Kleppe v. Sierra Club

Mr. Justice Marshall,

with whom Mr. Justice Brennan joins, concurring in part and dissenting in part.

While I agree with much of the Court’s opinion, I must dissent from Part IY, which holds that the federal courts may not remedy violations of the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852 , 42 U. S. C. § 4321 et seq. — no matter how blatant — until it is too late for an adequate remedy to be formulated. As the Court today recognizes, NEPA contemplates agency consideration of environmental factors throughout the decisionmaking process, j3in.ce NEPA’s enactment, however, litigation has been brought primarily at the end of that process — challenging agency decisions to act made without adequate environmental impact statements or without any statements at all. In such situations, the courts have had to content themselves with the largely unsatisfactory remedy of enjoining the proposed federal action and ordering the preparation of an adequate impact statement. This remedy is insufficient because, except by deterrence, it does nothing to further early consideration of environmental factors. And, as *416 with all after-the-fact remedies, a remand for preparation of an impact statement after the basic decision to act has been made invites post hoc rationalizations, cf. Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402, 419-420 (1971), rather than the candid and balanced environmental assessments envisioned by NEPA. Moreover, the remedy is wasteful of resources and time, causing fully developed plans for action to be laid aside while an impact statement is prepared.

Nonetheless, until this lawsuit, such belated remedies were all the federal courts had had the opportunity to impose under NEPA. In this case, confronted with a situation in which, according to respondents’ allegations, federal agencies were violating NEPA prior to their basic decision to act, the Court of Appeals for the District of Columbia Circuit seized the opportunity to devise a different and effective remedy. It recognized a narrow class of cases — essentially those where both the likelihood of eventual agency action and the danger posed by nonpreparation of an environmental impact statement were great — in which it would allow judicial intervention prior to the time at which an impact statement must be ready. The Court today loses sight of the inadequacy of other remedies and the narrowness of the category constructed by the Court of Appeals, and construes NEPA so as to preclude a court from ever intervening prior to a formal agency proposal. This decision, which unnecessarily limits the ability of the federal courts to effectuate the intent of NEPA, is mandated neither by the statute nor by the various equitable considerations upon which the Court relies.

I

The premises of the Court of Appeals’ approach are not novel and indeed are reaffirmed by the Court today. *417 Under § 102 (2) (C) of NEPA, 42 U. S. C. § 4332 (2) (C), “the moment at which an agency must have a final ['environmental impact] statement ready 'is the time at which it makes a recommendation or report on a proposal for federal action.’ ” Ante, at 406, quoting Aberdeen & Rockfish R. Co. v. SCRAP, 422 U. S. 289, 320 (1975) (first emphasis added). Preparation of an impact statement, particularly on a complicated project, takes a considerable amount of time. Flint Ridge Dev. Co. v. Scenic Rivers Assn., 426 U. S. 776 , 789 n. 10 (1976); Sixth Annual Report, Council on Environmental Quality 639 (1975). Necessarily, if the statement is to be completed by the time the agency makes its formal proposal to act, preparation must begin substantially before the proposal must be ready. In this litigation, for instance, the federal petitioners assert that a statement on the region in which respondents are interested would take more than three years to complete. Brief for Federal Petitioners 28 n. 22. Accordingly, since it would violate NEPA for the Government to propose a plan for regional development of the Northern Great Plains without an accompanying environmental impact statement, if the Government contemplates making such a proposal at any time in the next three years it should already be working on its impact statement.

But an early start on the statement Is more than a procedural necessity. Early consideration of environmental consequences through production of an environmental impact statement is the whole point of NEPA, as the Court recognizes. The legislative history of NEPA demonstrates that “[b]y requiring an impact statement Congress intended to assure [environmental] consideration during the development of a proposal.. . .” Ante, at 409 (emphasis added). Compliance with this duty allows the decisionmaker to take environmental *418 factors into account when he is making decisions, at a time when he has an open mind and is niore likely to be receptive to such considerations. Thus, the final impact statement itself is but “the tip of an iceberg, the visible evidence of an underlying planning and decision-making process that is usually unnoticed by the public.” Sixth Annual Report, Council on Environmental Quality 628 (1975).

Because an early start in preparing an impact statement is necessary if an agency is to comply with NEPA, there comes a time when an agency that fails to begin preparation of a statement on a contemplated project is violating the law. It is this fact, which is not disputed by the Court today, that was recognized by the Court of Appeals and that formed the basis of its remedy. The Court devised a four-part test to enable a reviewing court to determine when judicial intervention might be proper in such cases. The questions formulated by the Court of Appeals were:

“How likely is the program to come to fruition, and how soon will that occur? To what extent is meaningful information presently available on the effects of implementation of the program, and of alternatives and their effects? To what extent are irretrievable commitments being made and options precluded as refinement of the proposal progresses? How severe will be the environmental effects if the program is implemented?” 169 U. S. App. D. C. 20, 44, 514 F. 2d 856, 880 (1975).

While the Court’s disapproval of this four-part inquiry precludes any future demonstration of its workability, the test is designed to allow judicial intervention only in the small number of cases where the need for work to begin on an environmental impact statement is clear *419 and the agency violation blatant. 1 And, indeed, the Court of Appeals refused to find a violation here, concluding instead that on two of the four factors the evidence was such as to negate the need for a prompt start on an impact statement.

*420 II

1 believe the Court of Appeals’ test is a sensible way to approach enforcement of NEPA, and none of the Court’s reasons for concluding otherwise are, for me, persuasive. 2

The Court begins its rejection of the four-part test by announcing that the procedural duty imposed on the agencies by § 102 (2) (C) is “quite precise” and leaves a court “no authority to depart from the statutory language . . .Ante, at 406. Given the history and wording of NEPA’s impact statement requirement, this statement is baffling. A statute that imposes a complicated procedural requirement on all “proposals” for “major Federal actions significantly affecting the quality of the human environment” and then assiduously avoids giving any hint, either expressly or by way of legislative history, of what is meant by a “proposal” or by a “major Federal *421 action” can hardly be termed precise. In fact, this vaguely worded statute seems designed to serve as no more than a catalyst for development of a “common law” of NEPA. To date, the courts have responded in just that manner and have created such a “common law.” 169 U. S. App. D. C., at 34-36, 614 F. 2d, at 870-872. Indeed, that development is the source of NEPA’s success. Of course, the Court is correct that the courts may not depart from NEPA’s language. They must, however, give meaning to that language if there is to be anything in NEPA to enforce at all. And that is all the Court of Appeals did in this case.

But, claims the Court, judicial intervention of the sort approved by the Court of Appeals would leave the agencies uncertain about their procedural duties under NEPA. There is no basis for this claim. The agencies already know their duties under NEPA and the Court of Appeals did not alter them. All it did was create a mechanism to allow it to enforce those pre-existing duties.

Next, the Court fears, the four-part test would “invite judicial involvement in the day-to-day decisionmaking process of the agencies . . . .” Ante, at 406. This concern is in part untrue and in part exaggerated. The test would certainly result in judicial involvement with the single decision whether the time is right to begin an impact statement. But this is hardly a day-to-day process, and the involvement even in that decision would be limited to timing alone. The Court of Appeals made clear that, so long as their decision was not arbitrary or capricious, “definition of the proper region for comprehensive development and, therefore, the comprehensive impact statement should be left in the hands of the federal appellees,” 169 U. S. App. D. C., at 45 n. 33, 514 F. 2d, at 881 n. 33, a position which the Court adopts today. Ante, at 412. And, most important, a federal *422 court would intervene at all only when the four-part test indicated an abdication of the agency’s statutory duty and the necessity for judicial intervention.

The Court is also concerned that the proposed rule would invite litigation. But the recognition of any right invites litigation, and it is a curious notion of statutory construction that makes substantive rights depend on whether persons would seek to enforce them in court. See United States v. Watson, 423 U. S. 411, 433 , 452 n. 19 (1976) (Marshall, J., dissenting). In any case, to the extent the litigation is the result of agency noncompliance with NEPA, the Court can hardly complain about it. And to the extent the litigation is frivolous, the four-part test is a stiff one and “the plaintiff can be hastened from [the] court by summary judgment.” Barlow v. Collins, 397 U. S. 159 , 175 n. 10 (1970) (opinion of Brennan, J.).

Lastly, the Court complains, since some contemplated projects might never come to fruition, the Court of Appeals’ test might result “in the preparation of a good many unnecessary impact statements.” Ante, at 406 (footnote omitted). Even bypassing the instances in which a project is dropped as a result of environmental considerations discovered in the course of preparing an impact statement, the Court’s concerns are exaggerated. The Court of Appeals showed great sensitivity to' the need for federal officials to be able “to dream out loud without filing an impact statement,” 169 U. S. App. D. C., at 43, 514 F. 2d, at 879 , and did not seek to disturb that freedom. Indeed, a major point of the four-part test is to avoid wasted effort — including the wasted effort of enjoining an already proposed project to allow the belated preparation of an impact statement — and the Court suggests, and I can imagine, no reason why the test is unlikely to be successful in achieving that goal.

*423 In short, the Court offers nothing but speculation, misconception, and exaggeration to reject a reasonably designed test for enforcing the duty NEPA imposes upon the federal agencies. Whatever difficulties the Court may have with the initial application of the test in this case — and I agree that an injunction was not warranted on the facts before the Court of Appeals — the Court has articulated no basis for interring the test before it has been given a chance to breathe.

Nothing in Flint Ridge Dev. Co. v. Scenic Rivers Assn., 426 U. S. 776 (1976), suggests that work on an impact statement cannot successfully begin in situations identified by this four-part test. In Flint Ridge, in considering whether an agency should begin work on an impact statement arguably necessary for federal approval of certain private action by a real estate developer, we rejected the claim that the agency should begin work before the private action was submitted to the agency for approval. “The agency could not fruitfully begin the impact statement until the developer’s plans were fully or largely worked out . . . .” Id., at 791 n. 13.

This language is not contrary to the Court of Appeals’ position here for two reasons. First, the quoted language recognizes that an impact statement could be begun when the developer’s plans were largely worked out, essentially the situation the four-part test would identify as appropriate for initiation of work on an impact statement. Second, and more important, Flint Ridge concerned federal approval of private action rather than federal initiation of its own project, at issue here. This distinction has been recognized before, Aberdeen & Rockfish R. Co. v. SCRAP, 422 U. S. 289, 320 (1975), and is recognized by the Court today. When the federal agency is initiating its own proposal, NEPA is more demanding. In such circumstances, NEPA is “intended to assure [environmental] consideration during the development of [the] proposal,” whereas when private action is to be approved, NEPA seeks only to assure such consideration “during the formulation of a position on [the] proposal submitted by private parties.” Ante, at 409 (footnote omitted).

Nor are other parts of the Court’s opinion today inconsistent with the Court of Appeals’ approach. While it is true in general, as the Court observes, that in the absence of a proposal there is nothing for an impact statement to analyze, ante, at 401-402, the observation is a generalization plainly inapplicable to situations identified by the four-part test.

The Court attempts to discredit the Court of Appeals’ conclusion that the Government contemplates a regional development plan or proposal. The Court confuses the possibility of such a plan — all that is needed to prompt application of the four-part test — with its reality. All the parties, the District Court, and the Court of Appeals are agreed that no regional plan exists in this case. But the Government concedes that a regional plan is contemplated in the sense the Court of Appeals used the term. “[I]t would be accurate to conclude that petitioners 'contemplate' regional planning (although not necessarily for the region defined by respondents) because, as the district court found . . . , and as the National Impact Statement confirms, ‘[i]t is possible a decision will be made to prepare a statement for the entire Northern Great Plains region, but the information available [to petitioners] may indicate that statements on smaller subregions, geologic structures, basin, or selected individual actions’ will be preferable.” Brief for Federal Petitioners 40 n. 32.

Thus, the Court’s conclusion that “the Court of Appeals erred in ... its factual assumptions,” ante, at 403, either misapprehends the factual assumptions necessary to the Court of Appeals’ theory or is entirely without support in the record.