthermore, it is doubtful whether plaintiff has standing in

these circumstances to challenge the actions or make-up of the

CHPA. The primary purpose of the agency under the federal act

is to improve the health planning of the state. It is not at all

clear that a hospital affected by an action of CHPA pursuant to

a wholly separate state statute (Article 43, Section 559) can be

held to be within the zone of interest of the federal act under

the rule of Data Processing. See Hines, supra, at 1056; cf.

Gomez v. Board of State Employment Services, 417 F.2d 569

(Sth Cir. 1969).

The third claim, as the Court has already described, is not yet

ripe for judicial review. The extent to which CHPA’s

recommendation (even if improperly arrived at) may or may

not have contributed to a HUD action adverse to plaintiff can

only be determined when such action is final.

Claims under the Noise Control Act,

42 USC § § 4901 et seq.

Plaintiff has cited 42 USC § 4903 (c)(2) as the source of its

claim, Amended ‘Complaint, Paragraph 22, and alleges that the

section has been violated in that HEW has not consulted with

App. 19

the Environmental Protection Agency concerning the noise in

the environment of the SMMC, and in that HEW “has failed to

carry out its programs as it relates to the SMMC project in a

manner consistent with the policy declared in Title 42, Section

4901(b).” Paragraphs 166 and 167, This Court concludes that

the plaintiff lacks standing to bring such an action, for the

reasons advanced at the outset of this memorandum in the

discussion of standing under NEPA.

It is true that 42 USC §4911(a) authorizes suits by private

citizens to remedy the “violation of any noise control

requirement”. However, as defined in Subsection (f) of the

same section, a “requirement” is created by regulations

promulgated by the Environmental Protection Agency or

Federal Aviation Agency. Plaintiff has alleged the existence of

no relevant regulation, and has therefore not stated a claim for

which relief can be granted. See, e. g., Burton v. Peartree, 326

F.Supp. 755, at 761 (E.D. Pa. 1971); Cross v. Board of

Supervisors of San Mateo County, 326 F. Supp. 634 (N.D. Cal.

1968), affirmed 442 F.2d 362 (9th Cir. 1971).

Conclusion

For all the foregoing reasons, this Court will grant the Motion

to Dismiss filed by the Southern Maryland Medical Center, and

will on its own motion order the dismissal of the action as to

defendants Weinberger and Lynn. An order giving effect to this

ruling is attached to this Memorandum.

(Signed) Herbert L. Murray

United States District Judge

Dated April 16, 1974

App. 20

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

CLINTON COMMUNITY .

HOSPITAL CORPORATION

v. ® Civil No. 73-981-HM

SOUTHERN MARYLAND

MEDICAL CENTER et. al. =

ORDER

For the reasons stated in the Court’s Memorandum filed this

date, it is this 16th day of April, 1974, by the United States

District Court for the District of Maryland, hereby

ORDERED that the Motion to Dismiss Amended Complaint

for Injunction filed by defendant Southern Maryland Medical

Center be, and the same hereby is, Granted, and it is further

ORDERED that plaintiff's Amended Complaint for

Injunction as against all of the defendants be, and the same

hereby is, Dismissed Without Leave to Amend, with costs to

defendants.

(Signed) Herbert L. Murray

United States District Judge