Petition — Kleppe v. Sierra Club

Supreme Court brief1976

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Text

AEL RODAK, JR., CL

Nog5-559 ‘

Sure Supreme Gourt of the itd Ste —

Fitk:D

OctoBER TERM, 1975)

ocT 9 187

Kent FrRizzett, Actrna S RODAK IR, CLo0K |

-e- -=

OF THE INTERIOR, ET AL., ONERS

Srerra Cius, INc., ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEAIS FOR THE DISTRICT OF

COLUMBIA CIRCUIT

ROBERT H. BORE,

Solicitor General,

WALTER KIECHEL, JR.,

Acting Assiatant Attorney General,

FRANE H. EASTERBROOK,

Assistant to the Solicitor General,

RAYMOND N. ZAGONE,

HERBERT PITTLE,

JACQUES B. GELIN,

Attorneys,

Department of Justice,

Washington, D.C. 206530.

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wl alee ie

Aol A Nan Ca a ere a tino

INDEX

Page

SO 1

PIII, cic scenipcitnintetensdpeiidnbtpiniecinianegnmeetonss 2

ee 2

OS EE Eee 3

ee eee +

A. Federal programs for coal develop-

DIED | ahdiiiichciehcarinttenitereagitntisipinimdadiniigimeneicdianiidn +

B. The complaint and the district court’s

PIII sacks tepilatindintaicaicitentahineibiaiednesainbtndpapie 8

C. The court of appeals’ decision-_------ 9

Reasons for granting the writ---------------- 12

IS 3h a ocineieioemnne 21

IIE Dictstcutniincniniatiniitniintimdampeden 1A

IE - Ticchittariitaiaticas diltecatainininiiaitiaiinasriianagtigicnns T5A

EE, Wi ecscennlintinnineiniinenais SLA

DEE Mithdéaviieknnndndindisimntinannd 85.A

Be nT 103A

BEE, -Tinncevicdmiineeeammnnapinnn 117A

CITATIONS

Cases?

Aberdeen & Rockfish R.R. v. SCRAP, No.

73-1966, decided June 24, 1975_- 10,13, 14,15

Calvert Cliffs’ Coordinating Committee v.

Atomic Energy Commission, 449 FP, 2d

NUE cescsacidttinecaseiadsithiaaherniantesn cotdeptiedide anemia 15

Chelsa Neighborhood Ass’ns vy. Waited

States Postal Service, 516 F, 2d 378____ 16

(1)

Cases—Continued

Conservation Society of Southern Ver-

mont, Inc. v. Secretary of Transporta-

tion, 508 F. 2d 927, vacated and re-

manded sub nom. Coleman v. The Con-

servation Society of Southern Vermont,

Ine., No. 74-1413, decided October 6,

ED tecicreinctectincenterictetbahitniaaaeln

Cox Broadcasting Corp. v. Cohn, 420 U.S.

GP capiedcthndine anisbhanadynbinatniiban

Daly v. Volpe, 514 F. 2d 1106............

Friends of the Earth, Ine. vy. Coleman, 518

RE Eee ne a en

Greene County Planning Board vy. Federal

Power Commission, 455 F. 2d 412, certi-

orari denied, 409 U.S. 849__-----------

Herb v. Pitcairn, 324 U.S. 117_----------

Indian Lookout Alliance v. Volpe, 484 F.

Sierra Club v. Callaway, 499 F. 2d 982___-

Sterra Club vy. Stamm, 507 F. 2d 788_-----

Trout Unlimited v. Morton, 509 F. 2d

GEE seiiensshdalininsccitisteninlashadinteciammenaiatiatiatmees

United States v. SCRAP, 412 U.S. 669___-

Statutes:

Mineral Leasing Act of 1920, 41 Stat. 437,

as amended, 30 U.S.C. (1970 ed. & Supp.

Be OO Doin etn nncnttniiiniatininnenen

National Environmental Policy Act of

1969, 83 Stat. 852, 42 U.S.C. 4331 et seq_-

Section 102 (42 U.S.C. 4332)_-------

Section 102(2)(C) (42 U.S.C. 4332

+) | )) )

Pace

15, 16

19 _

a) |

til

Miscellaneous :

Department of the Interior, Final Environ-

mental Impact Statement: Proposed De-

velopment of Coal Resources tn the East-

ern Powder River Coal Basin of Wyo- proce

te EE A Te. eae $8

Department of the Interior, Final Environ-

mental Impact Statement: Proposed

Federal Coal Leasing Program (1975)_. 4, 6,7

—

Inthe Supreme Gourtof the Writed States

October TERM, 1975

No.

KENT FrizzE_t, AcTING SECRETARY

OF THE INTERIOR, ET AL., PETITIONERS

Srerra Crus, INc., ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE DISTRICT OF

COLUMBIA CIRCUIT

The Solicitor General, on behalf of the Acting Sec-

retary of the Interior, the Secretary of Agriculture,

and the Secretary of the Army, petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the District of Columbia Circuit.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra,

pp. 1A-73A) is reported at 514 F. 2d 856. The order

of the court of appeals granting an injunction pending

appeal (App. B, infra, pp. 7T5A-80A) is reported at

509 F. 2d 533. The order of the court of appeals re-

manding the case to the district court for supple-

mental findings (App. C, infra, pp. 81A-83A) is not

(1)

reported. The opinion of the district court (App. D,

infra, pp. 85A-101A) and its supplemental findings of

fact (App. FE, i#fra, pp. 103A-116A) are not reported.

JURISDICTION

The judgment of the court of appeals (App. F,

iufra, pp. 117A-118A) was entered on June 16, 1975.

Ly order of September 3, 1975, Mr. Justice Rehnquist

extended the time within which to file a petition for a

writ of certiorari to and including October 10, 1975.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

QUESTION PRESENTED

Federal law authorizes the Department of the Inte-

rior to permit coal mining on federal lands by private

parties under approved mining plans. In order to eval-

uate the environmental effects of its leasing program

and decide upon future actions, the Department pre-

pared a nationwide, programmatic environmental im-

pact statement. Before issuing individual leases or

upproving mining plans, the Department prepares an

environmental impact statement considering the effects

of that lease or mining plan, both individually and in

combination with other leases. When necessary or ap-

propriate, the Department also prepares impact state-

ments for areas of intermediate size, such as the 7,800

square mile ‘*‘Eastern Powder River Basin” within

W voming.

The question presented is whether, under the Na-

tional Environmental Policy Act, a court may inter-

vene in this decision making process to require federal

agencies to engage, as well, in “regional” planning and

to issue an additional impact statement for a four-

state area so long as they continue ‘‘contemplating”

private applications, even though there neither is nor

will be a recommendation or report on ver proposal

for major federal action with respect to that four-

state area.

STATUTE INVOLVED

Section 102 of the National Environmental Policy

Act of 1969, 83 Stat. 853, 42 U.S.C. 4332, provides in

relevant part:

(2) all agencies of the Federal Government

shall— .

* * * * +

port 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 pro-

posed action,

(ii) any adverse environmental effects

which cannot be avoided should the pro-

posal 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

(v) anv irreversible and irretrievable com-

mitments of resourees which would be in-

volved in the proposed action should it be

implemented.

STATEMENT

A. Freperat Procrams ror Coat DEVELOPMENT

As much as 80 percent of the Nation’s coal reserves

are under land owned by the federal government, or

under land that can be mined effectively only after

obtaining rights of way across federal land.* The

Mineral Leasing Act of 1920, 41 Stat. 437, as amended,

30 U.S.C. (1970 ed. and Supp. I11) 181 et seq., au-

thorizes the Department of the Interior to dispose of

certain minerals by leasing to private firms and indi-

viduals, for terms of years, the rights to develop and

extract coal, oil, and other minerals that lie within the

federal domain and Indian lands. As privately owned

coal deposits become exhausted or more expensive to

mine, and as the Nation’s energy needs grow, coal un-

derlying federal lands will become more and more

important as a source of energy.’

The development of these vast reserves of coal will

inevitably affect the quality of the human environment

in the vicinity of the mines. The federal government

not only has the duty to superintend the development

* Department of the Interior, Final Environmental Impact

Statement: Proposed Federal Coal Leasing Program 1-7 (1975)

(hereafter Vational Impact Statement). A copy of the National

Jim pact Statement has been lodged with the Clerk.

* See ational Impact Statement, supra, n. 1, at 1-24 to 1-28.

of its mineral resources, but also has the duty, articu-

lated by the National Environmental Policy Act

of 1969, 83 Stat. 852, 42 U.S.C. 4331, et seq. (NEPA),

to probe the environmentai consequences of its pro-

posed actions and to develop its resources in a manner

that holds to a minimum the disruption of the

environment.

In order te fulfill both of these duties, federal

agencies, cooperating with each other, with state gov-

ernments, and with private interests, began to take a

careful look at the effects of coal development in the

northern Great Plains, where most of the federal coal

resources are located. On May 26, 1970, the Depart-

ment of the Interior initiated the North Central Power

Study, which was designed to “‘investigate the poten-

tial for coordinated development of the electric power

supply in the north central United States’? (App. D,

tufra, p. 89A). “The responses received did not indi-

cate that a plan for the coordinated development could

be formulated”’ (id. at 90A), and the Study was ter-

minated in 1972.

The Department of tne Interior also began a study

of potential water resources in Montana and Wyo-

ming, and the extent to which these resources would

be adequate for, and affected by,,dgvelopment of coal

(ibid.). This study was abet on June 30, 1972,

when the Department initiated the Northern Great

Plains Resources Program, a much more comprehen-

sive investigation of the social, economic and environ-

mental aspects of coal development. That study was

designed to provide much-needed information that

could guide the federal government in decision making.

“The study is to provide a tool for planning at all

levels of government rather than to develop an actual

plan”’ (id. at 93A). The final interim report of this

Program was issued on August 1, 1975.

In order to avoid making piecemeal decisions while

it was gathering environmental information and for-

mulating a national coal leasing program, the Depart-

ment of the Interior announced on February 17, 1973,

that it would issue no more coal prospecting permits

and, with a few carefully cireumscribed exceptions, it

would issue no more coal leases until it bad reevalu-

ated its coal leasing policies and conducted a full en-

vironmental study (id. at 90A-92A). The Department

simultaneously announced that it would prepare an

environmental impact statement assessing the effects

of its coal leasing program on a nationwide basis and

undertaking to formulate a new leasing program more

sensitive to environmental values. A draft of this

national programmatic impact statement was issued

in 1974. It was rewritten in response to comments and

reissued in final form on September 19, 1975.° The

final impact statement describes “the total proposed

Departmental coal leasing program’’‘ and announces

the creation of a multistep Energy Minerals Activity

Recommendation System * that takes into account both

the Nation’s need for coal and the need to preserve

the quality of its environment.

®* Valional Impact State ment, supra, i. 1.

* Jd. at 1-3.

* Jd. at 1-7 to 1-23.

Under the Energy Minerals Activity Recommenda-

tion System new coal leases will be made available only

when necessary and, even then, “[a]ll coal lease sales

would be carefully analyzed to avoid unacceptable en-

vironmental impacts or unacceptable impacts on other

uses resulting from development of the proposed

leases.’’* The central principle balancing the need for

coal against the environmental consequences of mining

is that “[l]easing will not take place where environ-

mental damages would be unacceptable.’’’

The national programmatic environmental impact

statement has surveyed the general environmental

consequences of coal mining. The environmental

consequences of each particular mine, however, will

have to be understood in order to implement the deci-

_ Sion that some deposits of coal will not be leased when

the environmental consequences would be too great.

Individual environmental impact statements therefore

are prepared for each lease,* and the statements for

successive leases or mining plans assess the cumulative

effects of all coal development within the area affected.

In many cases the Department of the Interior will

prepare a broader impact statement assessing the ef-

fects of coal development in larger parts of the

country: “the region covered will be determined by

basin boundaries, drainage areas, areas of common

reclamation problems, administrative boundaries,

® Jd. at 1-5.

* Jd. at 1-13.

* A more complete description appears in éd. at 144.

areas of economic interdependence, and other relevant

factors.” ° One such impact statement already has been

prepared, and was issued in final form in 1974; this

statement, consisting of 6 volumes and 3075 pages,

covers the Eastern Powder River Coal Basin of

Wyoming, an area of approximately 7,800 square

miles that contains more than one quarter of the Na-

tion’s strippable coal reserves and three quarters of

the coal reserves of the northern Great Plains.”

B. Tue ComrLaInt AND THE District Covurr’s

DECISION

Respondents Sierra Club and others brought suit,

seeking declaratory and injunctive relief against any

approval of leases, rights of way or mining plans in

what their complaint called the “Northern Great

Plains Region” until the federal government had pre-

pared a comprehensive impact statement with respect

to that “Region”? (App. D, infra, p. 85.A)." The dis-

trict court, after recounting the status of the environ-

mental investigations under way and the moratorium

"Td. at 1A.

* Department of the Interior, Final Environmental Impact

Statements Propose d Deve lopnr nt of Coal Resources in the Last-

cru Powder River Coal Basin of Wyoming (1974). See I id. at

1-21 to I-22 (estimating that the basin contains 12.4 billion tons

of economically recoverable coal out of a national total of 45 bil-

lion tons of coal economically recoverable by strip mining).

* The “Northern Great Plains Region” defined by the complaint

includes northeastern Wyoming, eastern Montana, western North

Dakota, and western South Dakota (App. D, éafra, p. SSA). This

“Region” encompasses some 90,000 square miles (App. A, infra,

p. AS nm. 4).

on coal leases, concluded that as of the date of its opin-

ion (February 1974) the federal government was en-

gaged in decision making on a national basis, and that

there was no separate program taking place, or

planned to take place, in the area defined by respond-

ents as the “Northern Great Plains Region”’ (App. D,

infra, pp. 95A, 96A, 100A). Therefore, the court con-

cluded, no impact statement for the ‘““Region”’ need be

prepared.

The district court later entered supplemental find-

ings in response to a remand by the court of appeals

(App. C, fra, pp. 81A-83A). These findings (App.

KE, infra, pp. 103A-116A) brought the record up to

date as of November 25, 1974.

C. Tur Court or Apreats’ Decision

Shortly after the district court entered its supple-

mental findings, the court of appeals issued an injune-

tion pending appeal (App. B, infra, pp. T5A-76A).

This injunction prohibited the Secretary of the Inter-

ior from taking any action “concerning the mining

plans and railroad rights-of-way set forth in the East-

ern Powder River Coal Basin Environmental Impact

Statement” (id. at 76A). The court of appeals did not

conclude that the Eastern Powder River Basin impact

statement is inadequate; indeed, its adequacy has net

been challenged. It recited only that “such an injune-

tion is required to maintain the status quo pending

disposition of this appeal”’ (id. at 75A). Judge Mac-

Kinnon dissented (id. at T6A-80A).

Six months later a divided panel of the court of

appeals reversed the district court (App. A, infra, pp.

1A-73A). The court held that, although petitioners

have not yet violated NEPA, they will do so if they

continue “contemplating” federal action in the “ North-

ern Great Plains Region’’ without preparing an envi-

ronmental impact statement with respect to that part

of the country.” See App. A, infra, pp 2A, 47A-48A.

The court of appeals did not disturb the district

coult’s finding that there was no existing federal pro-

gram or proposal calling for regional development. It

therefore had to consider respondents’ argument that

the various private requests for leases and rights of

way were so related that the government should be

required to develop a regional plan accompanied by a

comprehensive impact statement (id. at 28A-32A).

The court of appeals indicated that respondents’ argu-

ments probably were correct (id. at 31A-32A), but

concluded that it need not explicitly so hold. It decided

instead that, by engaging in regional studies and anal-

yses such as the Northern Great Plains Resources

2 The court of appeals’ decision is interlocutory in the sense that

it does not finally dispose of this litigation. However, it laid down

principles of law that preordain the final outcome, and that will

prolong this case (and the federal decision making process) by

many years. On the other hand, if the court of appeals’ judgment

is reversed, the case will come to an end immediately. We submit

that the court of appeals’ judgment possesses suflicient finality

that review at this time is both necessary and appropriate. See

Aberdeen & Rockfish R. R. v. SCRAP, No. 73-1966, decided June

24, 1975, slip op. 22-25; Cox Broadcasting Corp. v. Cohn, 420 U.S.

469, 476-487 ; Larson v. Domestic & Foreign Commerce Corp., 337

U.S. 682, 685, n. 3.

Program, and by receiving (albeit not granting) appli-

eations for leases, the government had demonstrated

‘‘attempts’’ “to control development’’ of coal resources

in the area, which establish that a “regional program’”’

“is contemplated” by the government (id. at 334A,

5S9A; emphasis added). This ‘‘contemplation”’ in turn

triggers the impact statement requirement of NEPA,

the court held, because an impact statement “must

precede” (id. at 42A) any vecommendation or report

on a proposal for major federal action.

The court recognized that, despite its conclusion that

the government is “contemplating”’ regional develop-

ment, the ‘‘Government has not yet finally settled on

its role’’ (id. at 45A). The court therefore remanded

the case to the district court and directed the federal

agencies to determine whether they would prepare an

impact statement or whether “contrary to expecta-

tions’’ they would cease following the course the court

thought they had been following (id. at 47A-50A). If

the government decides not to prepare an impact

statement for the region described by respondents, the

court held, respondents “may present again to the Dis-

trict Court their theory that the geographic, environ-

mental, and/or programmatic interrelationship of

activity in the Region mandates such a statement’’

(id. at 50A). Sinee the court already has indicated (id.

at 29A-32A) that respendents’ contention is correct, it

follows that the district court would be compelled to

direct the government to prepare an impact statement

if it declines the court of appeals’ invitation to do so

voluntarily.

The court of appeals continued in effect its tempo-

rary injunction pending appeal, even though it once

more conceded that the “Secretary of the Interior has

shown concern ever developing the coal reserves of

the Province in a responsible manner consistent with

NEPA” (id. at 4A-5A).

Judge MacKinnon dissented, observing that the

“record * * * does not establish the existence of any

comprehensive regional program of the type * * *

which could justify requiring the preparation of a

regional environmental impact statement at this time”

(id. at 544A). Because there was neither federal action

with respect to the region, nor a proposal for such

action, Judge MacKinnon “conciude[d] that a regional

environmental impact statement * * * is not pres-

ently required * * * [and found] no need to remand

the case for further proceedings”? (id. at 52A-53A).

REASONS FOR GRANTING THE WRIT

This is the sixth vear that NEPA has been in effect.

During that entire period the Department of the In-

terior, and other federal agencies, have been giving

careful scrutiny to the environmental effects of coal

mining. Several extensive environmental, economic

and social studies have been carried out; a national

programmatic impact statement has been prepared;

individual, loeal, and regional impact statements have

been prepared. For almost three years there has been

a virtual moratorium on the issuance of new leases.

Now that the federal government is preparing to put

the carefully designed Energy Minerals Activity

Recommendation System into operation and remove

the moratorium, it has been confronted with a decision

and injunction that could delay its program for several

years, while it prepares vet another environmental im-

pact statement covering a “Region” of respondents’

choosing.

The court of appeals’ decision implies that groups

other than respondents will be able to compel the

federal government either to engage in “regional

planning’’ or to issue impact statements with respect

to regions defined by them, whether or not the govern-

ment has engaged in activity that has peculiar effects

upon that “region.’’ And, of course, the court’s de-

cision will require lengthy litigation in the district

court on remand and will almost certainly lead to re-

peated appeals, injunctions, and threats of both over

an extended period of time. The decision is of sub-

stantial importance to the Nation’s energy resources

development program, and conflicts with the language

of NEPA, a decision of this Court, and decisions of

other courts of appeals.

1. Section 102(2)(C) of NEPA provides that fed-

eral agencies shall 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 concern-

ing the effects of, and alternatives to, that proposal.

As the Court held in Aberdeen & Rockfish R.R. v.

SCRAP, No. 73-1966, decided June 24, 1975, slip op.

26 (SCRAP IT), this language means that “the time

at which the agency must prepare the final ‘statement’

is the time at which it makes a recommendation or

report on a proposal for federal action.”’

592-551—75——_2

NEPA requires an impact statement only when the

federal agency makes, recommends, or reports upon a

proposal for major federal action. In SCRAP II pri-

vate railroads had proposed to the Interstate Com-

merce Commission that the Commission approve an

increase in the rates the railroads would be allowed

to charge; the Court held that no impact statement

was required until the Commission made its report

upon that private proposal. Here, to the extent there

are any proposals for major federal action with

respect to the region defined by respondents, they are

private proposals for the federal government to issue

leases or approve mining plans or rights of way; as

was the case in SCRAP IT, no impact statement is

necessary until the government makes a recommenda-

tion or report on those private proposals, and the De-

partment of the Interior already has prepared (or

will prepare) impact statements with respect to every

major lease or mining plan approved by it.”

As we understand the court of appeals’ opinion, it

rests upon a simple misunderstanding concerning the

timing established by NEPA. The court variously

states that an impact statement must accompany the

proposal for federal action (App. A, infra, p. 48A)

and that an impact statement must precede any recom-

mendation or report on a proposal for federal action

(id. at 42A; 47A, n. 35). If either version were correct,

it might have been necessary for the court of appeals

* This case does not involve the question whether an impact

statement must be prepared when the government engages in

major physical action for which there has never been any public

proposal, recommendation, or report,

to undertake an inquiry into whether the federal gov-

ernment’s “contemplation”? of taking action in the

future had ripened into a “proposal,’’ and to!*balance’”’

the factors showing “ripeness” and those of contrary

import (see id. at 42A-50A). It might have been neces-

sary, as the court of appeals thought, to remand for

further consideration of this ‘‘ripeness” question. But

NEPA provides that the impact statement shall ac-

company the recommendation or report, not “precede”

it; there is no “ripeness’’ question to address where,

as here, no one contends that there has been a recom-

mendation or report on a relevant proposal with

respect to the “Region” as a whole.”

2. The opinion of the court of appeals appears to

conclude that federal “contemplation” of certain ac-

tions must be accompanied by an impact statement.

The court went on to hold that such a statement must

discuss environmental consequences throughout the

**Northern Great Plains Region” defined by respond-

ents (App. A, infra, pp. 47A-48A). If it is assumed

arguendo that some sort of impact statement is re-

quired, the question of the appropriate scope of that

** The court of appeals relied upon Calvert Cliffs’ Coordinating

Committee v. Atomic Energy Commission, 449 F. 2d 1109

(C.A.D.C.), and Conservation Society of Southern Vermont, Ine.

v. Secretary of Transportation, 508 F. 2d 927 (C.A. 2), vacated

and remanded sub nom. Coleman v. The Conservation Society of

Southern Vermont, Ine., No. 74-1413, decided October 6, 1975, to

support its understanding of the appropriate time to issue an im-

pact statement. But Calvert Cliff's was expressly disapproved in

SCRAP I (see slip op. at 26, n. 20), as was Greene County Plan-

wing Board v. Federal Power Commision, 455 F. 2d 412 (C.A. 2),

certiorari denied, 409 U.S. 849, upon which Conservation Society

was based.

statement is one that has generated a conflict among

the circuits requiring resolution by this Court.

Other circuits, when approaching the question of

the scope of a particular impact statement, have held

that a statement is sufficient if it discusses a single

project of “independent utility” or if it discusses

all of the activities to which resources are irretrieva-

bly committed by the project for which the statement

has been prepared.” The court of appeals, relying

upon Conservation Socicty, supra, disagreed with these

cases and held that an impact statement must assess,

in a comprehensive manner, all actions and environ-

mental impacts that might be related to the action

proposed,

Although the court of appeals stated that its re-

quirement of comprehensive consideration did not con-

flict with the “independent utility” and “foreclosure of

alternatives” rules used in ether cireuits (id. at 39A-

41A, n. 29), we submit that the conflict is obvious.

Single leases have “independent utility” and so, under

the decisions of other courts of appeals, could properly

be studied alone. Each lease “irretrievably commits”

no more resources than are involved in bringing the

mine to production, for the first lease can be commer-

cially feasible whether or not other leases are granted:

* See. ¢.g.. Trout Unlimited vy. Morton, 09 F. 20 1276 (CLA. 9);

Sierra Club vy. Stamm, 507 F.2d 788 (C.A. 10) ; Sierra Club v. Cal-

laway, 499 F. 2d 982 (CLA. 5); Zndian Lookout Alliance vy. Volpe,

484 F.2d 11 (CLAS).

™ See. ¢.g.. Daly v. Volpe, 514 F. 2d 1106 (CLA. 9): Friends of

the Kurth, lne.v. Coleman, S18 F.2d 323 (CLA. 9) ; Chelsa Neigh-

borhood Ass'ns y. United States Postal Service, 516 F. 2d 378

(CLA, 2).

PERSE ee ee ee —

smaller impact statements on individual mines or on

intermediate areas such as the Eastern Powder River

Basin therefore would be appropriate in other circuits.

The court of appeals distinguished the cases in other

circuits on the ground that those cases ‘involved the

propriety of an injunction against an individual proj-

ect pending completion of a regional [impact state-

ment] or other study,” and that ‘‘[n]Jone of the cases

involved a direct challenge to the need for a regional”

impact statement (ibid.). Judge MacKinnon correctly

answered that this ‘‘is a classic example of a distine-

tion without a difference” (id. at 654A). Respondents

have requested the court to enjoin the granting of

leases and other coal resource development actions

pending completion of an impact statement covering

the **Region” defined in their complaint, and the

court of appeals has issued such an injunction. More-

over, each of the cases we have collected at notes 15

and 16, supra, considered and rejected a contention

that an impact statement was too narrow in scope be-

cause it did not assess the effects of allegedly “re-

lated” projects covered by a single plan for develop-

ment. We submit that there is no practical difference

between the question posed and answered by the court

of appeals in the instant case, and the question as

framed by the other courts of appeals.

3. The court of appeals held that the federal govern-

ment had not vet violated NEPA—although, the court

surmised, it would do so momentarily unless it either

ceased “contemplating” action or provided a regional

impact statement. Having concluded that the defend-

ants before it were in compliance with NEPA, the

court of appeals should have affirmed the district

court’s summary judgment in favor of petitioners. It

was not at liberty to reverse, remand, issue an exhaus-

tive (but apparently advisory) opinion governing pro-

ceedings still te come, continue in effect an injunction

pending appeal, and retain jurisdiction over peti-

tioners simply out of the expectation that, in the

future, they might violate NEPA. Cf. Herb v. Pit-

cairn, 324 U.S. 117, 126:"[O]ur power is to correct

wrong judgments, not to revise opinions.’”? The court

of appeals should have held that the district court's

judgment—that petitioners have not violated NEPA—

Was correct, and accordingly affirmed,

4. Even if an impact statement sometimes must be

issued when federal agencies are “contemplating”’

action, and even if such a statement must assess the

environmental impacts of all “related’’ activities

throughout the relevant “region,’’ the decision of the

court of appeals is incorrect. The choice oi the rele-

vant region is, in the first instance, for federal officials,

to be upset only if their choice is arbitrary, capricious

or an abuse of discretion. The court of appeals agreed

with these principles (App. A, infra, pp. 31A, n. 25;

32A; 45A-46A, n. 33; 48A, n. 36). How, then,

could the court conclude that it was an abuse of dis-

cretion to select for scrutiny the Eastern Powder

River Basin, an area containing more than a third of

the coal reserves economically recoverable by surface

mining in the northern Great Plains? The court of

appeals did not explain why it was an abuse to select

for ‘‘regional”’ study an area other than the “Northern

Great Plains Region”’ defined by respondents. We do

not think this omission can be explained unless the

court was, in fact, compelling the government to en-

gage in “regional’’ planning more broadly defined, the

very course it purported to eschew (?d. at 30A-32A).

That course, in turn, would raise fundamental prob-

lems under United States v. SCRAP, 412 U.S. 669

(SCRAP 1), which held that NEPA does not repeal

by implication any other statutes. The Mineral Leas-

ing Act of 1920 grants to the Department of the In-

terior substantial discretion to decide how and when

coal leases will be awarded; the court of appeals ap-

parently has held that the government now must exer-

cise that discretion on a regional basis rather than

lease-by-lease as the Act provides.”

5. The most important flaw in the court’s reasoning

may be its statement that, by granting leases and

receiving mining plans pertaining to the northern

Great Plains, the government’s ‘‘role is one of con-

trolling development of the region’? (App. A, infra,

pp. 47A-48A). That statement, of course, begs the

7 Although the court of appeals indicated that wnless the gov-

ernment ceased “contemplating” issuing leases the government

would be required to issue a regional impact statement for the

“Northern Great Plains Region” defined by respondents, it did not

explain why it selected that “region” as opposed to some alterna-

tive “region.” Since there are almost an endless number of

“regions” available for study, the court's opinion creates two possi-

bilities: either the “region” studied will be whatever region is

selected by the first groups to file suit, or, even after the govern-

ment prepares the impact statement sought by respondents, still

other groups can file suits seeking impact statements for still other

“regions” in the Great Plains. Neither result is desirable; neither is

required by NEPA.

question of what region is being “controlled.’’ But

what is more, it necessarily involves the untenable

assumption that the federal government must have

some region in mind, and that the task for the court is

to direct the government to file an impact statccent

with respect to whatever region that may be. The court

of appeals ignored the possibility that the federal

coal leasing program is national rather than regional.

The government is not attempting to control the

development of particular “regions”; it is attempting

to control the development of coal on federal lands,

Which are themselves scattered throughout the coun-

try. Cual development creates ‘‘ regional development”

only because some federal land holdings are close to

other holdings, and the effects of developing some

tracts may be felt on proximate tracts. That degree

of interdependence, however, and the desire of the

federal government to learn more about it through

tools such as the Northern Great Plains Resources

Program, hardly indicates that a plan for “regional

development of the Northern Great Plains” (id. at

533A), or of any other region, is either “contemplated”

or under way. It simply demonstrates that the federal

zovernment is deeply interested in the local effects of

its national policies.“ NEPA does not require, how-

'* One of the ironic effects of the decision below is that federal

agencies would be less likely to engage in sophisticated studies such

as the Northern Great Plains Resources Program, lest a court

erroneously conclude from the study that the government is “con-

templating” major federal action with respect to the “region”

studied and, therefore, is obliged to issue a “regional” impact

statement.

ever, that an impact statement accompany such shows

of interest, however abiding the interest may be. We

submit that the program of impact statements for in-

dividual mines, local groups of mines, and the nation

as a whole, adequately fulfills the commands of Sec-

tion 102(2)(C). It is not necessary to suspend the

development of coal resources for several years more

while the government prepares a “regional” impact

statement as the price of continued ‘‘contemplation.”

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully subesitted.

Rosert H. Bork,

Solicitor General.

WALTER KIECHEL, JR.,

Acting Assistant Attorney General.

FrRaNK H. EASTERBROOK,

Assistant to the Solicitor General.

RaYMOND N. ZAGONE,

Hersert PITT e,

Jacguss B. GELIN,

Attorneys.

OcToBER 1975.

APPENDIX A

United States Court of Appeals for the District of

Columbia Cireuit

SrerRA CLUB ET AL., APPELLANTS

Rocers C. B. Morton, SECRETARY OF THE UNITED

StaTEs DEPARTMENT OF THE INTERIOR, ET AL.

(No. 74-1389)

United States Court of Appeals, District of Columbia

Circuit

(Argued Dec. 17, 1974; Decided June 16, 1975)

Before Bazeton, Chief Judge, and Wricut and

MacKinnon, Cireuit Judges.

Opinion for the court filed by Cireuit Judge J.

SKELLY WRIGHT.

Dissenting opinion filed by Cireuit Judge

MacKInNon.

J. SKELLY WRIGHT, Circuit Judge:

Appellants brought suit in District Court seeking

declaratory judgment, injunction, and mandamus

against the federal appellees, the Departments of the

Interior, the Army, and Agriculture, alleging that

appellees had violated Section 102(2) of the National

Environmental Policy Act (NEPA), 42 U.S.C. § 4332

(1a)

(2), by allowing development of coal resources in the

Northern Great Plains without issuing a comprehen-

sive environmental impact statement (EIS) for the

region. We must decide whether appellees’ attempts

to control development of coal resources in four west-

ern states constitute a major federal action within

the meaning of Section 102(2), and, if so, whether

those attempts are sufficiently developed to require

the filing of a comprehensive regional impact state-

ment. Answering the first question in the affirmative,

we reverse the District Court’s grant of summary

judgment for the federal appellees and remand this

ease to give the federal appellees the opportunity to

decide the second.

The Northern Great Plains Province (the Prov-

ince), which covers northeastern Wyoming, eastern

Montana, western North Dakota, and western South

Daketa, and extends southerly through strips of Ne-

braska and Colorado, is one of the world’s richest

basins of relatively untapped coal reserves.’ Most of

the coal in the Province is located in the Fort Union

and Powder River formations, which occupy the four

northernmost states. The coal resting under those

plains is highly desirable because it is of low sulphur

eontent, which makes it environmentally preferable,

and because it is relatively close to the surface, which

makes it readily accessible by strip mining. Since some

85 per cent of the nation’s low-sulphur coal reserves is

located on public land under the jurisdiction of the

Secretary of the Interior, prudent development of

this valuabie national asset is largely subject to federal

initiative and control. In recent years, as concern

» Sixty-three counties in Wyoming, Montana, and North Da-

kota hold 48% of the nation’s total coal reserve. Northern Great

Plains Resources Draft Interim Report (hereinafter NGPRP

Draft Interim Report) at I1I-1.

ee ee ee

about greater national self-sufficiency in energy mat-

ters has mounted, steps toward such development in

the Province have been taken. But while the coal

reserves of the Province are in great demand, both

over the long and the short term,* the massive develop-

ment of the area necessary to secure, utilize, and

deliver those resources necessarily entails broad envi-

ronmental consequences. In addition to the obvious

environmental effects of strip-mining acres of now-

fertile land, development would also affect the region’s

water supply and quality, air quality, wildlife, popu-

lation distribution and composition, and economic

structure. These effects would be caused not only by

the mines themselves, but by the power plants, coal

gasification plants, railroads, aqueducts, pumping

plants, reservoirs, dams, and new housing that would

necessarily accompany the strip mines.

Needless to say, such development under federal

auspices demands compliance with NEPA’s dictate

han an impact statement accompany all proposals for

‘‘major Federal actions significantly affecting the

quality of the human environment * * *.’’ Seetion

102(2)(C), 42 U.S.C. § 4882(2)(C).° See generally

* For at least the short term, increased use of coal is said to

he the best way to ward off an energy crisis. Affidavit of Ralph

E. Lapp, Ph. D., App. 286. Over the long term, at present

energy growth rates the nation’s need for coal will triple by the

year 2000. Brief of federal appellees at 6.

$In pertinent part, § 102(2) of NEPA, 42 U.S.C. § 4332(2)

(1970) provides:

“{ AJL agencies of the Federal Government shall—(A) utilize a

systematic, interdisciplinary approach which will insure the in-

tegrated use of the natural and social sciences and the environ-

mental design arts in planning and in decisionmaking which

may have an impact on man’s environment;

* * * * *

“(C) include in every recommendation or report on proposals

for legislation and other major Federal actions significantly af-

Scientists’ Institute for Public Information, Ine. v.

AEC (SIPI), 156 U.S. App. D.C. 395, 481 F. 2d 1079

(1973) ; Natural Resources Defense Council v. Morton,

148 U.S. App. D.C. 5, 458 F. 2d 827 (1972); Greene

County Planning Board yv. FPC, 2 Cir., 455 F. 2d 412

(1971), cert. denied, 409 U.S. 849, 93 S. Ct. 56, 34

L. Ed. 2d 90 (1972); Calvert Cliffs’ Coordinating

Committee, Inc. v. AEC, 146 U.S. App. D.C. 33, 449

F. 2d 1109 (1971) The Secretary of the Interior has

shown concern over developing the coal reserves of

fecting the quality of the human environment, a detailed state-

ment by the responsible official on—(i) the environmental im-

pact of the proposed action, (ii) any adverse environmental

effects which cannot be avoided should the proposal be imple-

mented, (iii) alternatives to the proposed action, (iv) the re-

lationship between local short-term uses of man’s environment

and the maintenance and enhancement of long-term produc-

tivity, and (v) any 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 Fed-

eral official shall consult with and obtain the comments of any

Federal agency which has jurisdiction by law or special exper-

tise with respect to the environmental impact involved, Copies

of such statement and the comments and views of the appropri-

ate 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 ;

“(D) study, develop, and describe appropriate alternatives to’

recommended courses of action in any proposal which involves

unresolved conflicts concerning alternative uses of available

resources| . | ;

~ OES EOE A eee

the Province in a responsible manner consistent with

NEPA. NEPA, he recognized, might demand com-

prehensive development of the Province and a more

comprehensive analysis of environmental impact

therein than would be produced by impact statements

designed for individual mines. Thus on May 26, 1970

the Secretary initiated the North Central Power

Study, an attempt to coordinate energy development

throughout the North Central States. While unfavor-

able private response to the Study resulted in its ter-

mination, Finding of Fact (Fdg.) 18, Appendix

(App.) 237, the Secretary continued to acknowledge

that development should be based upon comprehensive,

rather than piecemeal, action. Affidavit of Secretary

Morton, App. 194. Accordingly, on June 30, 1972 he

ordered a massive federal-state inter-agency study,

now known as the Northern Great Plains Resources

Program (NGPRP), to assess the potential social,

economic, and environmental impacts that develop-

ment of the Province would cause. Secretary Morton

wrote to his Assistant Secretaries:

The vast reserves of coal in the Fort Union Re-

gion of Montana, North Dakota, South Dakota

and Wyoming provide an excellent opportunity

for this Department to demonstrate how a re-

sponsible Federal agency can manage resource

development with proper regard for environ-

*There are currently 14 mining leases in operation in the

Province (four in Montana, six in North Dakota, four in

Wyoming) covering a total of 90,000 square miles. Fdgs. 8, 11,

App. 235,236. All are operating under federally-approved min-

ing plans and under state-approved reclamation plans. /d. While

it is not clear from the District Court findings, it appears that

all of these leases were issued, and the mining plans approved.

prior to the effective date of NEPA.

The Government has also issued coal prospecting permits cov-

ering federal lands and four Indian reservations. Fdg. 10, App.

236.

mental protection. It is important that we not

lose this opportunity by engaging in single-pur-

pose studies which are incapable of developing

comprehensive information or by taking piece-

meai actions which restrict our future options.

App. 73. The NGPRP was designed to “coordinate on-

going activities and build a policy framework which

might help guide resource management decisions in the

future.’’ News Release, Oct. 3, 1972, App. 201. Pend-

ing its completion, the Secretary suspended a project,

the Montana-Wyoming Aqueducts Study, designed to

assess the availability of water for development of the

vast coal resources. Fdg. 17, App. 194.

In addition to concern about development of the

Province, the Secretary was also concerned about na-

tional development of a coal-leasing policy.’ In early

1973 he determined that a national impact statement

on proposed federal coal leasing was necessary, and

that pending issuance of this coal programmatic state-

ment, no coal leases would be issued except pursuant

to a short-term coal-leasing policy announced to the

publie on February 17, 1973.° News Release, Feb. 17,

* Since the enactment of the Mineral Leasing Act of 1920, 30

U.S.C. $181 et seq. (1970), federal coal lands have been avail-

able for leasing only, rather than for sale.

® The suspension policy does not apply to federal approval of

coal leasing plans on Indian lands. In fulfillment of its fiduci-

ary responsibilities over those lands, the Department of the In-

terior will approve leases where the tribal or individual Indian

landowner desires to dispose of the minerals, where the terms

and conditions of the lease are in the best interest of the Indian

landowner, where appropriate environmental safeguards 2re im-

posed on the lessee, and where NEPA’s requirements have been

met, Affidavit of Secretary Morton, App. 193; see App. 199;

Fdg. 22, App. 240. Since the national coal leasing suspension

order of Feb. 17, 1973, however, the Department has not ap-

proved any coal leases on Indian lands within the Province.

Supp. Fdg. 3.

tt ee ame en

ae ee Seid fle wel Me nm

1973, App. 196; Affidavit of Secretary Morton, App.

191; Fdgs. 15-18, App. 237-239. The purpose of the

coal programmatic statement, now in draft form, is

“to provide a national overview of the impact of the

entire Federal coal leasing program on the quality of

the human environment.”’ Affidavit of Secretary Mor-

ton, App. 191; Fdg. 15, App. 237-238. It will supple-

ment, as necessary, “appropriate impact reporting on

a regional basis or for individual leases.” News Re-

lease, Feb. 17, 1973, App. 197. Besides suspending issu-

ance of leases, the Secretary also determined to sus-

pend issuance of any coal prospecting permits until

further notice, Secretarial Order 2952, February 13,

1973, App. 198.

While these suspension policies are nationwide, they

apply only to federal approval of mine leases and

prospecting permits. As was suggested above, however,

development of the Northern Great Plains to aceom-

modate the coal mines is not so limited in scope. In

recognition of the broader, vet inescapably environ-

mentally related, activities accompanying coal devel-

opment, the Secretary has sharply restricted federal

approval of any related action in the Province pend-

ing issuance of the NGPRP interim report. According

to Secretary Morton,

the granting or approval of leases, special use

permits and all types of rights-of-way across

publie lands, the delivery and sale of water and

approval of mining plans relating toe coal devel-

opment in the Northern Great Plains will be

heid in abeyance pending the availability of the

interim report from the NGPRP study or sub-

mitted to the Under Secretary for review and

concurrence prior to execution.

Affidavit of Secretary Morton, App. 194: see Fdg. 25,

App. 241. The draft interim NGPRP report was is-

592-551—T5- —3

sued September 27, 1974, Supp. Fdg. 5, and the final

interim report is expected to issue in February 1975.

Answer of Secretary Morton to Plaintiff’s Revised

Supp. Interrogatories, Ans. No. 24 (hereinafter Supp.

Int. to Secretary Morton).

Despite Interior’s announced moratorium on leases,

prospecting permits, and other activities subject to its

approval in the Province, some federal activity con-

tinues in the Northern Great Plains. Other federal

agencies, all appellees here, are to some extent respon-

sible. The Department of Agriculture has jurisdiction

over issuance of rights-of-way over lands within the

national forests, and the Army Corps of Engineers

has jurisdiction over the navigable rivers. While both

agencies refused to consider applications for permits

or rights-ofway prior to June 30, 1974, they are now

both accepting applications and willing to grant them.

Agriculture has received four applications for rights-

of-way over lands in the Northern Great Plains with-

in the national forests,’ and the Corps of Engineers

has pending one application for a right-of-way over

navigable rivers within the region.” Moreover, since

June 30, 1974 the Corps has issued two permits for

* All four applications are for rights-of-way over the Thunder

Basin National Grasslands in Wyoming: by Wycoalgas Co.

(water transmission line right-of-way) ; Rochelle Coal Co. (con-

veyor belt right-of-way); Atlantic Richfield Co. (plant site and

railroad spur right-of-way); and Rochelle Coal Co. (railroad

spur right-of-way). No action will be taken on any of these

applications until the Forest Service of the Department of

Agriculture determines whether an impact statement is neces-

sary. If so, of course, no action will be taken until the impact

statement is completed. Supp. Fdg. 4. .

* The pending application is from the Minnkota Power Corp.

for a transmission line crossing the Missouri River near Price,

North Dakota. /d.

structures in the navigable waters within the North-

ern Great Plains,” and has pending two applications

for such permits.”

More importantly, the announced restrictions placed

by Interior on development of the Province have some

large loopholes through which federal activity can

proceed. In summary form, they are as follows: (1)

the short-term leasing program applies only to new

leases and does not interfere with the Department's

ability to approve mining plans for pre-existing leases

in the area; (2) some leases may be issued under the

short-term leasing policy itself; and (3) federal ac-

tivity in the Province is not really suspended pending

issuance of the NGPRP, but rather can continue upon

the approval of the Under Secretary. The first and

third of these loopholes are the largest. In the states

of Wyoming, Montana, North Dakota, and South

Dakota (the four-state area)," there| are 95 outstand-

ing leases with a total acreage of 196,652 acres not

subject to an approved mining plan; likewise there

are nine outstanding leases on Indidn lands with a

total of 76,650 acres. Supp. Int. to Serretary Morton,

* Permits were issued to the following: Square Butte Electric

Co. (water intake structure for generating p}ant cooling, near

Bismarck, North Dakota, issued Sept. 23, 1974)\|: Ottertail Power

Co. (removal of water intake structure for 4bandoned power

plant near Washburn, North Dakota. Issued Oet. 15, 1974). Jd.

*° Pending applications are from: Michigan-Wisconsin Pipe-

line Co. (water intake structure for coal gasification plant near

Beulah, North Dakota); Consolidated Development Co. (water

intake structure out of Oahe Lake for multiple purposes). /d.

** Some of the interrogatories are addressed to this four-state

area rather than to the precise confines of the Province. See

Supp Int. to Secretary Morton. While another coal region. the

Rocky Mountain Province, covers parts of Montana and Wyo-

ming, there is no reason to suppose that the data thus presented

is not useful for assessing, at least in a qualitative way, activity

within the Northern Great Plains.

10a

Ans. No. 14. Mining plans can be approved for these

leases, and mining can begin thereon, upon the con-

currence of the Under Secretary.” Since the short-

term leasing policy began, at least four mining plans,

one on Indian lands,” have been approved, and ap-

proval of four more mines in the Eastern Powder

River coal basin is pending.“* Environmental unpact

statements have been issued for most of these plans.”

? Interior must act affirmatively at three points before a mine

can begin operations. First. it must issue a prospecting permit,

which usually contains a preference right to any subsequent

lease. Second, it niust issue a lease. Finally, it must approve a

mining plan. The first activity is now suspended, the second

governed by the short-term leasing policy, and the third con-

tinues unimpeded.

Mining plans have been approved for leases held by the

Amxas Coal Company in Campbell County, Wyoming ‘72

acres): Peabody Coal Company in Rosebud County, Moi .na

(640 acres): Western Energy in Rosebud County, Montana (15°

acres): and Westmoreland Resources in Harden County, Mon-

tana (245 acres). The Westmoreland lease is on Indien land=

Supp. Int. to Seeretary Morton. Ans. No. 15.

Approval is pending of mining plans submitted by Atlantic

Richfield Company, Carter Oil Company. Kerr- McGee Coal

Corp., and Wyodak Resources Development Corp. While the

Secretary has indicated his readine=s to act on these plans,

Supp. Int. to Secretary Morton, Ans. No. a, action has been

sinved by order of this court, pending resolution of this appeal.

Order filed Jan. 3, 1975. .

% Impact statements have been issued for the plans submit-

ted by Westmoreland Resources. Peabody Coal Company, and

the four mines in the Eastern Powder River basin. See notes 15

& 14 supra. The validity of the Westmoreland statement was

sustained in Redding v. Morton, Civ. No. 74-12-BLAr (1).

Mont.. May 1. 1974). appeal pending, 9th Cir., No. T+-195 1. The

Kustern Powder River mines were considered together in one

impact statement so that the cumulative effect of these related

development plans could be analyzed. To assure full considera-

lla

Approval is pending as well for eight other mining

plans, one of which covers Indian lands, in the four-

state area. Supp. Int. to Secretary Morton, Ans. No.

16. In addition to ongoing approval of mining plans,

Interior has previously approved plans for 29 leases

issued by the Bureau of Land Management (BLM),

only half of which are operational.” These mines can

begin operation without further federal action.

Moreover, despite the short-term leasing program,

there are exceptions to the leasing moratorium. The

program allows a lease to be issued

(a) When coal is needed now to maintain an exist-

ing mining operation; or

(hb) When coal is needed as a reserve for production

in the near future;

(¢) When the land to be mined will in all cases be

reclaimed in accordance with lease stipulations that

will provide for environmental protection and land

reclamation; and

tion of total impact, the statement also considered the proposed

issnance of a railroad right-of-way to Burlington Northern Ine.

and the Chicago and North Western Transportation Company

for a new railroad route between Gillette and Douglas. Wyo-

ming to service the new mines. The final environment state-

ment was issued to the Council on Environmental Quality

(CEQ) on Oct. 18, 1974.

There has been no contention that any of these individual

statements comprehensively study the regional impact of coal

development in the Northern Great Plains. and our examina-

tion of the statements makes it clear that they do not do so.

(7. Scientists’ Institute for Public Information, Inc. v. AEC

(SIPI), 156 U.S. App. D.C. 395, 408-409, 481 F. 2d 1079, 1le92-

1095 (1975): Natural Resources Defense Council. Inc. y. Mor-

ton. 148 U.S. App. D.C. 5, 12-13, 458 F. 2d 827, 834-835 (1972).

See also notes 23 & 36 infra.

* See note 7 supra.

12a

(d) When an environmental impact statement cov-

ering the proposed lease has been prepared when re-

quired under the National Environinental Policy Act.

News Release, Feb. 17, 1973, App. 196-197; Fdg. 18,

App. 238-239. Since institution of the program, four

leases have been issued throughout the nation, although

none are in the Northern Great Plains. Supp. Fdg. 1.

Nonetheless, there are 42 competitive lease applica-

tions pending in the four-state region for a total of

272,126 acres, and 80 preference right leases pending

in the region for a total of 201,668 acres. Supp. Int.

to Secretary Morton, Ans. Nos. 7 & 8. Interior has

proved willing to apply the exception to the the leas-

ing moratorium in the Northern Great Plains. On

July 9, 1974 the Department offered for sale a lease

covering approximately 320 acres south of Stanton,

North Dakota. The lease was not issued only because

no bids were received. Supp. Int. to Secretary Morton,

Ans. No. 2. Despite the number of pending applica-

tions, however, Interior says it is not now considering

offering any further leases in the Province under the

short-term leasing program. Id., Ans. No. 3. The See-

retary anticipates that the short-term leasing program

will continue in effect ‘‘at least until after the issu-

ance of the final coal programmatic EIS and the de-

velopment of a planning system to deiermine the size,

timing and location of future coal leases.” Id., Ans.

No. 4. The final coal programmatic statement is ex-

pected to issue shortly. Id., Ans. No. 30.

Lastly, Interior has power over development of

projects in the Northern Great Plains that are very

¢'f. Hearings before the Subcom. on Minerals, Materials,

and Fuels of the Senate Committee on Interior and Insular

Affairs. 93rd Cong., 2d Sess. 10, 17, 28 (1974) (statement of

Ass't See. of Interior Horton that Department will end its

-hort-term leasing policy in Sept. 1974).

134

closely tied to any future development of the Prov-

ince’s coal resources. These powers are not affected by

the short-term coal-leasing policy, and are limited only

by the Secretary’s stated forbearance pending issuance

of the NGPRP, a forbearance that evaporates upon

the Under Secretary’s approval of a stated project.

Thus, in addition to the pending mining plans dis-

cussed above, there are now pending before the De-

partment 14 applications for coal-related rights-of-way

across the Northern Great Plains. Jd., Ans. No, 21.

Two coal-related rights-of-way have been granted since

June 30, 1974 in the four-state region, but both are

outside the Northern Great Plains. Id., Ans. No. 20.

Additionally, a total of 41 applications are now pend-

ing before the Department, the Corps of Engineers, or

both, for option contracts for water in the Province,

although no such contracts have been executed since

July 1971." Well over two million acre feet of annual

water use are at stake. Supp. Fdg. 7.

In sum, there are pending applications for mine

leases and mining plans, for rights-of-way over public

lands, navigable waterways, and national forests, and

for water rights in federally-controlled waters through-

out the Northern Great Plains. Few such applications

have been granted in the last two years as the Secre-

tary has studied the preferred development of the

region. Yet the time when action will be taken is close

at hand. The final coal programmatic EIS and the

final interim report of the NGPRP will issue shortly,

if they have not issued already. The flood of applica-

tions will then be ripe for approval, and the massive

development of the Northern Great Plains will begin.

**One such application was denied in September 1975. Supp.

Fdg. 7.

144

Plaintiffs-appellants are a collection of organiza-

tions interested in protection of the environment. They

brought suit on behalf of themselves and their mem-

bers, see Sierra Club v. Morton, 405 U.S. 727. 92 S.Ct.

1361, 31 L.Fd.2d 636 (1972), on June 13, 1973, charg-

ing that the Departments of the Interior, Agriculture,

and the Army (the federal appellees) had authorized

development of coal resources in the Northern Great

Plains Region (the Region), defined as northeastern

Wyoming, eastern Montana, and the western Dakotas,

in violation of NEPA. Specifically, appellants charged

that NEPA precluded development of the Region ex-

cept after preparation of a comprehensive environ-

mental impact statement, systematic interdisciplinary

studies of coal development, and a study of appro-

priate alternative courses of action, 42 U.S.C. § 4332

(2)(.A), (C), and (D). Appellants sought a declara-

tory judgment that NEPA was being violated, an in-

junction barring future federal action in the Region

until the requirements of NEPA were met, and an

order compelling the federal appellees to comply with

NEPA. Complaint at 22-23, App. 22-23. A number of

coal mining companies, utility companies, and the

Crow Tribe of Indians (the intervenor appellees), all

having interests in development of the Province, were

allowed to intervene as defendants.

After limited discovery appellants moved, on Au-

eust 31, 1973, for summary judgment. App. 66. The

federal and intervenor appellees filed various cross-

motions for summary judgment and judgment on the

pleadings. App. 164, 168, 171. On February 14, 1974

the District Court denied appellants’ motion for sum-

mary judgment and granted appellees’ motions. While

15a

finding, and reciting most of the facts outlined above,

see supra, slip pages 731-737, U.S. App. D.C.

pages . F. 2d pages , the District Court

concluded that the Region, as defined in appellants’

complaint, “is not an entity, region, or area which has

been defined by the Federal Government by statute or

executive action for purposes of any Federal program,

project, or action.” Fdg. 7, App. 235. Moreover, de-

spite the facts outlined above, ‘‘[t]here is no existing

or proposed Federal regional program, plan, project,

or other regional ‘federal action’ within the meaning

of NEPA Section 102(2) for the development of coal

or other resources” in the Region. Fdg. 8, App. 235

(emphasis in original). The court then held that in

the absence of regional federal action, multiple appli-

cations for individual federal action in connection with

individual private projects which are unrelated to one

another exeept geographically do not either constitute

regional federal action or mandate a regional impact

statement. Conclusion of Law (Concl.) 4, App. 245.

Likewise, NEPA Sections 102(2)(A) and (1D) do net

require a regional approach unless the federal action

subject to those requirements is already regionally

based. Concl. 5, App. 246. Finally, the court ruled that

the NGPRP “is a study project and not a program

for development,” and, as such, it does not “hafve]

life’? within the meaning of NEPA. Conel. 9, App.

248. Even if a regional plan existed, the court ruled,

NEPA would not prohibit proceding with individual

projects and, in any ease, appellants would not be

entitled to an injunction since they have not shown the

likelihood of irreparable harm. Conel. 10 & 11, App.

248.

Appellants filed their notice of appeal on March 19,

1974. On March 26, 1974 the District Court denied ap-

16a

pellants’ motion for an injunction pending appeal, and

appellants then filed, on April 12, 1974, a motion in this

court for an injunction pending appeal and an expedi-

ted hearing. The motion for an expedited hearing was

eranted on June 17, 1974. While the court, Leventhal

and Tamm, J.J., denied the motion for the broad

injunction pending appeal because it lacked adequate

knowledge of certain dispositive facts, it noted “the

spectre of significant harm to large tracts of valuable

wilderness still remains,” and it urged the federal ap-

pellees to exercise ‘substantial restraint” in continu-

ing development of coal resources in the Region lest

the court’s jurisdiction to decide the need for a com-

prehensive impact statement be, for all practical pur-

poses, defeated. Order filed June li, 1974.

Argument was scheduled for mid-October, but on

October 14, 1974 the court, Leventhal and Nichols, JJ.,

ordered, sua sponte, argument rescheduled for Decem-

ber 17, 1974, meanwhile remanding the record to the

District Court for a further evidentiary hearing de-

signed to answer certain factual questions so as to

make the record as current as possible.” The parties

” The supplemental questions were as follows: |

1. Is the limitation on the issuance by the United States of

coal leases announced on February 17, 1973, still in effect? How

many leases have been issued for lands in the Northern Great

Jains region since February 17, 1973?

ro "Is the suspension of the issuance by the United States of

coal prospecting permits announced on February 13, 1973, still

in effect? How many, if any coal prospecting permits have

been issued in the Northern Greet Plains region since Febru-

*y 13, 1973?

i To ia extent has coal leasing on Indian lands in the

Northern Great Plains region been approved by the Department

of the Interior since February 17, 1973.

4. Have any applications for permits for rights-of-way over

lands within national forests in the Northern Great Plains re-

gion been considered or acted upon by the Department of Agri-

+ et

17a

were allowed to file supplemental memoranda concern-

in the District Court’s supplemental findings. The

District Court has provided us with full answers to

the certified questions, but has alhered to its original

conclusions of law. Thus we may deem the court to

have found these additional facts not inconsistent with

its original conclusion. After oral argument we

granted appellants’ motion for a limited injunction

pending this decision, and ordered the Secretary of

the Interior, pending further order, to take no action

concerning the mining plant and railroad rights-of-

culture since June 30, 1974? Have any applications for permits

for rights-of-way oyer navigable rivers in the Northern Great

Plains region been considered or acted upon by the Corps of

Engineers since June 30, 1974?

5. Has the Northern Great Plains Resources Program interim

report been released? Is any further action contemplated regard-

ing that program?

6. Does the United States Government contemplate the prep-

aration of any further environmental impact statements—other

than statements for individual projects—for the Northern Great

Plains area, the Fort Union Formation, or for any subregion

thereof?

7. What is the status of the granting of water rights and

water contracts in the Northern Great Plains area ?

8. How was the area to be covered by the EIS for the devel-

opment of coal resources in the Eastern Powder River Coal

Basin defined, and how was it determined that an EIS was

appropriate for that area?

9. Regarding environmental impact statements for individual

projects in the Northern Great Plains area, where the state-

ments have been issued after February 17, 1973, or prepared for

projects that were commenced after that time—a. Provide one

or more representative statements. b. Do the statements attempt

to provide an assessment of the cumulative impact of the gov-

ernmental action in the surrounding area? c. Do the statements

take into account the ecological setting created by private action

in the area? d. Has the government devised any procedure for

cross-referencing among the individual statements?

Order, Oct. 14, 1974.

18a

way ready for approval in the Eastern Powder River

coal basin and discussed in the Eastern Powder River

EIS. Order filed January 3, 1975. Having the benefit

of the District Court’s original and supplementai find-

ings, and the original briefs and supplemental mem-

oranda of the parties, we must now turn to the

merits.*°

“We can dispose here of two preliminary defenses raised

by appellees and given credence by the District Court, namely,

whether this case presents a justiciable case or controversy, and

whether appellant organizations have standing to sue. The Dis-

trict Court held that “the courts will not review the validity of

supporting statements or studies until final Federal actions

taken under NEPA Section 102(2) and until after final agency

action has been taken with respect to the individual project,”

Conel. 7, App. 247, and that, therefore. no case or controversy

hed been stated. Concl. 8, App. 247. While the court is correct

that as a general proposition of law NEPA challenges to indi-

vidual projects can be brought only after final agency approval

of a project, see e.g.. Committee to Stop Route 7 v. Volpe,

1D.Conn., 346 F.Supp. 751 (1972), the court seems to assume

that (1) only individual actions can be challenged, and (2) ap-

pellants do not allege that final actions have occurred. Both

of these assumptions are erroneous, and we find that appellants

have stated a case of controversy.

First, as will be made clear in text below, S/P/ firmly holds

not only that a comprehensive program can be challenged under

NEPA, but that the suit does not have to be brought via an

attack on an individual action. Even though the AEC’s Liquid

Metal Fast Breeder Reactor (LMFBR) program was only in

“the research and development stage and no specific implement-

ing action which would significantly affect the environment had

vet been taken.” S/P7, supra note 15, 156 U.S. App.D.C. at 398,

481 F.2d at 1082, the court found the program “has life.” which.

for purposes of NEPA, was sufficient to make a case or

controversy.

~The instant case is ripe under these principles since the

issue tendered for review is whether an impact statement on the

AFC’s LMFBR program is presently required under NEPA.

** * In the context of a long-range program such as is in-

OO Re Tae,

194

volved here, judicial review of compliance with NEPA is

necessary at stages at wirich significant resources are being

committed, lest the statute's basic purpose be thwarted.”

156 U.S.App.D.C. at 403 n. 29, 481 F.2d at 1086 n. 2 (empha-

sis in original). As we shall make clear below, we think

appellees’ plans to control development of the Northern Great

Plains have sufficient life te state a case or controversy.

Second, appellants allege that appellees’ conduet in the Nortii-

ern (rreat Plains constitutes a “major federal action.” so that a

NEPA. statement. is required. Actions, both past and imuinent,

have been alleged. While the courts will typically not rule in

NEPA cases until after the agency decision to act, the essence

of appellants’ complaint is that appellees have already decided

to act. although they have not admitted as much. Again, S//?7

is directly in point. S/P/ recognized, necessarily. the propriety

of judicial intervention in determining the dictates of NEPA.

While it spoke expressly only of judicial determination that the

time for an EIS was ripe, 156 U.S.App.D.C. at 410, 481 F.2d

at 1004, the prmeiple and S/27/'s holding apply as well for

judicial determination that the Government is engaved in

“major federal action.” Therefore, while in the first instance

it is for the Government to decide whether an impact statement

is neeessary, where the Government improperly fails to treat

the cumulative effect of individual actions as a “major federal

action” it Is appropriate for the courts to intervene, and do so

sufficiently early that the purposes of NEPA are not thwarted.

We think that in a case like this, where appellants allege the

individual federal steps taken in the Northern Great Plains,

considered together, constitute a major federal action, a case or

controversy is stated when the challenged individual actions are

alleged, along with a reasonable basis for treating them cumu-

latively under NEPA, and there is a claim that “significant

resources are bemg committed.” 156 U.S.App.D.C. at 403 n. 29,

451 F.2d at l0s6 n. 29. We think appellants have met this test.

As in S/P/, the issue they raise is “whether an impact state-

ment on [development of the Northern Great Plains] is pres-

ently required under NEPA.” Jd. (emphasis in original). On

this issue, there is “a substantial controversy, between parties

having adverse legal interests, of sufficient immediacy and re-

ality.” Maryland Casualty Co. v. Paeifie Coal & Oil Co. 312

U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941). See also

20a

Abbott Laboratories v. Gardner, 387 U.S. 136, 148-149. 87 S.Ct.

1507, 18 L.Ed.2d 681 (1967); Eccles v. Peoples Bank, 333 U.S.

426, 434. 68 S.Ct. 641, 92 L.Ed. 784 (1948); Ashwander vy.

TVA, 297 U.S. 288, 324, 56 S.Ct. 466, 80 L.Ed. 688 (1936).

Thus we think a justiciable case or controversy has been stated

and the District Court erred in holding otherwise. Of course,

the fact that appellants do not fully prevail on the merits does

not operate, retroactively, to expunge the controversy.

The second preliminary issue concerns appellants’ standing to

sue. Appellants alleged, Complaint {€ 3-9, App. 3-5, and the

District Court found, that “[m]any members of plaintiff orga-

nizations live, work, engage in recreational activities, own land

and hold surface rights on or immediately adjacent to the sites

of coal mining and related activities in the four-state

am 7 eS

Fdg. 1, App. 235. Appellants further alleged that development

of coal resources in the Northern Great Plains would cause

direct harm to various of their members’ economic, environ-

mental, recreational, and aesthetic interests in the Region. Com-

plaint, © 10, 37, App. 5, 20-21. Such “injury in fact,” if proved,

plainly meets the broad test of standing outlined in Sierra Club

v. Morton, 405 U.S. 7z7, 92S. Ct. 1361, 31 L. Ed. 2d 636 (1972),

and applied in United States v. SCRAP, 412 U.S. 669, 93 S. Ct.

2405, 37 L. Ed. 2d 254 (1973). See also S7P/, supra note 15,

156 U.S. App. D.C. at 403 n, 29, 451 F. 2d at 1086 n. 29. In this

case, however, standing can be deemed to have been proved only

by appellant Northern Plains Resource Council (NPRC). The

issue of standing as to all appellants was raised by the denials

of the federal appellees, and of various intervenor appellees as

well. Answer of federal appellees, € 3-10, 37, App. 100, 109.

Nee, e.g.. answer of intervenor Nebraska Public Power District,

"3-4, App. 158-159. Nonetheless, except for the NPRC, no

appellant introduced any evidence to prove its standing, and the

District Court made no express finding that any appellant had

standing, presumably because there was no challenge to appel-

lants’ standing in appellees’ motion for summary judgment. Of

course, standing to sue is an essential element of a cause of

action and must be “demonstrated” as well as “alleged,” partic-

ularly where controverted. S/P/, supra note 15, 156 U.S. App.

1D).C. at 403 n, 29, 481 F. 2d at 1086 n. 29. See also United States

ees ite —

Se eo os

21a

III

NEPA’s applicability to the cumulative effect of

individual actions was an early issue in the impact

v. SCRAP, supra, 412 U.S. at 689-690, 95 S. Ct. 2405. On

remand to the District Court appellants may introduce evidence

of their standing to allow the District Court the opportunity to

rule on the issue if appellees continue to deny it. Cf. Sierra

Club v. Morton, supra, 405 U.S. at 735 n. 8, 92 S. Ct. 1361.

NPRC introduced into evidence two affidavits from its Vice

Chairman, Christopher Muller. The affidavits related directly to

the proposed Westmoreland Resources coal mine on Crow-ceded

land. See note 15 supra. Muller identifies those members of his

organization who reside in the vicinity of the proposed mine

and the adverse environmental, aesthetic, and economic effects

on those members of continued construction of the mine. Affi-

davits of Christopher Muller, Nov. 7, 1975 and Dee. 21, 1973.

While appellees attempted to controvert the Muller affidavits

with the affidavit from W. J. Connelly of Westmoreland Re-

sources asserting that the adverse effects on appellants were

minimal, Affidavit of W. J. Connelly, Jan. 11, 1974, it is clear

that minimal “injury in fact” is sufficient for standing. United

States v. SCRAP, supra, 412 U.S. at 688-690, 93 S. Ct. 2405.

Nee also New Jersey Chapter, Inc., A.P.T.A., Inc. v. Prudential

Life Ins. Co., 163 U.S. App. D.C. » —, 02 F. 2d 500, 504

(1974) (“Standing need not be founded on a rock; a pebble or

even a cobweb may do.”) That there will be at least minimal

injury is uncontroverted. Of course, the fact that an impact

statement has been approved for the Westmoreland mine, see

note 15 supra, does not affect appellants injury, nor does it

deprive them of standing to seek a comprehensive statement for

the entire Region, since the injury caused them by development

of the Westmoreland mine is part of the injury regional devel-

opment would cause. Since appellant NPRC has demonstrated

“injury in fact,” and since it does not appear to be contested

that the injury is within the zone of interests intended to be

protected by NEPA, see Data Processing Service 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),

we hold that NPRC had standing to bring the suit below, and

to bring this appeal.

22a

statement cases, and has continued to require defini-

tion to date.* An environmental impact statement is

only required, of course, for “proposals for legisla-

tion and other major Federal actions significantly af-

fecting the quality of the human environment * * *.”

Section 102(2)(C), 42 U.S.C. § 4332(2)(C) (emphasis

added). While the meaning of “legislation” is fairly

clear, the precise content of “major Federal actions”

is often open to question, and was, apparently pur-

posely, enacted by Congress without definition. When

an individual project—a dam, a highway, a parking

plan—crossed the boundary line from minor to major

action was the first issue presented to the courts, and

it was one capable of fairly ready resolution. See, e. 4.

Scherr vy. Volpe, 7 Cir., 466 F. 2d 1027 (1972); Citi-

zens Organized to Defend Environment, Ine. v. Volpe,

S.D. Ohio, 353 F. Supp. 520 (1972); Monroe County

Conservation Council, Ine. v. Volpe, 2 Cir., 472 F. 2d

693 (1972); Crary v. Morton, D.D.C. (Civ. No. 75-

1023, order issued Feb, 11, 1975).

More difficult, but also readily resolved, was the

question whether the cumulative effect of various

federal actions, all individually minor, could together

constitute a “major federal action.” The courts, aided

by the Guidelines of the Council on Environmental

Quality (CEQ), the body established by NEPA to re-

view agency compliance with Sections 101 and 102 of

** 4 related problem, essentially the converse of this one, is

determining when a major action should be segmented into

smaller actions so as to allow filing an impact statement for the

smaller actions. See, e.g. Named Individual Members of San

Antonio Conservation Society v. Texas Highway Department.

5 Cir., 446 F. 2d 1013 (1971); Natural Resources Defense Coun-

cil vy. Morton, DDC, 388 FL Supp. 829 (1974): Committee to

Stop Route 7 v. Volpe, supra note 20. Cf. Indian Lookout

Allianee ve Volpeos Cir, isd F.2d 11 (1973).

234

the Act, 42 U.S.C. §4344(3), have consistently held

that the purposes of NEPA would be violated if an im-

pact statement were not required in such cases. The

Guidelines make clear that the statutory term “major

Federal actions” must be assessed **with a view to the

overall, cumulative impact of the action proposed, re-

lated Federal action and projects in the area, and fur-

ther actions contemplated.” 40 C.P.LR. §1500.6(2)

(1974). Cf. 36 Fed. Reg. 7724 (1971) (the original

guidelines).” The Guidelines further explain how

minor federal actions can be “cumulatively consider-

able.”’

This can oecur when one or more agencies over

a period of years puts into a project individn-

ally minor but coilectively major resources,

when one decision involving a limited amount of

money is a precedent for action in much larger

cases or represents a decision in principle about

future courses of action, or when several Govy-

ernment agencies individually make decisions

about partial aspects of a major action.

40 C.P.R. § 1500.6(a) (1974). This interpretation of

the statutory term is eminently reasonable, both be-

cause NEPA plainly mandates comprehensive consid-

eration of the effects of all federal actions, 42 U.S.C.

® 4352(2)(A), which consideration would be defeated

if impact statements were required only for individual

projects of “major” size, and because any other inter-

2 Although the CEQ Guidelines lack the force of law. we

should “not lightly suggest that the Council. entrusted with the

responsibility of developing and recommending national policies

‘to foster and promote the improvement of the environmental

quality, * * * has misconstrued NEPA.” Greene County Plan-

ning Board vy. FPC, 2 Cir, 455 F. 2d 412, 421, cert. denied, 409

U.S. 849, 93S. Ct. 56, 34 L. Ed. 2d 90 (1972). See note 24

infra.

24a

pretation would provide an escape hatch, through

agency subdivision of “major” projects, from the im-

pact statement requirement.

Almost every project can be divided into smaller

parts, some of which might not have any appre-

ciable effect on the environment. The court

would be forced to take each project apart piece

by piece * * *.

People of Enewetak v. Laird, D. Hawaii, 353 F. Supp.

811, 821 (1973). Thus the courts have had no difficulty

in requiring impact statements for “major Federal

actions’? that were no more than the cumulative effect

of related minor federal actions. See e.g., Natural

Resources Defense Council v. Grant, E.D.N.C., 341

F. Supp. 356, 367 (1972); People of Enewetak v.

Laird, supra; Minnesota PIRG vy. Butz, D. Minn.,

358 F. Supp. 584, 622 (1973); SCRAP v. United

States, D.D.C., 346 F. Supp. 189, 200 (1972) (three-

judge court), reversed on other grounds, 412 U.S. 669,

93 S. Ct. 2405, 37 L. Ed. 2d 254 (1973) (‘‘the necessity

of preparing an impact statement cainot be avoided

or postponed * * * by breaking [the action] into

minute component parts”). Cf. Named Individual

Members of San Antonio Conservation Society v.

Texas Highway Department, 5 Cir., 446 F. 2d 1013,

1022 1023, cert. denied, 403 U.S. 932, 91 S. Ct. 2257,

29 L. Ed. 2d 711 (1971).

The next problem to reach the courts involving

cumulative impact of related activities was also the

logical next step. If the cumulative effect of individ-

ually minor federal actions could constitute a major

federal action, could the cumulative impact of admit-

tedly major federal actions do so as well? Even if in-

dividual impact statements were being prepared for

le ene. soy - ee

254

the individual actions, would a comprehensive state-

ment for the cumulative action also be necessary ? The

answer was provided by this court’s SIPI decision.

Finding no distinguishing principle separating assess-

ment of the cumulative impact of individually minor

actions from the cumulative impact of individually

major actions, we held that NEPA’s impact statement

requirement is not limited to individual projects. Ra-

ther, in S7PI we demanded that the Atomie Energy

Commission prepare a comprehensive impact state-

ment for its Liquid Metal Fast Breeder Reactor

(LMFBR) program, even though an individual state-

ment had been prepared for the one existing fast

breeder demonstration plant and even though the

Commission planned to issue an individual state-

ment for each future plant and test facility within the

program.

The Commission takes an unnecessarily crabbed

approach to NEPA in assuming that the impact

statement process was designed only for partic-

ular facilities rather than for analysis of the

overall effects of broad agency programs. In-

deed, quite the contrary is true.

156 U.S. App. D.C. at 402-403, 481 F. 2d at 1086 1087.

See also Natural Resources Defense Council v. Mor-

ton, supra (emphasizing the need for compreshensive

environmental planning). S7PI’s approach is firmly

echoed by a contemporaneous First Circuit decision. In

Jones v. Lynn, 1 Cir., 477 F. 2d 885 (1973), the court

held that preparation of impact statements on individ-

ual buildings within an urban renewal project would

be both impractical and, unless the individual state-

ment evaluated the ‘“‘cumulatively significant impact”

of the entire federal role in the project, in violation

264

of NEPA. Instead a comprehensive statement was

required.

[I]t would not seem sensible to adopt the piece-

meal approach which HUD seeks to adopt,

whereby it will prepare a modified impact state-

ment separately for each proposed construction

as a iwityage Mmsurance application is filed, an

appreach akin to equating an appraisal of each

tree to one of the forest.

Td, at SSL. See also Conservation Society of Southern

Vermont, Ine. v. Secretary of Transportation, 2 Cir.,

oU8 F.2d 927 (1974).

We think S/P/’s holding that statements are neces-

sary for “broad agency programs” in addition for

“broad agency programs” in addition to “particular

facilities” was firmly based, and we reaffirm it here.

We do not understand appellees to dispute S7PT’s

validity. In fact, we note that, in compliance with the

CEQ Guidelines and with SJPIJ, Interior has itself

decided a national coal programmatic statement is

necessary to assess the bread impact of its national

coal development policy.” Likewise, when confronted

With applications for approval of four mining plans

and a railroad right-of-way in ene subregion of the

Northern Great Plams, the Eastern Powder River

coal basin, Interior properly decided to assess the

cumulative environmental iinpact of the individual

**Tt is not suggested by appellees that this national program-

matic statement is sufficiently detailed to substittue for a re-

gional statement covering the Northern Great Plains, and our

examination of the draft statement makes it clear that it is not.

Cf. Natural Resources Defense Council v. Morton, svpra note

41. For the limitations of the national statement, see Draft

Environmental Impact Statement, Proposed Federal Coal Leas-

ing Program at T-6, I-7. Cf. note 15 supra.

+ <meeees

27a

projects through a regional impact statement. See note

15 supra,

In SIPI the AEC admitted it was engaged in the

LMFBR program. We must now decide whether to

extend SJPI/ to require comprehensive impact state-

ments in situations where the responsible agencies

deny they are engaged in a broad program. Appel-

lants would have us hold that an impact settlement is

necessary in this case “precisely because the federal

agencies have not prepared any plan for coal develop-

ment in the Northern Great Plains.’’ Appellants’ brief

at 47. They rely primarily on the following provision

from the CEQ Guidelines:

Agencies should give careful attention to

identifying and defining the purpose and scope

of the action which would most appronriately

serve as the subject of the statement. In many

cases, broad program statements will be re-

quired in order to assess the environmental

effects of a number of individual actions on a

given geographical area (e.g. coal leases), or

environmental impacts that are generic or com-

mon to a series of agency actions (e.g., main-

tenance or waste handling practices), or the

over-all impact of a large-scale program or

chain of contemplated projects (e.g... majer

lengths of highway as opposed to small seg-

ments). Subsequent statements on major indi-

vidual actions will be necessary where such

actions have significant environmental impacts

not adequately evaluated in the program state-

ment.

40 C.FLR. § 1500.6(d)(1)(1974) (emphasis added).

Appellants read these guidelines to vequire a compre-

hensive impact statement whenever a group of indi-

vidual federal projects are related geographically, en-

vironmentally, or programmatically. After extensive

28A

analysis of federal activities in the Northern Great

Plains, appellants conclude ‘‘the projects and federal

actions relating to coal development in the Northern

Great Plains region are related in all three of these

ways.” Appellants’ brief at 33: Appellees argue that a

statement is required only when the Government has

itself designated the activities at issue a ‘‘program.”

They claim the CEQ Guidelines support this approach

arguing that reference to the need for “broad program

statements” means the Guidelines only define when

broad statements are needed in pre-existing programs.

Intervenor appellees’ brief at 31 n. 1.

We reject appellees’ constricted reading of the

Guidelines. Whether a comprehensive impact state-

ment is required cannot turn simply on whether the

agency has denominated a comprehensive series of

actions a “program.” This argument is analoge .s to

that in the early NEA cases when agencies denied

that related minor actions constituted, in toto, a major

action. We did not hesitate at that time in holding that

major actions were involved despite the agency

denials; where appropriate, we will not hesitate now.

The fact of an agency denial does not end the contro-

versy, but rather points to why the controversy exists.

Surely the result in SJPI would have been no differ-

ent had the AEC simply denied that a comprehensive

program Was involved, all the other underlying facts

being the same. At a minimum, the courts must re-

serve the right to analyze federal actions to determine

if, in fact, a comprehensive program, however labeled,

is under way or proposed. See SCRAP v. United

States, supra, 346 F. Supp. at 200.

This conclusion is firmly supported by the recent

Second Cireuit decision in Conservation Society of

Southern Vermont, Ine. v. Secretary of Transporta-

29a

tion, supra. In Conservation Society the court upheld

the determination of the District Court that the De-

partment of Transportation could not proceed with

improvement of a 20-mile segment of U.S. Route 7

until a comprehensive impact statement was prepared

for the entire 280-mile length of Route 7. The District

Court so held, although it acknowledged that there was

no present plan for overall development of the road:

it found, however, that ultimate conversion of Route 7

into a superhighway was a goal held by the federal

defendants and that it was “possible of accomplishment

with legislative and federal approval over a long-range

period of time * * *.’’ D. Vt., 362 F. Supp. 627, 636

(1972). Since ultimate conversion was the expectation

of the federal defendants, and since completion of the

20-mile segment at issue would constitute an irreversi-

ble and irretrievable commitment of resources that

would generate more traffic and thereby create syner-

gistic pressure for further construction, the District

Court ruled that major federal action was proposed

within the meaning of Section 102(2)(C), and that

the time was ripe for a comprehensive impact state-

ment. The Second Circuit agreed.

While we thus feel firmly grounded in inquiring

into the actual nature of the Government’s actions,

appellants would have us go further than this.

Essentially, they would have the courts require filing

of a comprehensive impact statement if a compre-

hensive program should be under way. Admittedly,

the CEQ Guidelines, which are entitled to great re-

spect,” do seem to sweep that broadly. Moreover, there

2¢“When faced with a problem of statutory construction, this

Court shows great deference to the interpretation given the

statute by the officers or agency charged with its administra-

tion.” Udall v. Tallman, 380 U.S. 1, 16, 85 S. Ct. 792, 801, 15

30A

are dicta in the cases suggesting that the duty to plan

comprehensively can be imposed on the Government

apart from the duty to file an impact statement for

comprehensive plans. For instance, Natural Resources

Defense Council v. Morton, sv ora, suggests:

What NEPA infused into the decision-mak-

ing process in 1969 was a directive as to en-

vironmental impact statements that was meant

to unplement the Congressional objectives of

Government coordination, @ comprehensive ap-

proack to environmental management, and a de-

termination to faee problems of pollution “while

they are still of manageable proportions and

while alternative solutions are still available”

rather than persist in environmental dectsion-

making wherein “policy is established by de-

fuult and inaction” and environmental decisions

“continue to be made in small but steady inere-

ments’? that perpetuate the mistakes of the past

without being dealt with until “they veach erisis

proportions.” S. Rep. No. 91-296, 91st Cong.,

Ist. Sess. (1969) p. 5.

L. Ed. 2d 616 (1965). See also Rosado v. Wyman, 397 U.S. 397,

415. 90 S. Ct. 1207, 25 L. Ed. 2d 42 (1970), Zuber v. Allen,

S06 TLS. 168. 192. 90 S. Ct. 314, 24 L. Ed. 2d 345 (1969).

While CEQ is not. strictly charged with administration of

NEPA it is charged with the duty of reviewing and appraising

agency complhance with the statute, and so is entitled to defer-

ence, 42 ToS.C. § 154415). This deference is heightened when,

as here, the administrative interpretation is adopted soon after

passage of te legislation. Power Reactor Development Co. v.

Internations! Union of Electricians, 367 U.S. 396, 408, 81S. Ct.

1529. 6 L. Ed. vd 924 (1961): United States v. Zueca, 351 U.S.

91, 96, TES. Ct. 671, 100 L. Ed. 964 (1956); United States v.

American Trucking Ass‘ns, 310 U.S. 554, 549 (1940). Aceord-

ingly, the courts have consistently deferred to CEQ guidelines.

Nee SIPT, supra note 1, 156 Us. App. D.C. at 402-404, 451

F. 2d at 1086-1088; Greene County Planning Board v. FPC,

supra note 22, 455 F, 2d at 421: Environmental Defense Fund

v. TVA. 6 Cir. 468 F. 2d 1164, 1178 (1972). See note 22 supra.

3la

148 U.S. App. D.C. at 14, 458 F. 2d at 836 (emphasis

added). Viewed broadly, this language plainly con-

templates imposing a requirement of comprehensive

planning on the Government when it refuses to do so

itself. Indeed, NEPA does declare it federal policy **to

use all practicable means * * * to improve and coordi-

nate Federal plans, functions, programs and_ re-

sources” in order to protect the environment. Section

101(a), 42 U.S.C. § 4831(a). NEPA’s substantive pro-

visions may be enforced in court as well as its proce-

dural requisites.” See Calvert Cliffs’ Coordinating

Committee v. AEC, supra, 146 U.S. App. D.C. at 38,

449 F, 2d at 1114. Agency violation of this substantive

duty by a failure to improve its plans or coordinate

its actions might justify a judicial directive to coordi-

nate various major federal actions into one compre-

hensive major federal action, followed by a directive

ordering issuance of a comprehensive impact state-

ment for that newly-comprised action.

While we approve, in theory, the legal basis for ap-

pellants’ argument, we note the practical difficulties in

its broad application. An infinite number of geo-

2° Six circuits have found that agency action in violation of

the substantive provisions of NEPA may be enjoined. How-

ever, the action must be found to be arbitrary or capricious.

See Calvert Cliffs’ Coordinating Committee, Inc. v. AEC. 146

U.S. App. D.C. 33, 39, 449 F. 2d 1109, 1115 (1971): Environ-

mental Defense Fund v. Corps of Engineers, 8 Cir. 470 F. 2d

289, 300 (1972): Sierra Club v. Froehlke, 7 Cir. 486 F. 2d

946, 953 (1973): Conservation Council of North Carolina vy.

Froehlke. 4 Cir.. 473 F. 2d 664, 665 (1973); Silva v. Lynn, 1

Cir. 482 F. 2d 1282, 1283 (1973): Jicarilla Apache Tribe of

Indians v. Morton, 9 Cir. 471 F. 2d 1275, 1281 (1973). Contra,

National Helium Corp. v. Morton, 10 Cir., 455 F. 2d 650 (1971).

Thus an agency could not be found to have failed to plan com-

prehensively in violation of NEPA unless that failure was so

gross as to be arbitrary and capricious.

324A

graphic, environmental, or programmatie interrela-

tionships might be found among the various individual

federal projects under way throughout the country.

Surely, however, an infinite number of comprehensive

plans, and comprehensive impact statements, are not

required. Moreover, the Guidelines are intended to

cnuide agency planners in the need for impact state-

ments. It is, of course, the agencies that are supposed

to organize the various federal projects throughout

the country, not litigants who come into court seeking,

possibly in opposition to one another, to force the agen-

cies into action according to their lights; one might

seek, for instance, a coal impact statement for the

Northern Great Plains, another for the four-state re-

gion, and another for the state of Wyoming alone. Use

of NEPA to force a comprehensive plan on an unwill-

ing ageney as a means to force that agency to under-

take a comprehensive impact statement might intrude

unduly on agency discretion, while overly involving

the courts in the day-to-day business of running the

Government.

This is not to say appellants’ claim is without merit.

We have noted above the persuasiveness of their legal

arguments. Since the courts would only find an agency

to be in violation of the substantive provisions of

NEPA if its failure to plan comprehensively was ar-

hitrary or capricious, the dangers suggested above

would be minimized.” And there may be instances

where judicial intervention is justified. Surely we are

not willing to hold that the less comprehensive plan-

ning an agency chooses to do, the less NEPA requires

it to do. Such a reductio ad absurdum would make a

mockery of the Act. However, we need not decide ap-

** See note 25 supra.

33A

pellants’ claim here. We think the facts in the reeord

and as found by the District Court establish that re-

gional development of the Northern Great Plains is

contemplated by the federal appellees. The proposal

for such development would constitute a proposal for

major federal action within the meaning of Section

102(2)(C) and demand issuance of a comprehensive

regional impact statement.

It is beyond question that federal action within the

meaning of the statute includes not only action under-

taken by the agency itself, but also any action per-

mitted or approved by the agency. SIPI, supra, 156

U.S. App. D.C. at 404, 481 F. 2d at 1088. Approving

leases to private parties and granting licenses or per-

mits to private parties are familiar—and well-estab-

lished—examples of major federal actions. See, e.g.,

Davis v. Morton, 10 Cir. 469 F. 2d 593 (1972) ; Greene

County Planning Board v. FPC, supra; Scenic Hud-

son Preservation Conference v. FPC, 2 Cir., 453 F. 2d

463 (1971); Calvert Cliffs’ Coordinating Committee v.

AEC, supra. It is clear, and we do not understand the

federal appellees to contest it, that most, if not all,

of the ongoing and pending actions in the Northern

Great Plains are subject to federal approval and are

thereby federal actions. That these actions are major

and that they significantly affect the human environ-

ment is also not contested. Certainly actions in the Re-

gion subject to Section 102(2)(C) include the approv-

ing of mining plans, the granting of rights-of-way

across federal lands, and the granting of water rights

from federal reservoirs. Thus the relevant question is

not whether major federal actions are being taken in

the Northern Great Plains, nor is it whether impact

statements are necessary for those actions. The ques-

tion is whether the federal appellees have treated those

34a

actions regionally in such a way that they comprise,

cumulatively, a major federal action.

We believe the evidence mandates an affirmative

answer.

The evidence is overwhelming that the federal appel-

lees have for years been endeavoring to develop a plan

for regional development of the coal resources in the

Northern Great Plains. The North Central Power

Study, the Montana-Wyoming Aqueducts Study, and

the Northern Great Plains Resources Program were

all undertaken for this purpose. The purpose of the

aborted North Central Power Study was ‘‘to promote

the coordinated development of electric power supply

in the North Central United States."’ Zd., Report of

Phase I, Volume I, at 2 (1971). The ‘“‘key resource”

for development of that power supply was coal. Id.

The stalled Aqueduct Appraisal Report, after recom-

mending construction of large-capacity aqueducts to

serve the industrial needs resulting froin development

of the coal fields, concluded:

The apparent impact of the development will

require that full-scale comprehensive studies be

initiated ia the near future, in cooperation with

the states and others, to assure an orderly and

manageable growth pattern to minimize adverse

environmental effeets and impacts.

Td. at 31 (1972). Now the NGPRP is under way, an

Interagency, federal-state task force whose primary

objective is ‘to provide information and a comprehen-

sive analysis that can be used to place the potential

Impacts of coal development into perspective and

thereby assist the people of the Northern Great Plains

and the Nation in the management of the natural and

human resources of this region... NGPRP Draft

Internn Report at I-4 (1974). Secretary Morton tells

S5A

us that all three of these programs were ‘‘attempts to

control development by individual companies.” Affi-

davit of Secretary Morton, App. 190. The District

Court accepted this assertion as fact. Fdg. 14, App.

237.

The need for comprehensive regional development

of the Northern Great Plains was recognized by

responsible officials in the various agencies that sub-

sequently became involved in the NGPRP. On May 2,

1972 Secretary of Agriculture Butz wrote to the

Administrator of the Environmental Protection

Ageney with reference to coal development in the

Northern Great Plains: **We agree that a compre-

hensive, systematic, and interdisciplinary study of all

aspects of the development and use of our coal reserve

is needed.”” App. 75. On July 6, 1972 he wrote to

Senator Mansfield, again with reference to the North-

ern Great Plains: “[{T]here is considerable urgeney

and need for a coordinated mineral development strat-

egy.” App. 74. Likewise, on November 2, 1972. the

Chief of the Forest Service wrote to Senator Mans-

field concerning coal leasing in the national forest in

the Region. He reported that ‘ta prerequisite to

further leasing should be a plan for coordinated devel-

opment consistent with adequate environmental pro-

tection and the public interest."” App. 78, 119 Cong.

Ree. 1504 (1973). The same vear Assistant Secretary

of the Interior for Public Land Management Harrison

Loesch told a congressional committee that **[wJe are

presently investigating the necessity, and we think it

is a necessity, of rather comprehensive study and

planning effort in the large coal basins of Montana

and Wyorming.’” Federal Leasing and Disposal Pol-

icies, Hearing Before the Senate Committee on Inte-

rior and Insular Affairs, 92d Cong., 2d Sess., 85

(1972).

364

The NGPRP is the federal response to these

expressed concerns. It is the Government's attempt

to formulate a regional program that will enable it to

control development of the Northern Great Plains.

This is demonstrated not only by the stated goals of

the program itself, see slip op. at 747, 748 supra,

U.S. App. D.C. at . F., 2d at ——, but by the

suspension of activity in the Region pending its com-

pletion, by the comments of responsible officials, and

by the findings of the District Court. In setting up

the NGPRP in 1972, Secretary Morton described it as

‘‘an excellent opportunity for this Department to

demonstrate how a responsible Federal agency can

manage resources development with proper regard for

environmental protection.” App. 200; see slip op. at

733 supra, U.S. App. D.C. at . F. 2d

at . In responding to quetions about development

of the Region posed by a congressional committee,

Interior provided this statement:

An assurance of orderly and timely develop-

ment would require an analysis and assessment

of such items as regional coal demand and the

relationship to existing leases. The Department

is initiating a State, local and Federal program

to develop a regional development plan or

framework for the Montana, Wyoming, North

Dakota and South Dakota area associated with

the Powder River and Fort Union coal forma-

tions. The objective is the wise development of

the region accomplished in full realization of

social, economic and ecological consequences of

alternative possibilities.

Federal Leasing and Disposal Policies, Hearing Be-

fore the Senate Committee on Interior and Insular

Affairs, 92d Cong., 2d Sess., 189 (1972). The program

mentioned obviously was the NGPRP. Lastly, the Dis-

374

trict Court found that the interim report of the

NGPRP

will provide an informational foundation for

decision-making and planning. This information

will be utilized in decision-making for all coal

related actions in the Northern Great Plains

areas and will form a useful reference source

for preparing environmental analyses and state-

ments on proposed actions or groups of actions

in the Northern Great Plains area.”

However, while the NGPRP does attempt to pro-

vide a framework for decision-making to allow the

federal government to control development of the

Northern Great Plains, it plainly recognizes the need,

which it does not fill, for cumulative study of the en-

vironmental impact of that development.” The draft

7 The court also found “The purpose of the Department of

Interior policy with respect to resource development in the

Northern Great Plains Areas is to insure that development does

not proceed based solely on single purpose studies incapable of

developing comprehensive information or by piecemeal actions

which restrict future options. To fulfill that purpose the grant-

ing or approval of leases, special use permits and all types of

rights-of-way across public lands, the delivery and sale of

water and approval of mining plans relating to coal develop-

ment in the Northern Great Plains areas will be held in abey-

ance pending the availability and analysis of the interim report

from the NGPRP study or submitted to the Under Secretary

of Interior for review and concurrence prior to execution.”

Fdg. 25, App. 241.

**The Environmental Protection Agency has also recognized

the need for cumulative environmental consideration of the Re-

gion. Exercising his statutory and regulatory duty to review

and comment on major agency actions to which § 102(2)(C)

applies, see 42 U.S.C. § 1857h-7(a). 40 C.F.R. § 1500.9(a)

(1974), the EPA Administrator, in identical letters to the Sec-

retaries of the Interior and Agriculture, stated with regard to

development of the Northern Great Plains: “Environmental im-

_ es —

interim report asks, “Is the impact of two mines or

powerplants in the same area twice as great as the im-

pact of one, or is it larger ?’’ It warns, “ [T]he impacts

of coal development in the Northern Great Plains may

he greater than the projection and analytie techniques

used have been able to delineate.” NGPRP Draft In-

terim Report at V-2. The NGPRP does not purport

to provide answers to these problems. We believe,

however, that NEPA requires those answers be found.

pact statements prepared on a project-by-project basis in accord-

ance with the National Environmental Policy Act are not

adequate to evaluate the overall regional impact. What is needed

is a comprehensive, systematic and interdisciplinary study of

coal development in this region, similar to the Southwest En-

ergy Study and the oil shale development program, which sat-

isfies the letter and spirit of the National Environmental Policy

Act.”

App. 82.

The dissent suggests the various projects contemplated in the

Northern Great Plains are essentially independent of one an-

other, so that a commitment to one project entails no conse-

quences for another. Thus there is no need for comprehensive

environmental planning, and S//’?7 and Conservation Society

of Southern Vermont, Inc. v. Secretary of Transportation, 2

Cir, 508 F.2d 927 (1974), are inapposite. Dissent slip op. at

T61-763 infra. U.S.App.D.C. at ——, —— F.2d at —.

We disagree. To cite two examples beyond those suggested

above, the availability of water and manpower in the Region is

limited. Coal mining is crucially dependent upon both. Thus

development of one mine is considerably more than an irretriev-

able commitment to that mine. In the case of water supply, it

forecloses the possibility of another, environmentally preferable

mine. In the case of manpower, it creates pressure for a popu-

lation influx which, while minor for one mine, may be cumu-

latively considerable. As S7P7 and Conservation Society tell wus,

it is these sorts of environmental effects that can be best ad-

dressed in a regional, comprehensive manner. See also note 31

infra,

39a

It is our view that when the federal government,

through exercise of its power to approve leases, min-

ing plans, rights-of-way, and water option contracts,

attempts to “control redevelopment” of a definite re-

gion, it is engaged in a regional program constituting

major federal action within the meaning of NEPA,

whether it labels its attempts a “plan,’’ a “program,”

or nothing at all. Thus, supported by the Conservation

Society precedent and based on the evidence presented

to the District Court and the facts as found by the

District Court, we hold that comprehensive major fed-

eral action is contemplated in the Northern Great

Plains. The District Court’s contrary conclusion of

law was in error.”

2° The cases relied upon by appellees and the District Court

to show that no impact statement is required for a regional

plan such as the NGPRP are all inapposite. Every cited case

involved the propriety of an injunction against an individual

project pending completion of a regional EIS or other study.

None of the cases involved a direct challenge to the need for a

regional EIS. See Sierra Club vy. Callaway, 5 Cir., 499 F.2d 982

(1974); Jicarilla Apache Tribe of Indians v. Morton, supra

note 25: Indian Lookout Alliance v. Volpe, supra note 21;

Sierra Club y. Stamm, 10 Cir., 507 F.2d 788 (1974): Trout Un-

limited v. Morton, 9 Cir., 509 F.2d 1276 (1974): Environmental

Defense Fund v. Armstrong, N.D.Cal., 356 F.Supp. 151, afd,

9 Cir., 487 F.2d 814 (1973); Movement Against Destruction v.

Volpe, D.Md., 361 F.Supp. 1360 (1975); Sierra Club v.

Froehlke, S.D.Tex., 359 F.Supp. 1289, 1324-1325 (1975); Con-

servation Council of North Carolina v. Froehlke, M.D.N.C.. 540

F.Supp. 222, 227 (1972), remanded, 4 Cir., 473 F.2d 664 (1975).

Of course whether an injunction will issue in such a case de-

pends on many factors in addition to whether a regional EIS is

required, including the state of construction of the challenged

project and the comprehensiveness of the impact statement for

that project. See Sierra Club v. Callaway, supra, 499 F.2d at

987. Thus whether a regional EIS is required was not determin-

592-551 —75——5

40a

ative for resolution of the cited cases. Moreover, many of the

cases did not even raise the issue of a regional impact state-

ment, but merely sought delay of an individual project uatil

completion of a regional study that might be of some assist-

ance in preparing the individual statement. This was the situa-

tion in Jicarilla Apache Tribe of Indians v. Morton, supra, note

25, reed on most heavily by appellees. There plaintiffs sought

to delay four individual coal-fired electric generating projects

in four southwestern states pending issuance of the Southwest

Energy Study. The court sensibly rejected the claim: “If we

were to impose a requirement thet an impact statement can

never be prepared until all relevant environmental effects were

known, it is doubtful that any project could ever be initiated.”

Hi Fd at 1280. Even appellees concede that there was no

claim made in J/cari/a that a region impact statement was

necessary. Intervenor appellees’ brief at 28.

Likewise, in’ Environmental Defense Fund y. Armstrong,

supra, also heavily relied upon by appellees, the need for a re-

sional statement was not at issue. Plaintiffs there sought a

“comprehensive study,” not an EIS, of the Central Valley

Project before approval of the New Melones dam impact state-

ment. The court refused to wait for the study, noting that “no

comprehensive study has been commenced, let alone completed.”

300 F.Supp. at 139, This is in sharp contrast to this case where

a comprehensive study is under way, and the need for a com-

prehensive statement is at issue,

In Sierra Club v. Callaway, supra, the Fifth Circuit refused

to delay the Wallisville Project pending a comprehensive EIS

for the entire Trinity Basin Project. The holding was based on

its findings that Congress intended the two projects to be treated

separately, that the Wallisville Project was not, in fact, a com-

ponent of the Trinity Basin Project, that the Wallisville Proj-

ect was 72% complete while the Trinity Basin Project might not

be completed for 40 to 50 years, and that the Wallisville Project

was well under way before the effective date of NEPA. Thus

Sierra Club y. Callaway is fuil distinguishable; there was no

comprehensive plan at all.

This crucial dependence upon the facts of the case was stressed

in Sierra Club vy, Stamm, supra, also heavily relied upon by ap-

pellees, Whether the Strawberry Aqueduct and Collection Sys-

tem was itself a major federal action or merely a component of

4la

the larger Bonneville Unit, or the entire Central Utah Project,

was a question of fact as well as law, and turned crucially on

“the ‘facts’ as * * * found by the trial court * * *.” 507 F-

2d at 791. The Tenth Circuit agreed “with the trial court that

the Strawberry system in and of itself constitutes a ‘major

Federal action’ and that it is not a mere increment of either the

Bonneville Unit or the Central Utah Project requiring a final

impact statement for something more than the Strawberry sys-

tem before work may be commenced on the Currant Creck

Dam.”

Jd. at 792 793. Again we note this case was in the context of a

challenge to the individual project and did not involve the ques-

tion whether a comprehensive EIS was necessary on its own

merits. Moreover, the Tenth Circuit found the facts suflicient to

treat the Strawberry System apart from the overall project. To

the extent, however, that the Tenth Circuit proceeded on the

assumption that only one “major Federal action” could be

found, either the entire Bonneville Unit, the entire Central Utah

Project, or the Strawberry System, we disagree. It is clear to us

that a major federal action may require an impact statement

for itself and still be a part of a larger major federal action

that also requires a statement. That was the holding of S//’7/,

and we adhere to it. To the extent Sierra Club v. Stamm is

contrary, we decline to follow it.

The last important case cited to us by appellees is Trout Un-

limited v. Morton, supra. There the Ninth Circuit held that an

EIS prepared for the First Phase of the Lower Teton Division

of the Teton Basin Project was adequate despite the fact that it

did not attempt to analyze the environmental impacts of the

Second Phase. The court distinguished the case before it from

cases requiring comprehensive impact statements by noting that

the First Phase was “substantially independent” of the Second,

that approval of the Second was not a foregone conclusion since

approval of the Secretary of the Interior and the Congress had

yet to be obtained, and that the First Phase would be fully

functional even if the Second were never built. We think those

distinguishing factors fully distinguish Trout Unlimited from

the instant case where the thrust of appellants’ complaint is that

widespread development of the Northern Great Plains is virtu-

ally certain to occur, and that the effects of the individual proj-

ects can only be meaningfully assessed in cumulative terms.

Our conclusion that major federal action is contem-

plated in the Northern Great Plains does not mean,

ipso facto, that a comprehensive regional impact state-

ment is required. A statement must precede the “rec-

ommendation or report on proposals for * * * major

Federal actions.” Section 102(2)(C), 42 U.S.C. § 4332

(2)(C) (emphasis added). This raises the question of

timing that was so critical in SPI. We think it patent

that the term “proposals’’ does not encompass every

suggestion, however unlikely to reach fruition, made

by a federal officer. Certainly federal officers are en-

titled to dream out loud without filing an impact state-

ment. Thus we think it proper to inquire, before an

EIS is required, whether the proposal for action has

progressed beyond the “dream” stage into some tan-

gible form so that the time for an impact statement

is ripe. SIPI, supra, 156 U.S. App. D.C. at 409-410,

481 F. 2d at 1093-1094. We should note, however, that

the “ripeness” necessary before a statement is re-

quired is slight. Preparation of a statement must

precede, or at least accompany, preparation of the

recommendation or report on the proposal, so that

the agency may have the opportunity to assess the en-

vironmental impact of its plans before committing it-

self, even tentatively, to action, An impact statement

is designed to aid agency decision-making, not provide

an ex post facto justification for it. We fully adhere

to our statement in Calvert Cliffs’ Coordinating Com-

mittee v. AEC, supra, that

[cJompliance [with NEPA demands] that en-

vironmental issues be considered at every im-

portant stage in the decision making process

concerning a particular action—at every stage

where an overall balancing of environmental

os eT —— —

434

and nonenvironmental factors is appropriate

and where alterations might be made in the pro-

posed action to minimize environmental costs.”

146 U.S. App. D.C. at 42, 449 F. 2d at 1118. But, as

SIPI tells us,

[W]e are pulled in two directions. Statements

must be written late enough in the development

process to contain meaningful information, but

they must be written early enough so that what-

ever information is contained can _ practically

serve as an input into the decision making

process.

156 U.S. App. D.C. at 410, 481 F. 2d at 1094.

The problem SIPI notes with regard to research

and development programs applies with like foree to

defining any “proposal’’ within the meaning of Sec-

tion 102(2)(C). SIPI identified four balancing factors

that must be analyzed and weighed to determine if

the time is ripe for an impact statement. Id. Cf. 40

C.F.R. § 1500.6(d)(2). With minor modifications to

make the factors applicable to all federal actions and

not just the research and development program at is-

sue in SIPI, we adopt those factors here. Thus the

agency, or the reviewing court, should inquire as fol-

lows: How likely is the program to come to fruition,

and how soon will that occur? To what extent is mean-

ingful 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 imple-

mented ?

** Compliance with the substantive demands of § 102(2) (A)

and (D) is required, of course, even before an impact state-

ment is necessary under § 102(2)(C).

44a

As we pointed out in S7PJ, application of this test

is in the first instance a task for the agency, ‘ince

answering the questions, and balancing the answers,

clearly requires agency expertise. See id. See also

Citizens Ass’n of Georgetown, Ine. v. Zoning Comm’n

of D.C., 155 U.S. App. D.C. 233, 239, 477 F. 2d 402,

408 (1973); Wilderness Society v. Morton, 156 U.S.

App. D.C. 121, 145, 479 F. 2d 842, 866 (1973) (en

hone). While judicial scrutiny of an agency decision

that the time is not yet ripe for a statement.is, of

course, appropriate, SIPT, supra, 156 U.S. App. D.C.

at 410, 481 F. 2d at 1094, our analysis of the balancing

factors is inconclusive at this time and, because we

are told that appellees are about to resolve certain

dispositive uncertainties, we remand this case to the

District Court to allow the federal appellees initially

to make their own determination.

We find from the record from the Distriet Court

umuple evidence suggesting that, as for two of the

balancing factors, the time for a statement is indeed

ripe. Meaningful information on the effects of devel-

opment of coal resources in the Northern Great

Plains, and of alternatives to that development, is

certainly available, although not yet compiled and

analyzed. Of course it is the mere availability of such

information that matters; compilation and analysis

are the purpose of the impact statement itself.” Like-

“ The extreme importance of prempt analysis of the effects of

massive coal development of the Northern Great Plains is

emphasized by the NGPRP, which does not attempt to engage

in such detailed analysis: “Considerable uncertainty remains

regarding the socio-economic impacts of coal development in the

Northern Great Plains. Because of the complex nature of coal

development, it is extremely difficult to estimate or assess cumu-

lative impacts. However, these impacts may be critical. Is the

impact of two mines or powerplants in the same area twice as

great as the impact of one, or is it larger? Furthermore, how

454

wise the severity of the environmental effects of mas-

sive coal development of the Northern Great Plains

is clear and inclines us toward a finding of ripeness.

There is no need to expound on the effects here.”

Briefly put, a region best known for its abundant

wildlife and fish, and for its beautiful scenery, a

region isolated from urban America, sparsely popu-

lated and virtually unindustrialized, will be converted

into a major industrial complex.

Weighing the other two balancing factors is not se

clear-cut. While federal approval of development of

the Northern Great Plains seems fairly certain to oc-

cur, and to occur in the relatively near future so as to

lessen our dependence on imported oil, it seems to us

clear that the Government has not yet finally settled

on its role in granting that approval. Significantly,

the relevant geographic area for development still

seems somewhat uncertain.” Interior’s broadly con-

adaptable is the socio-economic environment? Do equal incre-

nents of change require equal adjustments or do they require

successively more? It is quite possible that the impacts of coal

development in the Northern Great Plains may be greater than

the projection and analytic techniques used have been able to

delineate. NGPKP Draft interim Report, at V. 2.”

* The effects are described vividly in appellants’ brief, and

we do not understand appellees to contest their magnitude. See

appellants’ brief at 11-18,

* Thus, while the NGPRP covers the five states of Montana,

Wyoming, North Dakota, South Dakota, and Nebraska, its

projected development of the area covers only northeastern

Wyoming, eastern Montana, and the western Dakotas. Nee. e.¢..

NGPRP Draft Interim Report, Plate 5B, Most Probable De-

velopment Forcast [s/c]. The North Central Power Study, on

the other hand, encompassed a significantly larger area, while

the Aqueduct Study covers only Montana and Wyoming. We

think that, absent abuse of this power, definition of the proper

region for comprehensive development and, therefore, the com-

464

ceived North Central “ower Study collapsed, and it

responded with the Northern Great Piains Resources

Program. While the NGPRP is intended to guide the

Government in controlling private development of the

Region, the interim report is not yet completed. As the

Government grapples with its role in the Northern

Great Plains, it has largely suspended activity therein.

Thus so long as the suspension stays in effect, irre-

trievable commitments are largely being avoided while

appellees determine the scope of the proposed federal

action.’ On the other hand, the suspension is not abso-

prehensive impact statement should be left in the hands of

the federal appellees.

The appellees make something of an issue of the differences

between the area covered by the NGPRP and the area described

by appellants in their complaint. Intervenor appellees’ brief at

23-24, 43-45; federal appellees’ brief at 4 n. 1. The District

Court also found significance in these discrepancies. ruling:

“The ‘Northern Great Plains region’ as described by the plain-

tiffs is not an entity, region, or area which has been defined by

the Federal Government by statute or executive action for pur-

poses of any Federal program, project. or action.”

Fdg. 7, App. 235 (emphasis added). We find this argument to

be without merit. In a case such as this, where appellants seek

to have the Government acknowledge that it is treating the

comprehensive development of a region as a whole, we deem it

unnecessary for the complaint to define every acre of territory

within the region being so treated by the Government. Precise

definition of the region is one of the consequences of such a

lawsuit, not a prerequisite for it. The complaint should be suffi-

ciently precise to put the Government on notice of the scope of

plaintiff's claim. That was clearly achieved here; indeed, the

planning maps of the NGPRP released after initiation of this

suit revealed the area defined by the appellants to describe vir-

tually precisely the area actually considered for development by

the NGPRP.

It is the lack of definition of the proposal for action and

the suspension of activity in the region that crucially distinguish

this case from Conservation Society of Southern Vermont, Inc.

v. Secretary of Transportation, supra note 28, see slip op. at

47a

lute; four mining plans have been approved in the

past two years and four more are ready for approval,

stayed only by our temporary injunction.

Thus analysis of the four balancing factors is some-

what inconclusive, inclining us simultaneously toward

a finding of ripeness and a desire to stay our hand

while appellees further define their roles. However,

we find it unnecessary to reach a conclusive resolution

of the question at this time, for the uncertainties in-

clining us toward restraint are about to be, resolved.

We are told that the final interim report of the

NGPRP is about to be issued; indeed, it may have

issued already. According to the federal appellees, they

will then feci free to begin approving private activity

in the Northern Great Plains. We think the federal

appellees will also be in a position, upon issuance of

the interim report, to decide more definitely upon their

role in the development of the Northern Great Plains,”

and we think we should await their definition. If, as

has been their goal, that role is one of controlling

745-746, supra U.S. App. D.C. at ——, —— F. 2d at ——.

In Conservation Society the scope of the proposed action was

clear—the entire 280-mile length of Route 7—and irretrievable

commitments—the 20-mile segment under construction—were

being made that would determine the course of future action.

Thus the proposal was sufficiently ripe to demand preparation

of a comprehensive impact statement.

Jt is admitted that the federal appellees intend to use the

NGPRP to help define the need and scope of future impact

statements in the Northern Great Plains. Supp. Fdg. 6.

The fact that appellees’ plans to control development of the

Northern Great Plains may not spring full-blown from issuance

of the NGPRP interim report is, of course, of no consequence.

The impact statement is intended to aid agency planning and

decision-making before the final recommended proposal for ac-

tion is made. It is enough that the scope of the proposal is

sufficiently clear that consideration of its environmental] impact

is possible.

48a

development of the region, then, as we have made clear

above, a comprehensive EIS should accompany the

proposai for action, which presumably would be em-

bodied in a final NGPRP report.” If, contrary to

expectations, the federal appellees settle upon

another role in the development of the Northern

Great Plains, or upon no role at all, they must decide

whether an impact statement is required.” If they

decide in the negative, we will require “a statement

of reasons why [they believe] that an impact state-

ment is unnecessary.” “ Arizona Publie Service Co. vy.

“If the federal appellees decide to prepare a comprehensive

regional EIS for the Northern Great Plains, it is, of course. of

no consequence to us what form it takes. The EIS may be

incorporated in already planned statements for individual

projects, it may be subdivided into subregional statements, or

it may be issued as a whole. All that matters is that a compre-

erage study of the region is made. SIPI, supra note 15, 156

US. App. D.C. at 408-409, 481 F. 2d at 1092-1093: Natural

al ‘es Defense Council v. Morton, D.D.C., 388 F. Supp. $29

(1974). See notes 15 & 23 supra.

It is likewise of no concern whether the appellees jeintly pre-

pare a comprehensive statement or whether they each prepare

their own, so long as the cumulative effect of @77 the contested

federal actions are fully assessed.

** We note that an impact statement might be required for

the negative decision not to coatrol development of the Northern

Gireat Plains, as well as for the positive decision to do so. See

Arizona Public agers Co. v. FPC, 157 U.S. App. D.C. 272.

280 n. 21, 483 2d 1275, 1282 n. 24 (1973); City of New

York v. United Band EDNY.. 357 F. Supp. 150, 160 (1972)

(three-judge court) (Friendly, J.).

*S While we will allow the federal ettin, in the first in-

stance, to make the decision whether a regional impact state-

ment is necessary for the Northern Great Plains, we remind

them that the requirements that such a statement issue for

major federal action, even if regional in character, and that

environmental factors be considered at every state of agency

decision-making about such action are not inherently flexible

I — — ————————————i

49a

FPC, 157 U.S. App., D.C. 272, 279, 483 F. 2d 1275,

1282 (1973). See also STPT, supra, 156 U.S. App. D.C.

at 410-411, 481 F. 2d at 1094-1095; Hanly v. Klein-

dienst, 2 Cir., 471 F. 2d 823 (1972), cert. denied, 412

U.S. 908, 93 S.Ct. 2290, 36 L.Ed.2d 974 (1973). Ac-

cordingly, we remand this case to the District Court.

The federal appellees must decide within 30 days of

issuance of the NGPRP Interim Report, or the date

of this opinion, whichever is later,” whether to pre-

pare a comprehensive, programmatic impact statement

for the Region, and they must report their decision,

and the reasons for it, to the District Court.“ If ap-

pellees decide against attempting to control develop-

ment of the Northern Great Plains, they must also

or discretionary. See Calvert Cliffs’ Coordinating Committee v.

AEC, supra note 25, 116 U.S. App. D.C. at 38, 449 F. 2d at

1114. But see note 36 supra.

* Should, for some reason, the NGPRP interim report not

issue within a reasonable time after the date of this opinion, ap-

pellants may petition this court for a further order.

*° Secretary Morton seems to have conceded that some sort of

regional or subregional statement will be necessary. “It is po-si-

ble a decision will be made to prepare a statement for the en-

tire Northern Great Plains region, but information available

may indicate that statements on smaller subregions, geologic

structures, basins or selected individual actions will fulfill the

policy and procedural requirements of the National Environ-

mental Policy Act in a more satisfactory manner. Until those

decisions are reached no new coal leases will be issued except

pursuant to the short-term leasing policy. The interim report

from the NGPRP * * * will provide an information founda-

tion for dee sion-making and planning.”

Affidavit of Secretary Morton, App. 194-195. We agree that the

NGPRP wil provide a basis for making the decision whether

to prepare a comprehensive impact statement for the Northern

Great Plains. We only order that the Secretary, guided by our

interpretation of the procedural and policy requirements of

NEPA, make that decision.

50a

report, in detail, what the federal role in the Region

will be. See Arizona Public Service Co. v. FPC, supra,

157 U.S. App. D.C. at 280, 483 F. 2d at 1282. Appel-

lants will be able to challenge appellees’ impact state-

ment decision and, if appellees decide not to prepare

a comprehensive statement, to present again to the

District Court their theory that the geographie, envi-

ronmental, and/or programmatic¢ interrelationship of

activity in the Region mandates such a statement.

Sinee we refer back to appellees the decision

whether to prepare a comprehensive impact statement

for the Northern Great Plains, we continue our tempo-

rary injunction of January 3, 1975 until that decision

is reached. This will preserve, in large part, the status

quo pending appellees’ decision, While we do not order

issuance of any more comprehensive injunction at this

time, we note that our decision to refer the issue of a

regional EIS to appellees for resolution in the first

instance is prompted in large part by appellees’ for-

bearance in authorizing activity in the Region pend-

ing issuance of the NGPRP. In this regard, we have

two observations. First, while Interior’s interim policy

seems to have been embarked upon with considerable

good faith, we would have more confidence in it if the

escape hatch were not quite so large. As matters stand,

requests for approval of any activity within Interior’s

jurisdiction in the Northern Great Plains

will be held in abeyance pending the availability

and analysis of the interim report from the

NGPRP study or submitted to the Under See-

retary for review and concurrence prior to

execution.

Affidavit of Secretary Morton, App. 194 (emphasis

added). No standards at all are suggested by which

5la

the Under Seeretary will grant his concurrence. We

think it would be appropriate, particularly if this pol-

icy were to continue following a decision to prepare a

comprehensive impact statement, for the Secretary to

determine and publish standards by which this sig-

nificant exception will operate. Moreover, the remain-

ing federal appellees’ policy of forbearance seems to

have dissolved, although they have actually approved

few actions in the Region. See slip op. at 734-735

supra, U.S. App. D.C. at , F. 2d at

. We think it would be appropriate for these ap-

pellees to adopt a policy similar to Interior’s.

Second, as we noted in denying appellants’ motion

for a preliminary injunction last spring, the spectre

of significant, and unnecessary, harm to large tracts

of valuable wilderness still remains. The number of

ayplications for federal approval of various activities

is large. We urge appellees, while deciding whether

to prepare a comprehensive impact statement for the

Northern Great Plains, to take no actions that would

defeat the purpose the impact statement is designed

to serve. Needless to say, however, the courts remain

open, to appellants or others, should the federal ap-

pellees decide nonetheless to approve any private en-

deavors in the Northern Great Plains.

Whether an injunction against activity, either on-

going or proposed, in the Northern Great Plains

should issue pending preparation of a comprehensive

regional impact statement is a question we need not

reach.” We note only that a responsible policy of

* The District Court concluded that even if a regional im-

pact. statement were required appellants had shown no irrepa-

rable harm that would justify an injunction barring activity in

the region until the statement were completed. Concl. 11, App.

248. In this regard, we direct the court’s attention to this court’s

recent decision in Jones v. District of Columbia Redevelopment

52A

restraint by the federal appellees with respect to au-

thorizing such activity might make the question moot.

This case has presented difficult questions involving

the proper balance between an agency’s discretion in

deciding whether, and when, to issue an environmental

impact statement, and the judiciary’s role in oversee-

ing exercise of that discretion. We believe that, to the

fullest extent possible, it is for the agency to imple-

ment the demands of NEPA. While the courts should

not shirk their role, it is the responsible compliance

of the federal agencies that will make environmental

planning a day-to-day occurrence and that will make

the needless abuse of our priceless national heritage a

nightmare of the past. We are confident the agencies

will not lose, or misuse, this opportunity.

Reversed and remanded.

MackKrynoy, Circuit Judge (dissenting) :

In the foregoing opinion, the majority has remanded

this ease with instructions that it be held in abeyance

pending the issuance of a “study” presently being pre-

pared by the Federal appellees. It is anticipated that

the release of the study will enable the various agen-

cies involved to decide within 30 days thereafter

whether ‘‘a comprehensive, programmatic impact

statement for the Region”' is necessary. Since I con-

clude that a regional environmental impact statement

(EIS) is not presently required in these cireum-

Ageney, 162 U.S. App. D.C. 366, 376, 499 F. 2d 502, 512 (1974),

which makes clear that the harm to be considered in issuing

an injunction in NEPA cases matures at the time an impact

statement becomes necessary but is not filed.

* Majority Op. at 755, U.S. App. D.C. at ,

F. 2d at ——.

53a

stances, I find no need to remand the ease for further

proceedings and accordingly dissent from the action of

the majority.

i The only immediate practical effects of the major-

ity’s decision is to continue the temporary injunction

as ordered by this court on January 3, 1975, in order

to *‘preserve * * * the status quo.’’* My objections to

the continuance of this injunction are the same as

were indicated in my dissent to the original order. See

Sierra Club v. Morton, 167 U.S. App. D.C. ——, 509

F. 2d 533, 534-36 (1975).

The trial court concluded that appellants’ complaint

failed to present a justifiable case of controversy

because

the courts will not review the validity of sup-

porting statements or studies until final federal

actions [are] taken under NEPA section 102

(2) and until after final agency action has been

taken with respect to the individual project.’

While the majority concedes that ‘‘as a general propo-

sition of law NEPA challenges to individual projects

ean be brought only after final agency approval of a

* Td.

* Conclusions of Law, € 7, App. 247, citing Scientists’ Institute

for Pub. Info. v. AEC, 156 U.S. App. D.C. 395, 481 F. 2d 1079,

1091 (1973); Natural Resources Defense Council y. Morton, 148

U.S. App. D.C. 5, 458 F. 2d 827, 836 (1972); Coalition for Safe

Nuclear Power v. AEC, 150 U.S. App. D.C. 118, 463 F. 2d

954, 955 (1972); Thermal Ecology Must Be Preserved y. AEC,

139 U.S. App. D.C. 366, 433 F. 2d 524, 526 (1970); Gage vy.

Commonwealth Edison Co., 356 F. Supp. 80, 86 (N.D. IIL.

an Sherry v. Algonquin Gas, 4 ERC 1713, 1714 (D. Mass.

72).

64a

project,” it interprets Scientists’ Institute for Publie

Information, Ine. vy. AEC (SiPI), 156 U.S. App. D.C.

395, 481 F. 2d 1079 (1973), as holding that a challenge

to a comprehensive program need not be made through

an attack on an individual project.‘ As indicated

hereafter, the record in this case does not establish

the existence of any comprehensive regional program

of the type found in S7PIJ which could justify requir-

ing the preparaticy of a regional environmental

impact statement at this time. However, even if one

concedes that such a statement might be appropriate,

the District Court was still correct in coneluding that

an action divorced from the review of a statement

covering an individual project is not a proper means

for the determination of appellants’ claims.

In deciding that the instant case is a proper vehicle

for raising a claim for a regional EIS, the majority

has overlooked the required relationship between the

statements prepared on individual projects and the

‘“‘regional’’ statement appellants seek. If appellants

are correct in asserting that NEPA requires the prep-

aration of a regional EIS before any development of

the Northern Great Plains may proceed, then all the

statements covering individual projects necessarily

must be at present insufficient to comply with NEPA.

Conversely, if an EIS on an individual project is

found to comply with NEPA, it necessarily follows

that NEPA does not require the preparation of a

more comprehensive statement before that project

may proceed.

Impact statements have already been issued for the

Westmoreland mine, the Peabody Coal Company proj-

ect, and four mines and a railroad right-of-way in the

* Majority Op. at n. 20.

55a

Eastern Powder River Basin. See Supp. Finding on

found to be sufficient under NEPA in Redding v.

Morton, Civ. No. 74 12-BLG (1). Mont., May 1, 1974),

appeal pending, 9th Cir. No. 74 1984, and the remain-

ing statements apparently have not yet been chal-

lenged in court.’ My dissent to the issuance of the

temporary injunction states, and I continue to believe,

that the proper method to use in assessing the need

for a regional statement is for appellants to file an

appeal challenging the sufficiency of the EIS covering

an individual project.’ Appellants’ apparent inability

to successfully challenge the statements on individual

projects as too limited in scope is strong, if not com-

pelling, evidence that a ‘‘comprehensive regional

EIS” is not required at this time.

The starting point for any discussion of the need for

an environmental impact statement is of course sec-

* Appellants’ argument that it would be “inconvenient” for

them to attack specific federal actions does not merit serious

consideration by this court.

°The majority asserts: “There has been no contention that

any of these individual statements comprehensively study the

regional impact of coal development in the Northern Great

Plains, and our examination of the statements makes it clear

that they do not do so.”

Majority Op. at n. 15. However, the real question in this case

is whether such a comprehensive study is necessary here. As

here indicated, this is merely another form of the inquiry into

the sufficiency of statements on individual projects. Since the

siflicieney of the individual statements was not litigated before

the District Court. if the majority intended this statement as a

finding based on its own examination that they are insufficient

to support the projects they cover, it would be exceeding the

permissible scope of appellate review.

56a

tion 102(2)(C) of the National Environmental Policy

Act (NEPA), 42 U.S.C. § 4332(2)(C):

(2) all agencies of the Federal Government

shall—

_ * * * *

port on proposals for legislation and other ma-

jor 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 im-

plemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-

term uses of man’s environment and the main-

tenance and enhancement of long-term produc-

tivity, and |

(v) any irreversible and irretrievable com-

mitments of resources which would be involved

in the proposed action should it be implemented.

The crucial question here is whether the Federal ap-

pellees have ‘‘proposed’’ ‘‘major federal actions”

which require the preparation of an EIS covering all

eoal-related development in the “Northern Great

Plains Region.” *

* Appellants’ complaint described the area in issue as “north-

eastern Wyoming, eastern Montana, western North Dakota and

western South Dakota.” App. 2. By a stroke of luck, this

vague “region” roughly conformed with the 63 county area

which the Northern Great Plains Resources Program (NGPRP)

study later identified as the area in which development was

likely to occur. However, the conclusion that a region has

potential for developments is a far cry from a declaration that

the federal government is undertaking a program of coordi-

nated development of the region. The District Court correctly

concluded: “The ‘Northern Great Plains region’ as described

574A

To place this case in perspective, it is important to

keep in mind exactly what is not at issue. The federal

appellees do not deny that they are taking actions

related to coal development within this region. On the

contrary, several projects are admiited to be in var-

ious stages of development, and the agencies have

consistently prepared impact statements prior to tak-

ing action.” Nor is there any contention that the proj-

ects which have been approved or which may be ap-

proved in the future are not ‘‘major.” Furthermore,

the agencies have consistently required that the EIS

on each project consider the cumulative environmental

impacts of related developments.’ Where appropriate,

by the plaintiffs is not an entity, region, or area which has been

defined by the Federal Government by statute or executive

action for purposes of any Federal program, project, or action.”

Finding of Fact, 7, App. 235. Permitting appellants to define

their own region for purposes of this action raises the clear

possibility that other potential plaintiffs could seek an infinite

progression of “regional” statements covering “regions” of their

own choice, thus seriously disrupting any attempt by the federal

appellees to deal with the development of a critical national

resource. The majority recognizes the danger posed by its de-

cision to allow appellants to maintain this action (Majority Op.

at 745-747, —— U.S.App.D.C. at ——, —— F.2d at ——, ——)

but declines to give the District Court any guidance on whether

it must allow new plaintiffs to maintain suits seeking to compel.

for example, the preparation of statements covering all coal

deposits in the nation or covering a single Basin in the North-

ern Great Plains Province, both of which “regions” have also

been the subject of various studies. This entire problem could be

avoided simply by requiring appellants to challenge a particular

federal action, thus enabling the court to evaluate the extent of

the environmental impact from that action and define the region

accordingly.

* See, e. g., the impact statements prepared for the Westmore-

land Resources and Peabody Coal Compaay mines. P

*The Preface to the Final Environmental Impact Statement

on the Eastern Powder River Coal Basin, Vol. I, illustrates

58a

they have prepared impact statements which consider

together several related developments within an area.”

the considerations used by the federal appellees in determining

the necessary scope of an EIS: “Further, to meet the intent of

the Act in the most productive fashion, it is necessary to ex-

amine the general geographic area of the proposed and poten-

tial actions. The geographic area for basic consideration is that

part of the Powder River Coal Basin in Wyoming lying gen-

erally eastward from tlie Powder River to the outcrop line

of the coal resource and from somewhat north of Gillette to a |

point somewhat south of Douglas. The area delineation is based

in part on present and anticipated Jevels of mining activity,

differing quality of the coal resource, different physical arrange-

ment of the coal beds, somewhat different mining techniques

required and differing physical reclamation requirements. These

considerations having a broader scope of geographic impact

such as social conditions, economic factors, atmospheric influ-

ence, water resources, and recreation uses are treated on a

larger regional basis than the primary study area. This state-

ment discusses the existing environment, evaluates the collective

impact of the proposed actions and, insofar as now possible,

the impacts of potential future coal mining within the geo-

graphic area described above. This statement also examines in

detail certain ‘proposed activities for which federal actions are

required.”

See. e. q.. the Final Environmental Impact Statement. for

the Eastern Powder River Coal Basin, which covers four mines

and an associated rail right-of-way. More recently, Interior has

released a draft EIS for the Belle Ayr South Mine of the

Amax Coal Comnany, also located in the Eastern Powder River

Basin. The Preface to that document states:

“In January 1974, the Departments of Interior and Agricul-

ture and the Interstate Commerce Commission decided that, —

under provisions of Section 102 of the National Environmental

Policy Act of 1969, an environmental impact statement must be

prepared before any decision could be made on pending pro-

posals for major development of federally-owned coal in the

Eastern Powder River Basin of Wyoming. At that time, there

were four major strip mine plans pending approval before

the Department of the Interior. There was also pending before

59a.

“Part I of that final environmental impact state-

ment (hereinafter designated FES 74-55) was de-

voted to a regional analysis encompassing the existing

environment, all projected coal development and the

cumulative effect of this development on the environ-

ment. Parts II through VI of the FES specifically

dealt with the four mine plans and the construction of

the railroad. |

“Due to the increased nationwide demand for low

sulphur coal for the generation of electricity, it was

anticipated that a number of large strip coal mines,

in addition to those four mines considered in Parts

III through VI of FES 74-55, would also be proposed

for development of Federal coal leases in the near

future in the Eastern Powder River Coal] Basin. Ac-

cordingly, the regional analysis of FES 74-55 included

data and information from every proposed operation

known to be under consideration by the various lease-

holders in the study area. In this way the cumulative

impacts of the total potential development could be

assessed. Subsequent to initiation of preparatory ef-

forts for FES 74-55 and prior to its filing in final

form, other proposed mining and reclamation plans

for development of existing Federal coal leases in the

the Interstate Commerce Commission proposed construction of a

railroad some 113 miles in length, between the Belle Ayr Mine

spur southeast of Gilletie, Wyoming, and Douglas, Wyoming.

This railroad was to serve the coal mines proposed to be de-

veloped along the proposed right-of-way in the basin. The con-

struction of this railroad line, the four mining proposals, as

well as a number of other anticipated or possible future coal-

related developments and all their impacts on the environment,

were evaluated in an environmental impact statement entitled

“Proposed Development of Coal Resources in the Eastern

Powder River Basin of Wyoming.” The final statement was

filed with the Council on Environmental Quality by the De-

partment of the Interior on October 18, 1974.

604

area were filed for approval with the Geological Sur-

vey, Department of the Interior, as required by law.

“Because of the submission date, these plans could

not be included for site specific analyses in FES 74-55.

In the assessment which follows, the site specific as-

pects of the proposed mining and reclamation plans

for the South Belle Ayr Mine of the Amax Coal

Company, are analyzed using information and data

previously published in FES 74-55 together with in-

formation gained from field observations and company

reports. Part I of FES 74-55 is incorporated herein

by reference.”

What appellants present to this court is a claim that

all these good faith efforts on the part of the various

agencies are not sufficient to satisfy the demands of

section 102(2)(C). To earry out the alleged require-

ments of NEPA, appellants assert that before any de-

velopment in the region may be allowed to go forward,

the agencies concerned must first prepare a “compre-

hensive” analysis of the environmental impacts of all

present and potential development within the region.

TIT

By reversing the decision of the District Court, the

majority is indicating-its belief that there is some sub-

stantial possibility that appellant’s claims will>ulti-

mately be suecessful. To reach this conclusion, the

opinion reasons that major federal action can be eom-

hined to create a new major federal action for which

an EIS is necessary. Its authority for this proposition

is this eourt’s decision in Scientists’ Institute for Pub-

lie Information, Ine. v. AEC (SIPI), 156 U.S. App.

D.C. 395, 481 F. 2d 1079 (1973) and the Second Cir-

cuit decision in Conservatien Secietv of Southern Ver-

mont, Ine. v. Secretary of Transportation, 508 F. 2d

927 (2d Cir. 1974). There ts no doubt STPT holds that

6la

a comprehensive statement may be required tn certain

circumstances but like any holding it is colored by its

facts and its reasoning. The difficulty arises in the ap-

plication of that decision to the facts here.

The crucial consideration which justified the re-

quirement of a statement covering more than an individ-

ual project in both SIPI and Conservation Society was

the presence of irretrievable commitments of resources

beyond what was actually expended in an individual

project. In SIPI, each development in the Liquid

Metal Fast Breeder Reactor Program made it more

unlikely that the agency could in the future abandon

its investment in favor of some alternate energy

source:

The manner in which we divide our limited

research and development dollars today among

various promising technologies in effect deter-

mines which technologies will be available, and

what type and amount of environmental effects

will have to.be endured, in the future when we

must apply some new technology to meet pro-

jected energy demand.

481 F. 2d at 1090. Similarly, the court found in Con-

servation Socicty that the construction of a 20-mile

segment of highway would generate traffie and thus

create pressure for further construction along the en-

tire route and foreclose consideration of alternatives

to highways.

Phrasing these decisions in terms of the potential

‘*regional’’ development at issue in the instant case, it

is clear that the courts in SJPI and Conservation So-

ciety found that a federal action at one point in the

“region” would cause a ripple effect which would

eventually have an impact on future federal actions

elsewhere in the ‘‘region.’”’ Because of this effect, each

court determined that the agency involved was re-

quired to prepare a comprehensive statement for the

62a

entire “region’’ before it could approve an indi-

vidual project within the “region”.

The reason for the above hoidings hecomes clear

when one considers the purpose underlying the prep-

aration of impact statements. Virtually every federal

action ‘‘significantly affecting the quality of the hn-

man environment’? will necessarily involve some ir-

reversible and irretrievable commitment of resources.

NEPA only requires that the agency disclose these

environmental costs and consider them in arriving at a

decision; it does not prevent an agency from proceed-

ing with a project if the benefits outweigh the costs

disclosed in the EIS. Thus where the only irretriev-

able commitments of resources are those directly asso-

ciated with an individual project, an impact state-

ment covering that project is sufficient to enable the

agency to act. However, in situations where the deci-

sion on one federal project was found to presently

cause irretrievable commitments on future projects or

the foreclosure of future.options, this court and the

Second Circuit quite properly found that an EIS for the

entire project was necessary before the initial step could

be taken.”

"The Ninth Circuit recently arrived at a similar interpreta-

tion of S/P/: “Nor is Scientists’ Institute for Public Informa-

tion v. Atomic Energy Comm’n, 156 U.S.App.D.C. 395, 481

F. 2d 1079 (1973) particularly pertinent here. There an EIS

was required for continued research and development on the

AEC’s Liquified Metal Fast Breeder Reactor (ILMFBR) Pro-

gram covering foreseenble environmental effects if such a reac-

tor were put into future use. The LMFBR has no independent

significance absent such future uses. The court was eareful to

emphasize that its decision to require an ETS was based in large

part upon the significance of the overall reactor program as a

radical change in the manner in which the entire nation pro-

duces electricity. See 481 F. 2d at 1089.” Trout Unlimited v. Mor-

ton, 509 F. 2d 1276, 1285 n. 13 (9th Cir. 1974).

Mae es

63a

Applying the above analysis, the instant case is

readily distinguishable from beth S7PI and Conser-

vation Society. Any coal-related federal action will

undoubtedly require certain associated developments.

For example, the approval of a mining plan will most

probably require the granting of rail rights-of-way and

the construction of housing facilities for mine em-

ployees. However, these are direct consequences of the

initial action, and the agencies involved have always

taken the position that such impacts must b

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