Opposition — Kleppe v. Sierra Club

Supreme Court, U. &

FiLED

DEC 3 1975

antes CLERK

No. 75-552

KENT FRIZZELL, SECRETARY OF THE INTERIOR, ET AL.,

Petitioners,

v.

SIERRA CLUB, ET AL.

No. 75-561

AMERICAN ELECTRIC POWER SYSTEM, ET AL.,

Petitioners,

Vv.

SIERRA CLUB, ET AL.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF FOR RESPONDENTS IN OPPOSITION

Bruce J. TERRIS,

SUELLEN T. KEINER,

1908 Sunderland Place, N.W.

Washington, D. C. 20036

Attorneys for Respondents

WILSON - Eras Puintine Co. inc. - Re 7-6002 - WASHINGTON. D. C. 20001

INDEX

OPINIONS BELOW

e

QUESTIONS PRESENTED Do

ä

TABLE OF CITATIONS

CASES:

American Construction Co. v. Jacksonville T. &

X. R. Co., 148 U.S. 87/2 (1898) ...............................

Brotherhood of Locomotive Firemen & Enginemen

v. Bangor & A. R. R., 389 U.S. 327 (19677

Cady v. Morton, — F.2d ——, 8 ERC 1097

a

Chelsea Neighborhood Ass’n v. United States Post-

al Service, 516 F.2d 378 (C. A. 2, 19755557

Conservation Society of Southern Vermont, Inc. v.

Secretary of Transportation, 508 F.2d 927

(C.A. 2, 1974), vacated and remanded, ——

nt Ee

Daly v. Volpe, 514 F.2d 1106 (C. A. 9, 1975) ........

Friends of the Earth v. Coleman, 518 F.2d 323

s aceon

Hamilton Brown Shoe Co. v. Wolf Bros., 240 U.S.

RN .

Hanover-Star Milling Co. v. Metcalf, 240 U.S. 403

T

Indian Lookout Alliance v. Volpe, 484 F.2d 11

e 8

Natural Resources Defense Council v. Callaway,

—— F.2d , 8 ERC 1273 (C. A. 2, 19755

SCRAP v. United States, 422 U.S. 289 (1975) .......

12

9, 10,

11, 13

II

TABLE OF CITATIONS—Continued

Page

Sierra Club v. Callaway, 499 F.2d 982 (C.A. 5,

— ö ku] 1 13

Sierra Club v. Stamm, 507 F.2d 788 (C. A. 10,

rr Rem er ANAS FL. Bab aon 13

Trout Unlimited v. Morton, 509 F.2d 1376 (C. A.

%/çêͤ . ͥu ⅛ꝛ DIT. 12, 13

STATUTES AND REGULATIONS:

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

3 ——— .

Innen,

Section 102 (2) (A), 42 U.S.C. 4332 (2) (A) —

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

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

rr, 2

D inccitnsitnicsiinncnnttpnticntoniciintnscinsibecds

>

— —

on K 88

MISCELLANEOUS:

Bureau of Land Management, Burlington-Northern

Inc. Environmental Analysis Record; Proposed

Railroad, Douglas to Gillette Wyoming (August

% 6

Council on Environmental Quality, Memorandum

to the Heads of Agencies, November 26, 1975 15

Melcher, Review and Analysis of Phase I Report

of North Central Power Study (1972) ............... 5

Montana Coal Task Force, Coal Development in

Eastern Montana (173 .ñũʒ71:éÿ 5

Montana Environmental Quality Council, First

r 5, 7

Northern Great Plains Resource Program, Interim

1 KK W 11, 19, 20, 22

Statement of George L. Turcott, Assistant Direc-

tor, Bureau of Land Management, Before the

Subcommittee on Fisheries, Wildlife and the

Environment of the House Committee on Mer-

chant Marine and Fisheries, 94th Cong., Ist

Sess., September 8, 1975 14

III

TABLE OF CITATIONS—Continued

Stern and Gressman, Supreme Court Practice

r

Sulfur Oxide Control Technology Assessment

Panel, Final Report on Projected Utilization of

Stack Gas Cleaning Systems by Steam-Electric

Plants (April 1973) ..........

21

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-552

KENT FRIZZELL, SECRETARY OF THE INTERIOR, ET AL.,

. Petitioners,

SIERRA CLUB, ET AL.

No. 75-561

AMERICAN ELECTRIC POWER SYSTEM, ET AL.,

- Petitioners,

SIERRA CLUB, ET AL.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF FOR RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A, pp.

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

court of appeals of June 17, 1974, denying respondents’

2

motion for injunction pending appeal (Resp. App. A,

pp. la-3a, infre) is not reported. The order of the court

of appeals of January 3, 1975, granting a temporary in-

junction pending appeal (Pet. App. B, pp. 75A-80A) is

reported at 509 F.2d 533. The order of the court of

appeals of November 7, 1975, denying the federal peti-

tioners’ motion to dissolve the temporary injunction

(Resp. App. B, pp. 4a-5a, infra), is not reported. The

order of the court of appeals remanding the case to the

district court for supplemental findings (Pet. App. C,

pp. 81A-83A) is not reported.

The opinion of the district court (Pet. App. D, pp.

85A-101A)}, its supplemental findings of fact Pet. App.

E, pp. 103A-116A , and its order of November 14, 1975,

granting respondents’ motion to modify the temporary

injunction ‘Resp. App. C, pp. 6a-7a, infra), are not re-

ported.

JURISDICTION

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

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

dated September 3, 1975, Mr. Justice Rehnquist extended

the time for the federal petitioners to file a petition for

a writ of certiorari to and including October 10, 1975.

By order dated September 9, 1975, Mr. Justice White

extended the time for the American Electric Power Sys-

tem et al. (hereafter “the power company petitioners”)

to file their petition for a writ of certiorari to and in-

cluding October 10, 1975. The petitions for writs of

certiorari were filed on October 9 and 10, respectively.

The jurisdiction of this Court is invoked under 28 U.S.C.

1254/1).

QUESTIONS PRESENTED

1. Whether the National Environmental Policy Act

(“NEPA”) permits federal agencies to take numerous

major federal actions related to the massive development

of coal resources in the Northern Great Plains without

first preparing and considering a regional environmental

impact statement related to the cumulative environmental

impacts of federal actions within the entire region.

2. Whether this case is in a proper posture for review

by this Court since the court of appeals has made an

interlocutory decision remanding the case to the district

court for further proceedings to determine issues of both

fact and law.

STATUTE INVOLVED

Section 102 of the National Environmental Policy Act,

42 U.S.C. 4332, is set forth in the federal (p. 3) and

power company (p. 3) petitions.

STATEMENT

Respondents brought suit on June 13, 1972, in the

District Court for the District of Columbia seeking a

declaratory judgment, mandamus and injunctive relief

against the federal petitioners relating to the develop-

ment and exploitation of the vast coal reserves of the

Fort Union and Powder River formations located in east-

ern Montana, northeastern Wyoming, western North

Dakota and western South Dakota—the Northern Great

Plains region. The federal actions which respondents

sought to enjoin include issuing, granting or approving

coal prospecting and exploitation permits, coal mining

leases and mining plans, water options and contracts,

diversions of water from and placement of structures in

navigable waterways and permits for rights-of-way.

The federal petitioners have already taken numerous

actions related to coal development in the Northern Great

Plains region. Fourteen federal coal leases, issued prior

to the effective date of NEPA, are currently being strip-

mined under federally approved mining plans. Pet. App.

4

A, p. 5A, note 4. Since January 1, 1970, when NEPA

took effect, 29 additional coal leases, covering 137,802

acres, have been issued, 97 prospecting permits (which

convey the right to obtain leases) covering 685,280 acres

have been granted, and water-option contracts for 601.

000 acre-feet of water per year have been issued. An-

swers of Secretary Morton to Plaintiffs’ Interrogatories,

Exhibit C, App. 49-50; Supplemental Answers of Secre-

tary Morton, App. 149-156; Exhibit 1 to Federal Defend-

ants’ Motion for Summary Judgment, App. 173-188. Five

mining plans which authorize strip-mining have also been

approved. Pet. App. A, p. 10A, note 13.

Meanwhile, the federal petitioners have received appli-

cations for approval of 16 other mining plans. Id. at

10A-11A. The Secretary of the Interior has announced

that he would approve four of these mining plans for

four additional mines in northeastern Wyoming if he

were not presently enjoined from doing so. Affidavit of

Thomas S. Kleppe, para. 14, attached to petitioners’ Ap-

plication for a Stay Pending Review on Writ of Certio-

rari. The federal defendants also have pending 42 com-

petitive lease applications, 82 preference right leases, 19

applications for coal-related rights-of-way, 41 applica-

tions for water option contracts, and two applications

for permits for structures in navigable rivers. Pet. App.

A, pp. 8A-9A, including notes 7, 8 and 9, 12A-13A.

Respondents claimed that the federal petitioners had

violated in the past, and were continuing to violate, Sec-

tions 102(2)(A), (C and (D), 42 U.S.C. 4332 (2) (A),

(C) and (D), of NEPA by taking these actions related

to coal development in the Northern Great Plains region

without preparing and considering a regional environ-

mental impact statement, systematic interdisciplinary

In addition to the mining plan approvals mentioned in the court

of appeals’ opinion, the Secretary of Interior approved the Amax

mine in northeastern Wyoming in November 1975.

studies and a study of appropriate alternatives concern-

ing the cumulative environmental impacts of the numer-

ous federal actions relating to coal development in this

area. Respondents contended that the environmental im-

pacts of the massive coal development in the Northern

Great Plains would be enormous. Presently, the North-

ern Great Plains region is a largely uninhabited agrarian

region with majestic unspoiled vistas, large isolated areas

devoted to ranching or recreational uses, and abundant

wildlife. The projected development of the region’s coal

resources will permanently destroy much of the region’s

environment by converting it into a major industrial

complex. The large strip mines, mine-mouth electric and

coal gasification plants, railroads, aqueducts, transmis-

sion lines and other installations related to this coal de-

velopment will cause an enormous, adverse impact on

land use, water supply, water and air quality, wildlife,

aesthetics and other elements of the environment.

For example, it has been variously estimated that the

land to be stripmined for this coal development will cover

from 30 square miles per year—or a total of more than

1000 square miles during the development’s projected 35-

year duration—to more than 3000 square miles in north-

eastern Wyoming alone. The record below contained

documents which show that no strip-mined land has yet

been fully reclaimed and that the region’s climate, scarce

water supply, and thin topsoil make it extremely unlikely

that any of it will be successfully reclaimed. Montana

Coal Task Force, Coal Development in Eastern Montana,

p. 33 (1973); Melcher, Review and Analysis of Phase I

jeport of North Central Power Study, pp. 12, 20-21

(1972); Montana Environmental Quality Council, First

Annual Report, p. 143 (1972). A federal inter-agency

task force has stated that “acceptable reclamation of

these semi-arid lands has yet to be demonstrated.” Sulfur

Oxide Control Technology Assessment Panel, Final Re-

port on Projected Utilization of Stack Gas Cleaning Sys-

tems by Steam-Electric Plants, p. 69 (April 1973). The

Bureau of Land Management has recognized the adverse

environmental impacts of this coal development in just

the Powder River basin in Wyoming (Bureau of Land

Management, Burlington-Northern Inc. Environmental

Analysis Record: Proposed Railroad, Douglas to Gillette

Wyoming (August 1973) pp. 2, 5, 7-8):

About 21 billion tons [of coal] are strippable with

16 billion tons being on the east side of the basin in

what is known as the Wyodak zone. This Wyodak

zone outcrops and extends south for approximately

90 miles from a point about 20 miles north of Gil-

lette which if developed for coal can result in a

total disturbance in excess of 200,000 acres.

This procedure of [strip] mining will totally disrupt

the existing ecosystem. Rehabilitation of this type

of practice will not approach restoration.

The resultant boom with its enormous population

pressures may cause more human resource problems

than the ecological damage of strip mining itself.

C. Adverse Impacts That Cannot Be Avoided:

The Overall Impact: The total impact of enabling

the proposed railroad line for coal development will

transform large areas of the Powder River Basin

into an abnormal, imbalanced ecosystem. Both plant

and animal species, in disturbed areas will be either

eradicated completely, displaced, or temporarily

eliminated. Air and water quality will be lowered

by material carried in suspension. The visual and

noise pollution will continue until the energy re-

sources are depleted. It is doubtful that the human

7

impact as mentioned under impacts can be com-

pletely mitigated.

Moreover, toxic mining spoils threaten to pollute ground

water supplies and the removal of coal formations which

have served as the area’s principal aquifers threatens

to reduce the supply of ground water significantly. Mon-

tana Environmental Quality Council, First Annual Re-

port, supra, pp. 143-144.

The irreparable environmental damage to the region

is well-summarized by the court of appeals (Pet. App.

A, p. 3A):

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 qual-

ity, air quality, wildlife, population 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 ac-

company the strip mines.

On February 14, 1974, the district court granted the

motions of the federal and power company petitioners

for summary judgment. It concluded, inter alia, that

since the federal petitioners had decided not to develop

a regional program or plan for their numerous actions

related to development of the coal resources in the

Northern Great Plains, NEPA did not require that they

prepare a regional environmental impact statement. Pet.

App. D, pp. 98A-99A.

On June 17, 1974, the court of appeals denied the

respondents’ motion for an injunction pending appeal

because the requested injunction was too broad. How-

ever, the court noted that “the spectre of significant harm

to large tracts of valuable wilderness still remains” and

8

urged that the federal petitioners exercise “substantial

restraint” in approving coal development activity in the

Northern Great Plains while the appeal was pending.

Resp. App. A, pp. 2a-3a, infra.

After a sua sponte remand to the district court for

the record to be updated and certain factual questions

answered (Pet. App. C, pp. 81A-83A; Pet. App. E, pp.

103A-116A), the court of appeals heard oral argument

on December 17, 1974. On January 3, 1975, it granted

respondents’ motion for a limited injunction to prevent

the imminent approval of four mining plans and railroad

rights-of-way. Pet. App. B, pp. 75A-80A.

On June 16, 1975, the court of appeals issued its deci-

sion on the merits of the case. The court held that the

federal petitioners, by exercising their power to approve

leases, mining plans, rights-of-way and water options,

were attempting to control development of coal resources

in the Northern Great Plains which constituted major

federal action within the meaning of NEPA (Pet. App.

A, p. 39A). However, as to the proper timing for a

regional impact statement, it remanded the case to the

district court for the federal petitioners to decide whether

such a statement would be prepared and to apply a four-

factor balancing test in deciding whether the time was

ripe for a statement. Id. at 43A-44A. At the same time,

the court of appeals continued the temporary injunction

of January 3, 1975, in order to “preserve, in large part,

the status quo” pending the federal petitioners’ decision

whether to prepare a regional environmental statement.

Id. at 50A-51A.

On November 7, 1975, the court of appeals denied the

motions of the federal and power company petitioners to

dissolve the temporary injunction and, at the same time,

remanded to the district court respondents’ motion to

modify that injunction in order to prevent approval of

— ů [i: ifJmüü ee K — -

the mining plan for the Amax mine in the Eastern

Powder River Coal Basin. Resp. App. A, pp. 4a-5a, infra.

On November 11, 1975, the Secretary of Interior decided

that the Amax mining plan should be approved. On No-

vember 14, 1975, the district court enjoined that approval

insofar as it extended beyond a period of two years or

the final resolution of this litigation. Resp. App. C, pp.

6a-7a, infra.

, ARGUMENT

Since this case involves massive development of coal

resources in a large area of four states, there can be no

question that it is of substantial importance. However,

the interlocutory nature of the court of appeals’ decision

and narrow legal issues that are presented make this

case inappropriate for review by this Court at the pres-

ent time. Rather, the problems of energy development

and environmental protection which are presented here

can be resolved most expeditiously if the case is allowed

to proceed on remand to the district court, as contem-

plated by the court of appeals. Pet. App. A, pp. 44A,

47A-50A.

1. The federal petitioners’ contention that the decision

of the court below is in conflict with SCRAP v. United

States, 422 U.S. 289 (1975) (“SCRAP II”), is based on

obvious and serious misstatements of the holding of the

court of appeals. In SCRAP II, this Court held that

“the time at which the agency must prepare the final

‘statement’ is the time at which it makes a recommenda-

tion or report on a proposal for federal actions” (em-

phasis in original). The federal petitioners’ claim that

the decision below is in conflict with SCRAP II rests upon

their repeated characterization (Pet. 11, 14, 15, 17, 18,

19) of that decision as holding that preparation of an

environmental impact statement is required whenever fed-

eral officials are merely “contemplating” certain action

10

and that a statement “must precede” a proposal for ma-

jor federal action.

In fact, the court of appeals held (Pet. App. A, p.

42A):

We think it patent that the term “proposals” does

not encompass every suggestion, however unlikely to

reach fruition, made by a federal officer. Certainly

federal officers are entitled to dream out loud with-

out filing an impact statement. Thus we think it

proper to inquire, before an EIS is required, wheth-

er the proposal for action has progressed beyond the

“dream” stage into some tangible form so that the

time for an impact statement is ripe. * * We

should note, however, that the “ripeness” necessary

before a statement is required is slight. Prepara-

tion of a statement must precede, or at least accom-

pany, preparation of the recommendation of report

on the proposal, so that the agency may have the

opportunity to assess the environmental impact of

its plans before committing itself, even tentatively,

to action. (emphasis added).

Subsequently, the court reaffirmed its holding: [Als we

have made clear, a comprehensive EIS should accompany

the proposal for action * * *” (emphasis added). Id. at

48A. Thus, the court of anreals’ ruling is based directly

on the requirement of Seciion 102(2)(C) of NEPA that

an environmental impact statement be prepared to “ac-

company the proposal [for major federal action] through

the existing agency review processes.” 42 U.S.C. 4332

(2)(C). It is also obviously consistent, indeed almost

identical, with the holding of this Court in SCRAP II

that an environmental statement must be prepared when

the agency “makes a recommendation or report on a

proposal for federal action.”

Moreover, the issue of whether, in the circumstances

of the present case, the time is yet “ripe” for a re-

11

gional impact statement to be required was not decided

by the court of appeals. Instead, it was specifically left

open to be resolved upon remand, first by the federal peti-

tioners and, if they decide not to prepare a statement, by

the district court. The district court was directed to con-

sider four factors (Pet. App. A, p. 43A):

How likely is the program to come to fruition, and

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

ingful information presently available on the effects

of implementation of the program, and of alterna-

tives and their effects? To what extent are irre-

trievable commitments being made and options pre-

cluded as refinement of the proposal progresses?

How severe will be the environmental effects if the

program is implemented?

These four factors relate directly to this Court’s holding

in SCRAP II that the kind and timing of an environ-

mental impact statement depends on the circumstances of

a particular case.

Furthermore, the facts in this case are significantly

different than those in SCRAP II. This case arises in

the midst of a large number of federal actions concerning

coal development in the Northern Great Plains region.

Many federal approvals of coal leases, prospecting per-

mits, mining plans, water options and rights-of-way have

already been made and numerous additional applications

are currently awaiting federal action. The federal peti-

tioners have already prepared numerous studies and re-

ports attempting to control development of coal re-

sources in the Northern Great Plains. See Pet. 5-6; Pet.

App. A, pp. 5A-7A. These studies culminated most re-

cently in the Interim Report of the Northein Great Plains

Resource Program (hereafter NGPRP Report), a fed-

eral-state inter-agency study begun in June 1972 and de-

signed “to coordinate on-going activity and build a policy

2 Respondents are lodging the report with this Court.

12

framework which might help guide resource management

decisions in the future.” Id. at 6A.

2. The federal petitioners claim (Pet. 16-17) that

there is a conflict among the circuits concerning the issue

of appropriate scope for an environmental impact state-

ment. The weakness of petitioners’ claim of conflict is

reflected by the fact that they cite six separate cases

but do not discuss any in sufficient detail to show whether

a conflict actually exists. We submit, on the contrary,

that a careful reading of these cases and of other cases

involving the appropriate scope of an environmental state-

ment will show that all of these cases, like the decision

below, depend on their particular facts.

For example, the federal petitioners claim a conflict be-

tween the decision below and Chelsea Neighborhood Ass’n

v. United States Postal Service, 516 F.2d 378 (C.A. 2,

1975). However, in that case the court rejected an en-

vironmental statement as inadequate because it did not

contain certain comprehensive analysis. The court below

cited another Second Circuit decision which supports the

principle of comprehensive environmental statements.

Conservation Society of Southern Vermont, Inc. v. Secre-

tary of Transportation, 508 F.2d 927 (1974), vacated

and remanded for reconsideration, —— U.S. „No.

74-1413. Even more recently, the Second Circuit has

again held an environmental statement invalid because

of its limited scope. Natural Resources Defense Council

v. Callaway, —— F. 2d , 8 ERC 1273 (1975). Thus,

the Second Circuit cases all support the decision of the

court below and certainly do not conflict with it.

Petitioners cite three Ninth Circuit cases, Daly v.

Volpe, 514 F.2d 1106 (1975), Friends of the Earth v.

Coleman, 518 F.2d 323 (1975), and Trout Un-

limited v. Morton, 509 F.2d 1376 (1974), where the

Ninth Circuit ruled that broad environmental statements

——E-à—ßP i

13

were not required and approved statements covering only

individual phases of larger projects. However, more re-

cently, in Cady v. Morton, F.2d ——, 8 ERC 1097,

1101-1102 (1975), the Ninth Circuit required a broad,

lease-wide impact statement and rejected a single min-

ing plan statement as inadequate in scope. These cases,

where the same Circuit has held that a broader environ-

mental impact statement is or is not required, show clear-

ly that this determination depends largely on the particu-

lar facts of a case.

Moreover, the decisions which petitioners cite show even

in isolation how much they depend on their own particular

facts. Trout Unlimited v. Morton, supra, and Sierra

Club v. Callaway, 499 F.2d 982 (C.A. 5, 1974), depend

heavily on the fact that Congress had separately ap-

proved and authorized funding for each project at issue

in those cases. In Sierra Club v. Stamm, 507 F.2d 788

(C.A. 10, 1974), the court did not require a broader

environmental statement because the overall project would

not be completed until sometime in the next century and

there was a clear commitment to prepare environmental

statements on other components of that project. On the

other hand, in Indian Lookout Alliance v. Volpe, 484

F.2d 11 (C.A. 8, 1973), the court of appeals required

the preparation of an environmental statement broader

in scope than that which the federal agency had pre

pared although narrower than the plaintiffs desired. The

particularized nature of a determination concerning the

proper scope of an environmental statement was pointed

out by this Court in SCRAP II, supra: “In order to de-

cide what kind of an environmental impact statement

need be prepared, it is necessary first to describe accu-

rately the ‘federal action’ being taken.”

Even if it could be said that there was a conflict be-

tween the legal principles in the decision below and cases

in other circuits, such a conflict would be inappropriate

14

for resolution at this time. As we will discuss, the

decision below is interlocutory and will require detailed

findings of fact on remand to apply the principles laid

down by the court of appeals to the facts of this case.

Until the legal principles are applied to the facts, it is

impossible to ascertain whether the decision below is in

conflict with any other case.

Moreover, any alleged conflict of circuits is of little

importance for future cases in view of the determina-

tion of the Department of the Interior to prepare regional

environmental statements in the future. The federal peti-

tioners have recently acknowledged that regional environ-

mental impact statements are necessary in order “to look

at both specific individual actions and their cumulative

impacts.” Statement of George L. Turcott, Assistant Di-

rector, Bureau of Land Management, Hearings on the

Administration of the National Environmental Policy

Act of 1969 before the Subcommittee on Fisheries, Wild-

life and the Environment of the House Committee on

Merchant Marine and Fisheries, 94th Cong., Ist Sess.,

September 8, 1975, p. 9. To “illustrate the possible use

of regional program EIS,” Mr. Tureott stated (id. at

8):

There are many existing and proposed energy-

related projects in the three-State area of Montana,

North Dakota, and South Dakota. These include

coal mining, coal gasification, power plants, water

developments, transportation systems, pipelines, and

transmission lines. These projects, to the extent Fed-

eral actions are involved, must meet NEPA require-

ments for environmental assessment and EISs.

3. The federal petitioners entirely ignore the fact that

the decision of the court below is squarely based on the

positions of the principal environmental agencies of the

federal government. Both the Council on Environmental

Quality and Environmental Protection Agency have con-

15

cluded that a regional environmental statement for the

Northern Great Plains is needed for responsible decision-

making and is required by NEPA.

The Guidelines of the Council on Environmental Qual-

ity provide (40 C.F.R. 1500.6 (d) (1) that “broad, pro-

gram statements will be required in order to assess the

environmental effects of a number of individual actions

on a given geographical area (e.g., coal leases) * * *.”

On December 28, 1973, a memorandum from the Chair

man of the Council on Environmental Quality described

how the Department of Interior was violating the Na-

tional Environmental Policy Act concerning coal develop-

ment in the Northern Great Plains region in numerous

respects and stated that “the important requirements for

adequate environmental analysis” required, inter alia

(Addendum A to Appellants’ Reply Brief in the court of

appeals, p. A-5):

Preparation of a draft “coal development program

environmental impact statement” encompassing the

regional and secondary impacts of coal development

on Federal and Indian lands in the Northern Great

Plains.

On January 15, 1974, the Chairman of the Council sent

that memorandum to the Secretary of Interior with his

own letter which stated (id., p. A-1):

An extensive amount of coal is already committed

for development—in the form of outstanding leases

and pending applications for preference right leases

—and the Council believes that this pending devel-

opment must be given timely and careful examina-

tion, as required by NEPA.

Just recently, in a “Memorandum to the Heads of Agen-

cies” dated November 26, 1975, the Chairman of the

Council on Environmental Quality explained this Court’s

decision in SCRAP II and pointed out (p. 4):

16

Agencies which sponsor incremental actions with

cumulative significant impacts (e.g., individual coal

leases or highway segments) should continue the

practice of preparing program statements covering

the cumulative environmental effects of the broader

programs, as prescribed in Sec. 1500.5 of CEQ’s

Guidelines.

The Environmental Protection Agency has likewise con-

cluded that the National Environmental Policy Act re-

quires preparation of a comprehensive environmental im-

pact statement before federal actions can be taken con-

cerning coal development of the Northern Great Plains

region. In identical letters to Secretaries Morton and

Butz, the Administrator of EPA stated (App. 82; Pet.

App. A, p. 37A, note 28):

Environmental impact statements prepared on a

project-by-project basis in accordance with the Na-

tional Environmental Policy Act are not adequate to

evaluate the overall regional impact. What is needed

is a comprehensive, systematic and interdisciplinary

study of coal development in this region, similar to

the Southwest Energy Study and the oil shale de-

velopment program, which satisfies the letter and

spirit of the National Environmental Policy Act.

4. The federal petitioners rely on the fact that a num-

ber of environmental impact statements have been pre-

pared relating to the coal development in the Northern

Great Plains. However, as the court of appeals pointed

out (Pet. App. A, pp. 10A-11A, note 15), no claim has

ever been made in this case that any of these statements

even purports to analyze the cumulative environmental

impacts of coal development in the region of the Great

Plains.

The Coal Programmatic Impact Statement (see Pet. 4

and note 1), which considers federal leasing policy for

the entire country, analyzes only coal leasing and none

17

of the other federal actions—prospecting permits, rights-

of-way, water options, etc.—related to coal development.

The Eastern Powder River Coal Basin environmental

statement (see Pet. 8) considered only four mining plans

and railroad rights-of-way in a portion or northern Wyo-

ming. Neither environmental statement even purports

to be a regional analysis of the total effects of, and al-

ternatives to, coal development.

Consequently, the federal petitioners specifically told

the court of appeals that both of these statements were

irrelevant to the present case. When the federal peti-

tioners lodged these draft statements in the court of

appeals, the court asked the federal petitioners to explain

their significance tv this litigation. Letter of Robert A.

Bonner, Chief Deputy Clerk to Edmund B. Clark, De-

partment of Justice, September 13, 1974. The govern-

ment replied (Supplemental Memorandum of the Federal

Appellees, September 27, 1974) :

We call the Court’s attention only to the existence

of these draft impact statements. Because the con-

tents of the statements are not relevant, there is

nothing missing from the statements that could be

relevant in any respect to this case. (emphasis

added)

Contrary to the claim of the federal petitioners (Pet.

7), they have not prepared environmental statements on

all major federal actions relating to coal development in

the Northern Great Plains. On the contrary, there have

been at least 29 federal coal leases issued in the region

since January 1, 1970, and not a single environmental

statement has been prepared. This failure is a plain vio-

lation of NEPA. See Cady v. Morton, supra, 8 ERC at

1100. Not a single environmental statement has been

prepared on any of the 97 prospecting permits or the

numerous water-option contracts which conveyed rights

18

to hundreds of thousands of acre feet of water in federal

reservoirs to private companies. The few other environ-

mental statements relating to the region have involved

individual mining plans.

None of the basic regional issues underlying the past

and proposed federal actions concerning coal development

in the Northern Great Plains has ever been analyzed

in any environmental impact statement:

(1) whether low heat-value western coal is cheap-

er or more expensive when delivered to utilities in

the mid-west and other areas than higher heat-value

midwestern and eastern coal;

(2) whether strip mining and ene:gy-production

facilities should be allowed throughout the Northern

Great Plains region or should be concentrated in one

or a few areas within the region in order to limit

the area of environmental harm;

(3) whether strip mining should be restricted to

areas in the region where the chances of reclamation

are best;

(4) whether it is feasible to deep mine the coal

in the region;

(5) whether conversion to electricity or gas should

be done within the region or the coal should be

transported to the place of use;

(6) whether transportation of coal out of the re-

gion is preferable by railroad or slurry pipeline;

and

(7) how searce water supplies should be allocated

between agriculture, fish and wildlife, various kinds

of energy developers and other users.

Moreover, none of these environmental statements con-

siders the cumulative impact of development. This im-

pact may be drastically different than the impact of a

19

single project considered in isolation. As the NGPRP

Report said (p. 117):

Is the impact of two mines or power plants in the

same area twice as great as the impact of one, is

it larger, or is it smaller?

It is quite possible that the impacts resulting from

the assumed coal development profiles in the NGP

may be greater than the projection and analytic

techniques used have been able to delineate.

The court of appeals suggested two other situations

where the cumulative environmental impacts would be

significantly different (Pet. App. A, p. 38A, note 28):

To cite two examples beyond those suggested above,

the availability of water and manpower in the Re-

gion is limited. Coal mining is crucially dependent

upon both. Thus development of one mine is con-

siderably more than an irretrievable commitment to

that mine. In the case of water supply, it forecloses

the possibility of another, environmentally prefer-

able mine. In the case of manpower, it creates pres-

sure for a population influx which, while minor for

one mine, may be cumulatively considerable.

5. The federal petitioners claim (Pet. 18-19) that

they have complete discretion to determine the appropri-

ate region for the preparation of an environmental] im-

pact statement and the exervise of this discretion should

be overturned only if arbitrary, capricious, or an abuse

of discretion. They then claim that the environmental

impact statement on the Eastern Powder River Coal

Basin was an appropriate area on which to do a regional

statement. However, as we have noted, the federal peti-

tioners informed the court of appeals that the Eastern

Powder River statement was unrelated to the issues in

this case. They clearly cannot claim for the first time

in this Court that the Eastern Powder River state-

ment constitutes a regional statement meeting the re-

quirements of the court of appeals. Even if they can

meke this contention at such a late date, it raises com-

plicated issues of fact which should be initially resolved

by the courts below.“

The federal petitioners also suggest (Pet. 19, note 17)

that the region described by the court of appeals was

chosen by the respondents. This suggestion is simply

frivolous. The area described in the complaint is the

physical area encompassed by the Fort Union and Powder

River coal formations and was taken from documents of

the federal petitioners themselves. This area had been

repeatedly described, prior to the filing of the complaint,

by the Administrator of EPA and the Secretaries of

Interior and Agriculture as the appropriate region for

federal studies. Pet. App. A, pp. 35A-38A. Subsequently,

the federal petitioners’ own detailed study of the coal

development, the NGPRP Report, covered 63 counties in

northwestern Wyoming, eastern Montana, and the west-

ern Dakotas (p. 3 and Plates A-3, B-4, B-5 and B-6),

the exact same area described in the complaint. Thus,

whatever dispute might arise in some other case con-

cerning the appropriate area for a regional statement,

there can be no dispute that the identical region described

in the complaint, the court of appeals’ opinion and the

federal petitioners’ own documents is the appropriate

one here.

6. As the federal petitioners correctly observe (Pet.

10, note 12), the court of appeals’ decision here is inter-

locutory and does not constitute a final resolution of the

We further note that even if, after resolution of the issues of

fact, the Eastern Powder River statement was held to constitute an

adequate regional statement, it obviously cannot justify proceeding

with any federal decisions in the other areas of the Northern Great

Plains in Montana, the Dakotas and even parts of northeastern

Wyoming outside the Eastern Powder River Coal Basin.

21

legal and factual issues in this case. Instead, the court

of appeals found that it was unclear whether the time

was ripe for a regional environmental statement to be

required under NEPA (Pet. App. A, pp. 47A-48A) and

remanded that issue to the district court for the federal

petitioners to decide whether they would prepare such a

statement and what the federal role in region would be

(id. at 48A-50A). If the government decides not to pre-

pare a statement, the district court will then decide

whether, under the general standards laid down by the

court of appeals (id. at 43A), the time is ripe for re-

quiring a regional environmental statement under NEPA

(id. at 44A). This determination will presumably be

made after the parties have had an opportunity to sup-

plement the existing factual record concerning matters

which have occurred since the case was last before the

district court in the fall of 1974. Thus, a final judgment

on the merits of this case has not been reached but

awaits action by the government and further findings

by the district court.

The present case clearly falls within this Court’s rule

that a case which has been remanded by the court of

appeals is “not yet ripe for review.” Brotherhood of Loco-

motive Firemen & Enginemen v. Bangor & A.R.R., 389

U.S. 327, 328 (1967). In the absence of some excep-

tional reason, this Court will not usually grant a petition

for a writ of certiorari to review a non-final judgment.

Stern and Gressman, Supreme Court Practice, Sec. 4.19,

p. 180 (4 ed. 1969). Thus, in American Construction Co.

v. Jacksonville T. & K. R. Co., 148 U.S. 372, 384 (1893),

the Court ruled that it “should not issue a writ of cer-

tiorari to review a decree of the circuit court of appeals

on appeal from an interlocutory order, unless it is nec-

essary to prevent extraordinary inconvenience and em-

barrassment in the conduct of the cause.” Similarly, in

Hanover-Star Milling Co. v. Metcalf, 240 U.S. 403, 408-

409 (1916), the Court held that such a lack of finality

“of itself alone furnished sufficient ground for denial”

of a petition for a writ of certiorari. See also Hamilton

Brown Shoe Co. v. Wolf Bros., 240 U.S. 251 (1916).

We submit that petitioners have failed to show that

this case meets any of these criteria for interlocutory re-

view. They have shown no “exceptional reason” nor any

“extraordinary inconvenience” which requires that the

decision of the court of appeals be reviewed at this time

rather than allowing the case to proceed upon remand

to the district court.

Respondents agree with the federal petitioners (Pet.

21) that “[i]t is not necessary to suspend development

of coal resources [in the Northern Great Plains] for

several years.” However, we submit that the expedi-

tious resolution of this case depends entirely upon the

federal petitioners’ own actions. Despite acknowledging

the need for comprehensive regional analysis since 1972

(see pp. 15-16, supra), they have delayed in preparing

such studies and have continually relied upon legal argu-

ments to avoid this requirement.

The Interim Report of the NGPRP constitutes a sub-

stantial basis for preparing a regional environmental im-

pact statement. If the federal petitioners begin today

to prepare a regional statement on the basis of that re-

port, it would probably be completed as soon as, or almost

as soon as, this Court reaches a decision on the merits.

Consequently, such a statement would not only provide

the best possible assurance that federal actions will pro-

tect the environment of the region as far as possible,

but also would not significantly delay the federal peti-

tioners’ decisions concerning development of the region.“

The preparation of a regional impact statement has recently

been urged by the governors of Montana, Wyoming, North Dakota,

South Dakota and six other western states, who compose the West-

We therefore submit that the public interest will best be

served if certiorari is denied so that the federal peti-

tioners turn their attention to the detailed regional analy-

sis which they themselves have often admitted is es-

sential.

CONCLUSION

For the foregoing reasons, we respectfully submit that

the petitions for writs of certiorari should be denied.

BRUCE J. TERRIS,

SUELLEN T. KEINER,

Attorneys for Respondents

DECEMBER 1975

ern Governors’ Regional Energy Policy Office. On October 29, 1975,

they unanimously adopted a resolution )Resp. App. D, pp. 8a-9a,

infra) which urges all parties to the present litigation to reach a

negotiated settlement that would include, inter alia, preparation of

a* comprehensive regional plan for energy development in the Nor-

thern Great Plains” by the federal petitioners. The governors

also urged that the court of appeals’ temporary injunction be con-

— — prevent federal activities in the region until such a plan is

comp t

APPENDICES

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

SEPTEMBER TERM, 1973

Civil Action No. 1182-73

No. 74-1389

SIERRA CLUB ET AL.,

Appellants

V.

Rocers C. B. MORTON, SECRETARY OF THE

UNITED STATES DEPARTMENT OF INTERIOR, ET AL.

Before Tamm and Leventhal, Circuit Judges

ORDER

This case is before the Court on appellants’ motion for

an injunction pending appeal and for expedited hearing,

and the responses thereto.

Federal appellees are responsible for the issuance of

coal prospecting permits and coal mining leases, the

approval of strip mining plans and the granting of water

options and right-of-way over federal lands and water-

ways (hereinafter referred to collectively as “coal de-

velopment activities”). Appellants’ complaint sought a

declaratory judgment that federal appellees are violating

Section 102(2) of the National Environmental Policy

Act of 1969 (NEPA), 42 U.S.C. § 4332 (2), by au-

thorizing coal development activities in an area appellants

denominate the “Northern Great Plains Region” without

first preparing and considering a comprehensive state-

2a

ment of the cumulative environmental impact of appellees’

actions as a whole on that Region The complaint also

prayed for an injunction against any further actions by

appellees in furtherance of coal development in that Re-

gion until such a comprehensive environmental impact

statement was prepared. As defined by appellants, the

“Northern Great Plains Region” is comprised of eastern

Montana, northeastern Wyoming and the western portions

of the Dakotas.

On February 28, 1974, the District Court granted sum-

mary judgment and judgment on the pleadings in favor

of federal appellees and intervening appellees and an ap-

peal was noticed. Appellants’ motion for an injunction

pending appeal was denied by the District Court on March

26, and is now renewed before this Court. It appears

that appellants seek an injunction as broad in scope as

that requested in the complaint below, i.e., a stay of

all actions by the federal appellees authorizing any coal

development activity in the “Northern Great Plains Re-

gion.”

The papers before this Court are ambiguous or silent

as to certain dispositive facts, such as the exact nature

of the various environmental studies pending before the

federal appellees, whether those studies have been is-

sued, what actions will be taken by the federal appellees

before completion of those studies, whether any applica-

tions for coal development activities are now before the

appellees, and when such applications may be approved.

Without adequate knowledge of these facts, we are re-

luctant at this time to grant the broad injunctive relief

requested by the appellants.

Despite this uncertainty, the spectre of significant harm

to large tracts of valuable wilderness still remains. We

are concerned lest the federal appellꝰes approve applica-

tions for coal development activity in the “Northern

3a

Great Plains Region” allowing consequential and perhaps

irreversible action to be taken before this appeal is de-

cided. The validity of any such approval turns on an

issue of substantial public importance presented by this

appeal, i.e., whether a comprehensive environmental im-

pact statement, encompassing all of the federal appeilees’

actions relating to coal development activity in that Re-

gion is presently required. To the extent that these ap-

pellees consummate any such action pending the appeal,

our jurisdiction to decide that issue as to those actions

may be defeated.

The Court accordingly urges that substantial restraint

be exercised in the granting of authority for coal de-

velopment activity pending a disposition of this case

on its merits.

The motion to expedite appeal is granted to the ex-

tent that the case will be set for hearing on the Sep-

tember calendar of the court. Counsel shall agree to, and

submit to the court, a briefing schedule which provides

for the filing of final briefs no later than August 20,

1974.

Per Curiam

4a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

SEPTEMBER TERM, 1973

Civil Action No. 1182-73

No. 74-1389

SIERRA CLUB ET AL.,

Appellants

v.

RocERS C. B. MORTON, SECRETARY OF THE

UNITED STATES DEPARTMENT OF INTERIOR, ET AL.

Before: BAZELON, Chief Judge, and WRIGHT and MAC-

KiNNON, Circuit Judges

ORDER

On consideration of appellants’ motion to modify the

temporary injunction filed January 3, 1975, and the cross-

motions of the federal and intervening appellees to dis-

solve that injunction, it is

ORDERED by the court that appellants’ motion to

modify the injunction is hereby remanded to the District

Court for consideration and disposition. See Sierra Club

v. Morton, —— U.S. App. D. C. ; , 514 F.2d 856,

883 (1975).

It is FURTHER ORDERED by the court that the

cross-motions of the federal and intervening appellees to

dissolve the injunction are hereby denied.

Per Curiam

For the Court

/s/ Hugh E. Kline

HuGH E. KLINE

Clerk

6a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 1182-73

[Filed Nov. 14, 1975, James F. Davey, Clerk]

SIERRA CLUB, et al.,

Plaintiffs,

V.

Rocers C. B. MorTON, et al.,

Defendants.

ORDER

This matter came before the Court pursuant to fie

Order of the Court of Appeals, dated November 7, 1975,

remanding to this Court, for consideration and disposi-

tion, plaintiff-appellants’ motion to modify the temporary

injunction issued by the Court of Appeals on January 3,

1975, as well as on plaintiffs’ motion for a temporary

restraining order. In view of the Court of Appeals’ ex-

isting injunction and it appearing to the Court from the

pleadings and affidavits submitted by the parties that

plaintiff-appellants’ motion to modify the injunction

should be granted to the extent indicated below, it is

hereby

ORDERED:

(1) That, plaintiff-appellants’ motion for a temporary

restraining order is hereby denied;

(2) That, plaintiff-appellants’ motion to modify the in-

junction of January 3, 1975, is hereby granted in that:

(a! The surface-mining operations of intervenor-de-

fendant Amax Inc. are enjoined from continuing on fed-

— — — — —

N— — — — — —

— ee

7a

eral lands, pursuant to the mining and reclamation plan

for the Belle Ayr South mine approved by the federal

defendants on November 11, 1975, for more than a period

of two years commencing from the date of this order or

until such time as a final decision on the merits of this

case is rendered and it is otherwise decreed, subject to

such terms and conditions as may bk’ vovided therein.

(b) During the period set forth in subparagraph (a)

above, intervenor-defendant Amax Inc. may proceed with

surface-mining operations at the Belle Ayr South mine

pursuant to the federally approved mining and reclama-

tion plan but is restrained from mining more than ap-

proximately 126 acres of land each year.

(e) The Secretary of the Interior is hereby enjoined

from permitting surface-mining operations on federal

coal lands pursuant to the mining and reclamation plan

for the Belle Ayr South mine of Amax Inc., approved by

the Secretary on November 11, 1975, beyond the period

set forth in subparagraph (a) above.

SO ORDERED.

/s/ June L. Green

JUNE L. GREEN

United States District Judge

Nov. 14, 1975

Date

8a

APPENDIX D

PuBLIC POLICY RESOLUTION 75-17

Albuquerque, New Mexico October 29, 1975

URGING NEGOTIATION OF ISSUES IN LAWSUIT

OF SIERRA CLUB v. MORTON

WHEREAS, the Western Governors’ Regional Energy

Policy Office favors the orderly development of the re-

gion’s energy resources as being in the best interests of

the nation and our states; and

WHEREAS, such orderly development requires a com-

prehensive regional plan developed by the federal and

state governments working as full and equal partners;

and

WHEREAS, the potential judicial review of Sierra

Club v. Morton will entail unnecessary procedural delays

that may well never produce a coherent comprehensive

regional plan; and

WHEREAS, limited development of our coal resources,

in conjunction with the development of a comprehensive

regional plan, will permit the nation’s need for coal to

be met while adequately protecting the environment,

economy, and quality of life of our region and its citi-

zens.

NOW, THEREFORE, BE IT RESOLVED that the

Western Governors’ Regional Energy Policy Office

strongly urges all the parties of record to the lawsuit

resolve it by negotiation, provided that any negotiated

settlement include the following provisions:

1. The Department of Interior will initiate a compre-

hensive regional plan for energy development in the

Northern Great Plains, including the states as equal

partners in the development of such plan;

—— ——̃—ꝛ — T

ůBiin—U U n— 4 —: me ee

9a

2. The parties agree to a continuation of the present

injunction and the Department of Interior’s policy of

restraint until the comprehensive regional plan is com-

pleted, except in limited areas to be designated by the

parties to the lawsuit, subject to approval by the gov-

ernor of the state in which the area is located, or, if the

governor of a state so requires, subject to compliance

with state plant siting and reclamation laws by all en-

ergy developers within the designated areas;

3. Within the designated areas, energy development

may proceed without regard to the injunction provided

that it is done in compliance with federal and state laws,

including any required site-specific environmental impact

statements.

(This resolution is respectfully submitted to the Secre-

tary of Interior of the United States and to the Sierra

Club.)

Proposed by the State of Wyoming.

Adopted unanimously.

Western Governors’ Regional Energy Policy Office, Inc.

Jerry Apodaca, Governor of New Mexico

Chairperson of the Board