# Petition — Kleppe v. Sierra Club

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1976
- **Citation:** 427 U.S. 390

## 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
v.
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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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

10
16

16
15
18
16
10
16
16

16

19 _

He

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
v.

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)

2

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-

3

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— .

* * * * +

(C) include in every recommendation or re-
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

4

(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.

5

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

6

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.

7

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.

8

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).

9

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).

10

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.

11

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.

12

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

13

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

14

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,

15

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.

16

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 —

17

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-

18

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

19

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.

20

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.

21

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
v.

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)

24

(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

3A

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-

4a

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

5A

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.

6a

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

7A

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

8A

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.

9a

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
Il

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,

TT

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).

EE

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.

+ 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 be consid-
ered in the EIS which precedes approval of the min-
ing plan. This record is devoid of the type of commit-
ment of “‘regional’’ resources which justified the re-
sults in SIPI and Conservation Society. Developments
in one part of the Northern Great Plains are essen-
tially independent from developments elsewhere in the
region. For example, the decision to permit mining of
sub-bituminous coal in Wyoming to which the Federal
Government has the mineral rights, in no way commits
Interior to approving proposals for mining lignite,
similarly owned by the United States, in North Da-
kota. Even within each of the Basins which comprise
the Region, development of some portion of the coal
reserves does not irretrievably commit the federal

agencies to permit development of the entire reserve.

Furthermore, it is clear that even the largest of the
proposed projects will not have an environmental im-
pact on the entire Northern Great Plains Region. It
may indeed be the case that widespread development of
this area will eventually occur, but the impetus for
that development will come from the nation’s need for

a

644

coal and not from the fact that partial development of
the region has been allowed.”

IV

If SIPT and Conservation Society were the only
relevant decisions, the majority’s arguments might
have some appearance of validity. However, several
courts have considered arguments sueh as those ad-
vaneed by appellants, in cases which presented facts
that were considerably closer to the instant case than
SIPI and Conservation Sociciy, and have determined
that a ‘‘regional’’ EIS was unnecessary before indi-
vidual projects within the *‘region” could be approved.
Sce Trout Unlimited v. Morton, 509 F. 2d 1276 (9th

" The Majority Opinion at n. 28 cites two “examples” of how
it contends the various present and potential developments are
interrelated—the availability of water supplies and manpower
resources in the region. Actually, the use of the term “man-
power” is a misnomer since what the majority is really talking
about is the pressure of the influx of necessary additional man-
power on the area. Insofar as one mine creates pressure for a
population influx, that is just one more factor to be considered
in the EIS for that particular project. However, the opening of
that mine in no way commits the agencies to authorizing other
mines which would require the importation of additional man-
power not already in the area at a future date. With respect to
water resources, there is no showing here that the strip mines,
which presently are the only projects actively being developed,
have sufficient impact on regional water resources to foreclose
future alternatives. The proper time to consider such problems
will be when the agencies move*to a proposed type of develop-
ment which does tax regional resources. If there is insufficient
water for a-particular type operation, then that type operation
would not be used. In any event, this entire discussion points up
the importance of appellants’ failure to show at any point in
this record that the EIS on any particular project has failed to
adequately consider all relevant environmental impacts.

§

654A

Cir. 1974) ; Sierra Club v. Stamm, 507 F. 2d 788 (10th
Cir. 1974); Sierra Club v. Callaway, 499 F. 2d 982
(5th Cir. 1974) ; Environmental Defense Fund v. Arm-
strong, 356 F. Supp. 181 (N.D. Cal.), aff'd, 487 F. 2d
$14 (Sth Cir. 1973) ; Jicarilla Apache Tribe of Indians
v. Morton, 471 F. 2d 1275 (9th Cir. 1973); Movement
Against Destruction v. Volpe, 361 F. Supp. 1360 (D.
Md. 1973).

In its attempt to evade the clear holdings of these

eases, the majority dismissed them with the assertion

that:

Every cited case involved the propriety of an
injunction against an individual project pend-.
ing completion of a regional EIS or other study.
None of the cases involved a direct challenge
to the need for a regional EIS.
Majority Op. at n. 29. This is a classic example of a
distinction without a difference. Surely, it is not rea-
sonable to suggest that the decisions reached by other
courts are somehow less sound because they were able
to assess the need for a regional EIS in the context
of a challenge to the sufficiency of a specific statement
whereas this court is considering a challenge in the
abstract without ever determining that a particular
EIS does not comply with the dictates of NEPA. If
any inference can be drawn from the majority’s dis-
tinction, it would be that the cited cases are entitled
to considerably more weight than this court’s decision
in the instant case.

In Jicarilla, supra, the court rejected contentions
that impact statements issued in connection with each
of several coal-fired electric generating projects in
four southwestern states violated NEPA because they
were issued prior to the completion of a Southwest
Energy Study by the Interior Department. The ma-

664

jority is correct in pointing out that the plaintiffs in
Jicarilla were specifically seeking delay pending the
completion of a *‘study” rather than delay pending the
preparation of a regional EIS, but rather than form-
ing the basis of a distinction, this fact emphasizes its
similarity to the instant case. The Southwest Energy
Study ‘was designed to evaluate the problems created
by further development of coal-fired electric power in
the Southwest ;”’ (471 F.2d at 1279), a purpose quite
similar to that of the Northern Great Plains Resources
Program study. The Majority opinion at this point ap-
parently overlooks the fact that its opinion ultimately
does not direct the preparation of a regional EIS for
the Northern Great Plains but rather just arrests de-
velopment within the region until the study issues, at
which point the need for a regional EIS would be
assessed. The Ninth Circuit: found that this sort of
delay was not mandated by NEPA, and my conelusion
on the facts of this case is to the same effect.

In Environmental Defense Fund v. Armstrong,
supra, the Ninth Cireuit affirmed a District Court deci-
sion rejecting an argument that an EIS covering the
New Melones Dam project was inadequate because it
did not include a ‘‘comprehensive study” covering the en-
tire California Central Valley Project. Although the
plaintiffs once again requested only a study and not a
regional EIS, the language of the District Court is
instructive :

Under these circumstances there is no re-
quirement under NEPA that the EIS with re-
spect to the New Melones Project be delayed
until a comprehensive study of the Central
Valley Project be completed. So long as each

me federal action is undertaken individually
not as an indivisible, integral part of an

67A
integrated state-wide system, then the require-
ments of NEPA are determined on an individ-

ual major federal action basis. Plaintiffs’

suggestion that there is need for a comprehen-
sive study of the Central Valley Project should
be made to the Congress, and not to the Court.

306 F.Supp. at 139. As is stated above, the federal
actions related to coal development in the Northern
Great Plains fall largely into this same category. The
majority notes that the court in Armstrong refused
to wait for the study because no comprehensive study
had been commenced, and therefore finds the case to
be in sharp contrast to the instant case where the
NGPRP Study is under way. It is revealing, however,
that the majority does not find this fact to be of sig-
nificance in its discussion of Jicarilla where the South-
west Energy Study had been released by the time the
case was decided.

The remaining cases cited on slip op. at 763, 764,
supra,—— U.S.App.D.C. at , F.2d at .
involved demands that a comprehensive EIS be pre-
pared prior to the approval of individual projects and
thus are squarely on point with the instant case. In
Sierra Club vy. Callaway, supra, the Fifth Cireuit re-
versed a District Court decision which had ordered
that construction of the Wallisville Reservoir project
be held up pending the preparation of an EIS cover-
ing the entire Trinity Basin project. The court held:

We conclude that the Wallisville and Trinity

' River Projects are not interdependent. The
nexus between the projects is not such as to
require an EIS evaluation of the Trinity
Project as a condition precedent to an EIS
evaluation of Wallisville. The Wallisville EIS
should speak for itself. Wallisville is a separate
viable entity. It should be examined on ifs own

68a

merits. Although it has been made compatible
in certain of its features with Trinity it is not
a mere component, increment, or first segment
of Trinity. The court erred in so holding.

499 F. 2d at 990. Faced with a similar situation, the
Tenth Circuit reached the same conclusion in Sierra
Club v. Stamm, supra. There the plaintiffs attacked
the final EIS for the Strawberry Aqueduct and Collee-
tion System, a subunit of the larger Bonneville Unit
which was in turn a part of the Central Utah Project,
hecause inter alta:

(1) The Statement is too narrow in its scope
and should include the cumulative and collee-
tive environmental impact of the entire Central
Utah Project; (2) the Statement is incomplete
in that it is a fina] statement as to the Straw-
berry Collection System only, and that it
should, but does not, encompass all increments
of the Bonneville Unit; —

07 F. 2d at 790. Relying on Callaway and Armstrong,
the court concluded:

In sum, then, we agree with the trial court
that the Strawberry svstem in and of itself con-
stitutes 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 system before work may be
commenced on the Currant Creek Dam.

907 F. 2d at 792 93. Thus both the Tenth and Fifth
Cireuics decided cases against the Sierra Club on the
same grounds that they assert here.

In its most recent decision on this subject, the Ninth
Cireuit onee again rejected claims that an EIS of
larger scope was required by NEPA. The Teton Dam
and Reservoir project had been divided into two

a

_——

- —

69a

phases. In Trout Unlimited v. Morton, supra, the
plaintiffs argued that the EIS prepared for the initial
phase was fatally inadequate because it did not discuss
the environmental impact of the Second Phase. After
considering the cases relied upon by the majority here,”
the court concluded:

The distinction between those situations in
which it has been held that the EIS must cover
subsequent phases and that before us is that
here the First Phase is substantially indepen-
dent of the Second while in these in which the
EIS must extend beyond the current project,
that project was dependent on subsequent
phases. The dependency is such that it would be
irrational, or at least unwise, to undertake the
first phase if subsequent phases were not also un-
dertaken. This is not the case here.

509 F. 2d at 1285 (footnote omitted).

The majority attempts to evade the fact that its
decision is contrary to the clear weight of authority
elsewhere in the federal courts of the nation by argu-
ing that each of the foregoing decisions involved a
“erucial dependence upon the facts.’’** Obviously all
judicial decisions turn on the facts which are pre-
sented to the court, but the majority has failed to offer
any convincing explanation as to why the facts of the
instant case, which present the same situations as the
facts in the cases cited above, require a different result.

The regional water projects involved in Callaway,
Stamm and Trout Unlimited had certanly progressed _

8 The court discussed S/P7 and Thompson v. Fugate, 347
F. Supp. 120 (D. Conn. 1972) and Indian Lookout Alliance vy.
Volpe, 345 F. Supp. 1167 (S.D. Iowa 1972), modified, 484 F. 2d
11 (8th Cir. 1973). The latter two cases involved attacks on
impact statements covering segments of highway and thus pre-
sented issues similar to Conservation Society. ,

% Majority Op. at n. 29,

70A

to the point where the federal agencies involved had
concrete notions as to the ultimate scope of regional
development, yet the court in each case found it un-
necessary to prepare a regional EIS before acting on
the initial phases of the development. In contrast, even
if we ignore the statements by the federal appellees
that there is at present no overall coordinated program
for the development of coal resources in the Northern
Great Plains, appellants have failed to establish that
planning has progressed to the point where some pro-
posal for major regional federal action exists which
could be the subject of a regional EIS.

Furthermore, although there are undoubtedly some
interrelationships between development projects along
the course of a single river or in a single watershed
basin, the Fifth, Ninth and Tenth Circuits were still
able to find the projects sufficiently independent to
render a more comprehensive EIS unnecessary. The
potential development of the Northern Great Plains
lacks even this slight relationship between projects.
Appellants, at a time of great need for new energy
sources, are seeking to halt development of three
grades of coal deposits distributed through four states
and involving nine federal agencies and at least fifteen
different forms of ‘‘federal action.” Clearly the devel-
opments projected for this Region by appellants them-
selves do not have even the minimal interrelationships
one might have expected to find in Callaway, Stamm
or Trout Unlimited.

v
The majority is to he credited for perceiving the

“practical difficulties’? inherent in appellants’ conten-
tion that NEPA allows the courts to impose upon the

Tia

Government the duty to plan comprehensively.”
Truly, such an interpretation could result in the gen-
eration of an infinite progression of comprehensive
plans which would have to be justified by comprehen-
sive impact statements. It seems obvious that NEPA
was enacted as a means of facilitating agency decision
making and not as a means of paralyzing the federal
government. However, I am concerned that rather
than nipping such fallacious notions in the bud, the
majority attempts to demonstrate that appellants’ ar-
guments have a legal basis."* Although its dicta is con-
structed on prior dicta and on CEQ Guidelines of
questionable force as legal authority, it has laid the
groundwork for the perpetuation of this erroneous
and impractical position in future eases.

From its review of the record, the majority finds
‘‘overwhelming”’ evidence that “the federal appellees
have for vears been endeavoring to develop a plan for
regional development of the coal resources in the
Northern Great Plains.” However, the most remark-
able thing about the first two such ‘‘endeavors’’ was
the fact that they collapsed without producing any
plan for regional development. The only currently
pending activity which could lead to the ‘regional
plan” anticipated by the majority is the Northern
Great Plains Resources Program Study, but there is
no assurance at present that it will be any more sue-
cessful than the earlier studies. Furthermore, the
Study was never intended to produce a comprehensive

18 Majority Op. at 746-747, —— U.S. App. D,C. at
, —— F. 2d at —————_-.
16 Jd. at 745-747, —— U.S. App. D.C. at .
F. 2d at

7 Td. at 748, bhi U.S. App. D.C. at . F. 2d at ——.

§92-551—75-——T

72a

regional plan for coal neice sat The Draft In-
terim Report states:

The primary objective of the Northern Sunt

Plains Resource Program is to provide infor-

mation and a comprehensive 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.
+ * * e 2

The three coal development profiles do not
represent plans for development, but are instead
tools designed to help measure what the effects
may be at different rates of development.

Northern Great Plains Resource Program, Draft Re-
port, Sept. 1974, I-4, 5 (emphasis in original). Not
only is the Study insufficient to be viewed as a regional
EIS, as the majority correctly notes,” its issuance will
probably add little to this court’s ability to determine
the need for a regional EIS if on remand the federal
appellees adhere to their position that they have not
yet adopted or proposed a regional development
program.

Since review of the record and consideration of
those cases which have dealt with claims for the prep-
aration of more “comprehensive” impact statements
lead me to agree with the District Court * that NEPA
does not require the preparation of an EIS covering
all ecoal-related development in the entire Northern
Great Plains at this time, there is no need to remand
this case for further proceedings. Nor is there any
justification in further delaying projects which are
already supported by impact statements through con-
tinuation of this court’s temporary injunction.

Jd. at 749-750, —— U.S. App. D.C. at " F. 2d

at
1” See Conclusions of Law, © 6, App. 247.

73A

If appellants believe at some point that an EIS is-
sued in support of federal action on a particular
project fails to adequately consider all reasonably re-
lated environmental impacts, they can challenge that
project under the normal procedure for judicial re-
view of impact statements. Furthermore, in the event
the various agencies take concrete steps toward the es-
tablishment of a federally coordinated program of
regional development, appellants will of course be able
to bring their suit if the agencies take a “major fed-
eral action’’ to implement that program without the
preparation of the necessary impact statements.”

While the majority’s attempt to force the federal
government to engage in comprehensive long-range
plamning might in some sense he socially ‘‘good,” the
question before this court is not what the agencies
“ought to” do but rather what NEPA requires that
they do. To my mind it clearly does not require or
authorize the continuance of the temporary injunction
to hold federal agencies in check because the majority
are suspicious of what the federal agencies might do.
I accordingly respectfully dissent.

* The majority’s suggestion that the agencies might be re-
quired to prepare an impagt statement or a statement of reasons
to justify why they are not taking major federal action to con-
tro] development of the Northern Great Plains (Majority Op.
at 755, U.S. App. D.C. at F, 2d at —— and
n. 37) is clearly not consistent with the provisions of NEPA.
Despite the current size of the federal bureaucracy, the realm
of things the federal government does not do is still rather
large. A good many of these inactions undoubtedly have an
impact on the environment, but it is difficult to see how any
agency would be able to produce this nearly infinite number of
“negative” impact statements and still carry out its assigned
functions. In any event, NEPA clearly limits the requirement
for preparation of impact statements to “proposals for... major
federal actions.”

‘
j }

~~ ——e ea

a ee ee

APPENDIX B

STERRA CLUB ET AL., APPELLANTS,
v.

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 Jan. 3, 1975)

Before BAZELON, Chief Judge, and WRIGHT
and MacKINNON, Circuit Judges.

ORDER

Per Curiam.

On consideration of appellants’ motion for a lim-
ited injunction pending appeal, and it appearing from
the Secretary’s answer to Plaintiffs’ Revised Supple-
mental Interrogatory No. 31 that the Secretary is in
the process of approving or disapproving the mining
plans and railroad rights-of-way set forth in the East-
ern Powder River Coal Basin Environmental Impact
Statement and that such an injunction is required to
maintain the status quo pending disposition of this
appeal, it is

Ordered by this court that the aforesaid motion is
granted, and it is

(75a)

76a

Further ordered by this court that the Secretary
of the Interior take no action concerning the mining
plans and railroad vights-of-way set forth in the East-
ern Powder River Coal Basin Environmental Impact
Statement pending further order of this court.

MacKinnon, Circuit Judge (dissenting) :

In the foregoing order the majority grant appel-
lants’ motion for a limited injunction pending appeal
and order the Secretary of the Interior to refrain
from any action concerning the projects covered by
the Eastern Powder River Coal Basin Environmental
Impact Statement until further order by this court.

Although the Powder River Statement is attached
to the record as an exhibit, the court below was not
called upon to rule as to the adequacy of the state-
ment to support the particular federal actions it cov-
ers, and therefore that issue is not before this court
on appeal. If appellants believe that that particular
statement is not sufficient to justify approval of the
mining plans and rights-of-way, the proper method
for the expression of such concerns is to file an appeal
challenging that statement. All of appellants’ argu-
ments relating to the necessary scope of impact state-
ments on projects within the region can be raised in a
challenge to a particular statement. The appeal pres-
ently before this court is not an appropriate vehicle
for obtaining de facto review in this circuit of the
sufficiency of impact statements covering various fed-
eral projects within appellants’ ‘‘Northern Great
Plains Region.” It obviously is less convenient for
appellants to be required to litigate each statement,
but the jaw was not written for tue convenience of the
Sierra Club and other litigants.

The Powder River Statement is only one of three
statements which have been issued on projects within

77a

the region. See Supplemental Finding on Remand No.
9a. The adequacy of the statement relating to the
Westmoreland mine has heen litigated following ap-
proval of that application. The Montana District
Court held in Redding v. Morton, Civ. No. 74-12-
BLG (D.Mont. May 1, 1974) that that statement com-
plies with the requirements of NEPA, and that case is
on appeal to the Ninth Circuit. This court obviously
cannot enjoin the Ninth Cireuit from upholding the
Montana District Court and thus allowing the develop-
ment to proceed. Nor could it enjoin the parties from
proceeding with a project approved by another court.
The Peahody Coal Company project has also been ap-
proved but apparently it has not yet been challenged
in court (Supp. Memo of Intervening Defendants-
Appellees at 12). If an action is initiated to review
the adequacy of the statement covering that project,
this court could not prevent another court from en-
tertaining that action. The effect of the proposed in-
junction, then, is to remove one of the three impact
statements from the normal process of judicial review
of the adequacy of such statements.

In Scientists Institute for Public Information, Ine.
(SIPT) v. AEC, 156 U.S. App. D.C. 395, 411 n.68, 481
F.2d 1079, 1095 n68 (1973), this court stated:

The decision whether the time is ripe for a
NEPA statement on an overall research and
development program is a mixed question of
law and fact. * * *

With respect to judicial review of such mixed
questions of law and fact, the Supreme Court
has authorized a practical standard of review,
the “‘rational basis”? test, under which the court
will reverse the agency’s decision if it has no
rag in the record and no reasonable basis
in law.

784

The agency decision in the instant case is that no fed-
eral program currently exists which requires the prep-
aration of a comprehensive impact statement covering
appellants’ ‘‘Northern Great Plains Region.” An
agency decision as to the scope of an impact statement
should receive at least as much deference as a decision
on the timing of the preparation of a statement. Thus
the Department of the Interior’s decision not to issue
a regional statement should also be upheld if it has
a rational basis.

Rather than proceeding on a regional basis, the See-
retary has decided to prepare a national policy gov-
erning coal leasing activities. The Government’s posi-
tion has consistently been that an impact statement
must be prepared before any major federal action re-
lating to coal development will be taken within the
“region’’ or elsewhere. See Supp. Finding on Remand
No. 6. Any statement will cover cumulative as well as
incremental impacts. Where it finds that a statement
covering related actions within an area is appropriate,
a broader statement will be issued. The preface of the
Powder River Statement, quoted in Supp. Finding on
Remand No. 8, illustrates the considerations which
determine the appropriate scope of such a statement.
The Secretary has also initiated the Northern Great
Plains Resources Program Study which by chance
covers roughly the same area as the vague “region”’
described in appellants’ complaint. However, this
Study is merely intended to provide a framework for
future decision-making and is not designed to produce
an impact statement for particular federal actions.
The court may feel that it would be beneficial for the
Government to engage in the type of comprehensive
long-range regional planning which appellants advo-
cate, but it cannot be logically argued that the Gov-

794

ernment’s approach to the problem is without a ra-
tional basis.

The instant ease is distinguishable from SIPI which
required the preparation of a comprehensive impact
statement covering a research and development pro-
gram for liquid metal fast breeder reactors. SIPI
dealt with one program of research into a particular
type of reactor being conducted by a single federal
agency and funded by a separate annual appropria-
tion. It was reasonable to view this program as a “‘ma-
jor federal action” for which an overall impact
statement would be appropriate. In contrast, appel-
lants in the instant case seek to bring to a halt any
federal action which may be related to the develop-
ment of deposits of three grades of coal distributed
through four states. Nine federal agencies and at least
15 types of federal action are involved. The record
discloses no action directed to appellants’ entire ‘‘re-
gion” except the Study. It is certainly not necessary
for the Government to prepare an impact statement
prior to studying a problem.

SIPI involved an irretrievable commitment of re-
sources since each expenditure on the development of
a particular style of breeder reactor made it more
difficult to abandon the investment in favor of an
alternate design. No such commitment of resources
exists in the instant case. The fact that one mining op-
eration is approved does not compel or impel the
approval of other mining proposals elsewhere in the
region. While some projects will undoubtedly be inter-
related (e.g. a mine and associated rail rights-of-
way), the impact statements on such projects will be
coordinated and must consider eummlative effects, In
general the development of any portion of the region
ean proceed independently of prior development
elsewhere.

80a

Absent proof of the existence of an explicit or im-
plicit federal program covering the entire region and
absent an irretrievable commitment of regional re-
sources from the approval of individual federal ac-
tions, it cannot be said that the Government has
abused its discretion by declining to prepare a re-
gional impact statement. Thus the facts in STPI are
distinguishable from the situation here presented and
that decision does not require that appellants’ conten-
tions be upheld by this court.

The Fifth, Ninth and Tenth Cireuits have recently
upheld impact statements covering individual projects
which were alleged to be part of larger regional devel-
opments. Sierra Club v. Stamm, 507 F. 2d 788 (10th
Cir. Nov. 29, 1974);* Sierra Club v. Callaway, 499
F. 2d 982 (5th Cir. 1974);* Environmental Defense
Fund v. Armstrong, 487 F. 2d 814 (9th Cir. 1973),
cert. denied, 416 U.S. 974, 94 S. Ct. 2002, 40 L. Ed. 2d
4 (1974).° The projects dealt with in those cases
were more closely related and were confined to smaller
geographic areas than are the proposed federal actions
attacked by appellants in the instant case, and yet the
cirenit courts in each of those cases found that an
impact statement for the affected region was not
required.

For the foregoing reasons I respectfully dissent
from the issuance of the subject injunction.

‘This involved the relation of the Strawberry Aqueduct &
Collection System to the larger Bonneville Unit and Central
Utah Projects.

* This involved the relation of the Wallisville Reservoir Proj-
ect to the larger Trinity River Project.

* This involved the relation of the New Melones Dam to the
larger Central Valley (California) Project.

APPENDIX C

United States Court of Appeals for the District of
Columbia Cireuit

[Civil Action 1182-73, Filed, Octob

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1178%3A01. Public record. Not legal advice.